The New India Assurance Company vs Smt. Meena Devi and Others and Smt. Chanderwati and Others

K.C. Puri, J.—By this common order I intend to dispose of FAO No. 40 of 1990 titled as The New India Assurance Co. v. Smt. Meena Devi and Ors. and FAO No. 49 of 1990 titled as The New India Assurance Co. v. Smt. Chanderwati and Ors., as both these appeals arise out of the same award and incident. These appeals have been directed by the appellants for dismissal of the claim petition for grant of compensation amount. The facts are being taken from FAO No. 40 of 1990.

The facts in brief are that Kanwar Pal s/o Tej Singh, aged 27 years, a resident of Behbalpur (Ballabgarh), was the husband of claimant Smt. Meena Devi, father of claimants Santosh Kumar and Master Raj Kumar and son of claimant Rej Singh, as well as Sukhbir, aged 30 years, son of Sudh Raj, resident of village Bukharpur (Ballabgarh), who was the husband of the claimant Chandwati, father of claimant, Kumari Seema, Master Kalu, Baby Meetu and son of claimants Sudh Raj and Smt. Sheelu, died in this accident involving milk van No. HRP 5646 driven by respondent No. 1 Rashid Khan, owned by respondent No. 2, Prem Singh and insured with New India Assurance company, Faridabad, arrayed as respondent No. 3.

According to the allegations of the claimants, on 20.9.1987, aforesaid Kanwar Pal and Sukhbir boarded the aforesaid Milk tanker on way from Jewar (U.P.) to Palwal, as they were to supply milk to a contractor at Palwal and the milk was loaded in this van, which was being driven by respondent Rashid Khan in a rash and negligent manner and all the persons, including the deceased and one Rajbir Singh, asked him to drive it cautiously, but in vain and when this milk van reached near village Pelak, the driver noticed an on coming bus and he could not keep control over the steering and for the same his vehicle turned turtle and alongwith others, Sukhbir Singh and Kanwar Pal received multiple injuries and these two persons succumbed to the same. Then aforesaid Rajbir Singh lodged a report of this accident with the police and at this very stage, it would noted that after due investigation the police challaned respondent Rashid Khan for the commission of offences punishable under Sections 279/337/338 and 304A of the Indian Penal Code.

Claimant Meena Devi, who is the widow of Kanwar Pal, alongwith their sons and father of Kanwar Pal has filed petition No. RBT 31 of 1989 Meena Devi and Ors. v. Rashid Khan and Ors. and have averred therein that said Kanwar Pal was aged 27 years at the time of death and was engaged in the supply of milk and he used to earn Rs. 600/- per month by doing so and was employed with the contractor and in his death they have lost the sole bread earner of the family and are entitled to receive a sum of Rs. 2,00,000/- (Rupees two lacs only), as compensation on that account and apart from the said driver, even Prem Chand (respondent No. 2), the owner of the tanker, as well as the said Insurance Company (respondent No. 3) are liable to pay the amount of compensation to them, whereas Chand Wati widow of Sukh Raj, alongwith their daughters, son and parents of the deceased have filed petition No. 32 of 1989, Chandwati and Ors. v. Rashid Khan and Ors., and have pleaded therein that the monthly income of deceased Sukhbir was Rs. 4,000/- on account of milk business, agricultural land and medical practice and they have lost their sole bread earner in his death and a sum of Rs. 6,00,000/- be granted to them as compensation on that account and apart from the said driver, the owner as well as the Insurance company are liable to pay the same to them.

In their joint written statement, respondents No. 1 and 2, the said driver and owner of the vehicle involved in this accident, have pleaded that the claimants have no locus standi to file these petitions, which are also not maintainable. They further stated that the milk tanker did not over turn due to rash and negligent driving of respondent No1 Rashid Khan and the claim of the claimants if inflated. Further more, this vehicle was insured with respondent No. 3 and was being driven by respondent No. 1 under the employment of respondent No. 2, the owner insured and for the same, the Insurance company is liable to indemnify the owner. They further pleaded that the deceased were accompanying the milk as employees of the milk contractors, who used to supply milk to respondent No. 2, the owner of this vehicle, at Palwal, and they were not being carried as passengers and the milk tanker in question over turned because of the holes in the road and the mechanical failure and not because of the alleged rash and negligent driving of respondent No. 1 Rashid Khan.

In their separate written statement respondent No. 3, the Insurance company asserted that the driver of the vehicle had no valid driving licence and the deceased were passengers in this vehicle and for the same the insured violated the terms of the policy and on that account they are not liable to indemnify him. They have also resisted the rest of the claim of the claimants.

On the pleadings of the parties, the following issues were framed:

1) Whether the road accident on 20.9.1987 near village Palak, falling within the jurisdiction of Police Station Sadar Palwal, on Palwal Aligarh road and the resultant death of Kanwar Pal s/o Tej Singh occurred owing to rash or negligent driving of milk tanker No. HRP 5646 owned by respondent No2, on the part of its driver respondent No. 1 as alleged? OPP.

2) Whether the victim of road accident was travelling in the tanker in the performance of his job, as an employee of milk contractor, owner of goods, as alleged, and if so, what effect? OPR 1 and 2

3) Whether the driver-respondent No. 1 did not hold a valid driving licence and the vehicle was being driven in contravention of terms and conditions of Insurance Policy, as alleged? OPR

4) Whether the deceased was travelling in the offending goods vehicle, as a gratuitous passenger, as alleged. If so, to what effect? OPR-3

5) In a light of decision on the foregoing issues, whether the claimants, as heirs and dependents of victim of road accident, are entitled to award of compensation. If so, how much and against whom? OPP.

6) Relief.

The parties have adduced oral as well as documentary evidence in support of their respective claim.

The learned Tribunal after appraisal of the same, awarded Rs. 76,800/- each as compensation along with proportionate costs and interest @ 12% per annum from the date of filing of the respective claim petitions till the realization thereof in favour of Smt. Meena and others as well as claimants Smt. Chand-Wati and others against all the three respondents who shall be liable to pay this amount of compensation jointly as well as severally.

Feeling dissatisfied with the above said Award, the appellants have preferred their appeals for enhancement of the compensation amount.

I have heard learned Counsel for the parties and have minutely gone through the records of the case with their help.

Learned Counsel for the Insurance Company has submitted that claimants in paragraph No. 10 of the claim petition have pleaded that deceased along with 15-16 persons were travelling in the Milk Van coming from Jebar (U.P.) to Palwal with the load of Milk. The driver of the vehicle was driving the vehicle rashly and negligently, when the Milk Van reached near Pelak village it turned turtle resulting in death of Sukhbir Milkman and Kanwar Pal. It is further mentioned in paragraph No. 24 of the claim petition that deceased along with 15-16 passengers were engaged in the sale-purchase and for supply of milk. However, Meena Devi (PW-1), while appearing as her own witness has stated that Kanwar Pal, her husband was employed with a Milk Contractor and was carrying the milk in the van under the employment of contractor. Chand Wati (PW-2) widow of Sukhbir has also stated that her husband was a milk supplier. At the time of accident her husband was carrying milk for supply to the contractor.

It is further submitted that both the deceased were carrying milk in the offending vehicle and in view of Full Bench Authority mentioned in Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur and Ors. 1967 A.C.J 158, Insurance Company is not liable to pay the amount of compensation.

Learned Counsel for the Insurance Company has further submitted that in authority Oriental Fire and General Insurance Co. Ltd. v. Hirabai Vithal Nikam and Ors. 1988 ACJ 494, the Full Bench of Bombay High Court has also held that Insurance Company is not liable where a passenger is carried in a goods vehicle for hire or reward.

Learned Counsel for the appellant has further submitted that copy of the policy has been tendered as Ex.RX. The Tribunal has discarded the said policy on the ground that details of terms and conditions are not mentioned. It is submitted that photostat copy of the policy has also been tendered as Ex.R-2, which contains the terms and conditions. As per the terms and conditions of the policy, passenger cannot be allowed to travel in a goods van. So, the Insurance Company is not liable to pay the amount of compensation and the Tribunal has wrongly held that Insurance Company is liable to pay the amount.

However, learned Counsel for the claimants has submitted that the deceased were carrying the goods of the milk contractor and in view of authority Ramesh Kumar Vs. National Insurance Co. Ltd. and Others, , the Insurance Company is liable to pay the amount of compensation.

It is further contended that in authority Harishanker Tiwari v. Jagru and Ors. 1987 Accidents Claims Journal page 1, Hon''ble Apex Court held that insurance Company is liable to pay where the owner/agents of the goods accompanying the goods and travelling in the goods vehicle met with an accident would be deemed to be a passenger, who was being carried for hire or reward.

It is further contended that in authority Sri Pramod Kumar Agrawal and Another Vs. Smt. Mushtari Begum and Others, , Hon''ble Apex Court held that even if there is a death of gratuitous passenger in a goods van in that case the Insurance Company shall indemnify the claimants but can recover the amount from the owner and driver of the vehicle. So, it is submitted that in these circumstances, the appeal preferred by the appellants is without any substance and the same may be dismissed.

I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case.

The main plank of the insurance company is on the Full Bench authority Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur and Ors. case (supra) of this Court. The said authority is not applicable to the facts of the present case. The Tribunal has given a finding that both the deceased were travelling as employees of the contractor to carry the milk. The said finding of the Tribunal does not call for any interference.

Authorities Harishanker Tiwari''s case and Oriental Fire and General Insurance Co. Ltd. v. Hirabai Vithal Nikam and Ors. case (supra) relate to gratuitous passenger carried in a goods vehicle. The Motor Accident Claims Tribunal have been constituted to provide speedy remedy to road accident victims. The pleadings have not to be strictly construed in MACT case. From the testimony of both the claimants, it is clear that deceased were carrying on the milk. It may not be in the knowledge of the claimants where they were carrying the milk of the contractor or belonging to the deceased themselves at the time of filing the claim petition. The copy of the insurance policy has to be seen and this argument of Counsel for the appellants carries weight and stands accepted.

In authority Ramesh Kumar''s case (supra), it has been held that if the persons are taken for loading and unloading purpose in respect of the contract in that case Insurance Company is liable.

In authority Harishanker Tiwari''s case (supra), a Full Bench of Madha Pradesh High Court, it has been held that if the owner of the goods is travelling in a goods vehicle, the Insurance Company is liable. But this view is contrary to the Full Bench view of our own High Court reported as Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur and Ors. case (supra).

In authority Oriental Fire and General Insurance Co. Ltd. v. Hirabai Vithal Nikam and Ors. case (supra), the Full Bench authority of Bombay High Court has held that Insurance Company is not liable to pay compensation in respect of gratuitous passengers.

In authority Ramesh Kumar''s case (supra), Hon''ble Apex Court has been held that in case authorized representative is travelling in any goods carrier, Insurance Company is liable but this finding has been returned while dealing with Section 147(1)(b)(i) of the amended Act, 1994.

In authority Parmod Kumar Agrawal and Ors. case (supra), while dealing with Section 147 of the Act, it has been held that in respect of gratuitous passengers also, the Insurance Company is has to first pay the amount and will recover from the owner/driver later on.

So, the net result of the above discussion is that since the finding of Tribunal to the extent that both the deceased were travelling as an employee of the employer for loading and unloading the milk and as such both the appeals are without any substance and the same stand dismissed.

A copy of this judgment be sent to the trial Court for strict compliance.