United India Insurance Co.Ltd. vs Ram Kali & Qrs.

Rajes Kumar, J.—These are nine appeals filed by the United India Insurance Company Limited against the orders of the Motor Accident Claims Tribunal/ADJ Court No.2, Barabanki in MACP No.320/03 (Km. Bitaula and others v. United India Insurance Company Limited and another). MACP No.299/03 (Smt. Shanti Devi and another v. United India Insurance Company Limited and another), MACP No.338/03 (Smt. Ram Kali and others v. United India Insurance Company Limited and another), MACP No.359/03 (Smt. Phulmata & others v. United India Insurance Company Limited and another), MACP No.346/03 (Shardhey and others v. United India Insurance Company Limited and another), MACP No.330/03 (Smt. Ketaki & other v. United India Insurance Company Limited and another), MACP No.406/03 (Smt. Kamla Devi and others v. United India Insurance Company Limited and another), MACP No.337/03 (Dhodhey and others v. United India Insurance Company Limited and another), MACP No.324/03,(Smt. Sukhrani and others v. United India Insurance Company Limited and another) all dated 2552007.

The brief facts of the case are that on 182003 at about 1.00 a.m. in village Bindaura, Bindaura Canal Bridge, near Police Station Masauli, district Barabanki a Truck No.U.R32T/7694 loaded with morang sand turtled resulting serious injuries to Maikoo, Jawahir, Radhey Shyam, Kunware, Pawan Kumar and Nankhoo, who were travelling in the truck as labourers for unloading of morang sand. All the aforesaid six persons were admitted in the hospital, but were subsequently died. The aforesaid claim petitions had been filed by the heirs of the deceased. By the impugned order all the claim petitions have been allowed and compensations have been awarded to the heirs of the deceased.

Being aggrieved by the order, the appellant has filed the present appeals.

Heard Sri U.P. S. Kushwaha, learned counsel appearing on behalf of the appellants and Sri Rajendra Jaiswal, learned counsel appearing on behalf of the respondents/claimants.

Sri U.P.S. Kushwaha, at the very outset, submitted that the appellant had not obtained permission under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act") and, therefore, is not in a position to challenge the orders of the Tribunal on merit mainly on the negligent of the driver and on quantum. However, he submitted that the appellant''s case is covered under the clauses of Section 149 (2) of the Act. Elaborating the argument, he submitted that in fact thirty passengers were boarded in the truck and in the accident 12 persons have died. He submitted that out of 12 persons, only ten persons filed the claim petitions. The claim petitions of all the ten persons have been allowed. Out of which, in case of six persons, namely, Maikoo, Jawahir, Radhey Shyam, Junware, Pawan Kumar and Nankhoo, the Insurance Company has been held liable to pay the compensations treating them, regular labours for loading and unloading of the owner of the vehicle. In respect of four persons, though the compensation was awarded against the owner of the vehicle but the appellant has been directed to pay the amount to the claimants with the right to recover the same from the owner of the vehicle. He submitted that the Tribunal has illegally arrived at the conclusion that six persons, namely, Maikoo, Jawahir, Radhey Shyam, Kunware, Pawan Kumar and Nankhoo were the regular labours of the owner. He submitted that nowhere in the statement, the owner has stated that they were regular labours. He submitted that the truck was goods carriage vehicle, therefore, the passengers traveling in such truck were illegal passengers travelling at their own risks and not covered by the Insurance Cover Note/Policy. Therefore, the Insurance Company cannot be held tiable for compensation in case of death of such passengers. 6. In support of the contention he relied upon the following decisions:

New India Assurance Co. Ltd. v. Vedwati & Ors., reported in 2007 (3) ALJ, 193, (Supreme Court).

M.V. Jayadevappa and another v. Oriental Fire & General Insurance Co. Ltd. and others, reported in (2004) 13 Supreme Court Cases, 43.

National Insurance Co. Ltd. v. Mommithi Subbhayamma and others, reported in (2005) 12 Supreme Court Cases, 243.

National Insurance Co. Ltd. v. Kaushalaya Devi & others, reported in 2008 AIR SCW 4025 : (AIR 2008 SC 2252).

F.A.F.O. No.2063 of 2008, New India Assurance Company Ltd. v. Laxmi Narain and others, D.B., Allahabad (Paras 16 to 20).

National Insurance Co. Ltd. v. Baljit Kaur and others, reported in (2004) 2 Supreme Court Cases 1 : (AIR 2004 SC 1340) (Para 19).

The Oriental Insurance Company Limited v. Meena Variyal & others, reported in 2007 AIR SCW 2362 : (2007 (3) ALJ 596 (Paras 5, 10 and 13).

National Insurance Com. Ltd. v. Challa Bharathamma and others, reported in (2004) 8 Supreme Court Cases 517 : AIR 2004 SC 4882 (Para 12).

Sri Rajendra Jaiswal, learned counsel for the opposite parties, submitted that one of the F.A.F.O. No. 1008 of 2007 (The United India Insurance Co. Ltd. v. Smt. Gungara and others) arising from the same accident has been dismissed by the Division Bench of this Court on 1632009. He submitted that since the Insurance Company has not been allowed permission under Section 170 of the Act, the Insurance Company cannot argue anything on merit and cannot assail the finding recorded by the Tribunal. The Insurance Company, on the facts stated in the impugned order, can only argue that the case is covered under Section 149(2) of the Act. He submitted that the Tribunal has categorically recorded the finding that six deceased persons were the employees of the owner of the vehicle cannot be disputed in the absence of any contrary material. He further submitted that in the statement of the owner of the vehicle dated 1122006 Sri Ajit Kumar Chaurasia has categorically stated that six persons present in the vehicle were his labours for loading and unloading of sand. He further submitted in the Insurance Policy/Cover Note apart from the vehicle, seven persons under the heading passengers are covered which includes drivers. So far as the claim of six persons are concerned, the same has been rightly allowed against the Insurance Company as they were fully covered under the policy and in respect of such persons it cannot be said that compensation has been awarded against the policy.

In support of the contention, learned counsel for the opposite parties relied upon the decisions of the Apex Court in the case of New India Assurance Company Limited v. Asha Rani, reported in (2003) 2 SCC 223 : (AIR 2003 SC 607). He further submitted that so far as the case of four persons are concerned, the Apex Court, while fixing the liability against the owner of the vehicle, has directed the Insurance Company to pay the amount and recover the same from the owner of the vehicle so that the claimants should not suffer. Therefore, the direction of the Tribunal in this regard in consonance with the law laid down by the Apex Court.

Having heard learned counsel for the parties, we have perused the impugned orders of the Tribunal and the records.

In the record, the Insurance Policy is available. Under the Insurance Policy, apart from the vehicle under the hearing "passengers" seven persons are mentioned. Therefore, apart from the vehicle, seven persons were also insured and, therefore, in respect of the seven persons, the Insurance Company was liable to indemnify the owner of the vehicle as per the Insurance Policy. Six persons, namely, Maikoo, Jawahir, Radhey Shyam, Kunware, Pawan Kumar and Nankhoo, who died, are held to be the regular labours of the owner of the vehicle travelling in the vehicle for loading and unloading of sand. In the statement dated 1122006 of Sri Ajit Kumar Chaurasia, the owner of the vehicle, it has been categorically admitted that these six persons were the labours for loading and unloading travelling in the vehicle. There is no material on record to the contrary. Therefore, the finding recorded by the Tribunal in this regard is finding of fact and cannot be interfered. We are also of the view that since the permission under Section 170 of the Act has not been allowed, the scope of argument is very limited. The appellants have to make out the case under Section 149 (2) of the Act on the basis of the findings recorded by the Tribunal because they cannot be allowed to dispute the findings of the Tribunal on merit. (See National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, reported in (2002) 7 SCC 456 : (AIR 2002 SC 3350) and a Division Bench decision of this Court in F.A.F.O. No.225 of 2001, National Insurance Co. Ltd. v. Muzaffar Iqbal and others decided on 852008). One of the F.A.O. No. 1008 of 2007 (The United Indian Insurance Co. Ltd. v. Smt. Gungara and others) arising from the same accident, has already been dismissed by a Division Bench of this Court on 1632009.

We have examined the judgments cited by learned counsel for the appellant referred hereinabove. In all the cases, it has been held that in the insurance of goods carriage vehicle, which does not include passengers in case of any injury or death of such passengers moving through such goods carriage vehicle, the insurance company could not be liable, inasmuch as such passengers were traveling as unauthorized passengers. In the case of National Insurance Co. Limited v. Baljit Kaur (supra): (AIR 2004 SC 1340), the Apex Court held that the insurer could not liable for gratuitous passengers as they were not covered under the insurance policy.

There is no quarrel about the law laid down by the Apex Court. However, in none of the cases relied upon by the learned counsel for the appellant, the goods carriage vehicle alongwith the persons under the heading "passengers" were insured under the insurance policy. Apex Court held that the insurer could not be liable for gratuitous passengers carried in such vehicle because they were not covered under the insurance policy. While in the present case, in the insurance policy, which is available on record and perused by us apart from the vehicle under the heading passengers "seven persons are mentioned" and premium has been paid in respect thereof. It appears that the insurer has got the seven persons insured because of his nature of business, which was being carried on by him. The insurer was carrying on the business of transportation of sand in which the permanent labourers for loading and unloading are required.

In view of the above, we are of the view that since six persons, who were held to be regular labourers for loading and unloading were covered under the insurance policy, in respect of such persons, the insurance company has been rightly liable under the cover of the insurance policy. In the case of National Insurance Co. Ltd. v. Swaran Singh and others, reported in (2004) 3 SCC, 297 : (AIR 2004 SC 1531). Apex Court held that in case of breach of the policy condition, the owner of the vehicle is held liable to third party. The insurer has to satisfy a decree, pay compensation to the third party and then liable to realise from the owner of the vehicle. This view has been taken in the case of New India Assurance Co. Ltd. v. Asha Rani and others, reported in (2003) 2 SC 223 : (AIR 2003 SC 607) and by the Division Bench of this Court in the case of United India Insurance Co. Ltd. v. Smt. Prema Devi and others, reported in 2003 (2) TAG 750.

For the reasons stated above, we do not find any merit in the appeals.

In the result, all the appeals fail and are accordingly, dismissed.