Vinod Kumar and Another vs Nayan Singh and Another

P.C. Agarwal, J.—Both these appeals are by the owner-cum-driver of the mini truck No. M.P.-09/KB/3248 which met with an accident on 1.12.1999 injuring Nayansingh (R-1) in M.A. No. 1191/2002 and Sanjay Yadav (R-l) in M.A. No. 1195/2002 with certain others. Accident Claims Tribunal, Barwani by a common order dated 22.4.2002 awarded Rs. 26,500/- with interest � 10% per annum to Sanjay Yadav and Rs. 44,207/- with interest � 9% per annum to Nayan Singh while exonerating the New India Assurance Company Limited (the Insurance Company). As per claim both claimants had been travelling in the mini truck as owners of goods. Narayansingh had Jawar and fertilizer while Sanjay Yadav had bags of spices with him. According to both of them due to rash and negligent driving by Poonamchand (A-2) the vehicle had overturned injuring both of them and other passengers going towards village Keli market. Both Nayan Singh (R-1 ) and Sanjay Yadav (R-2) had claimed that they had suffered grievous injuries.

The Tribunal had held that the truck had overturned due to rash and negligent driving by Poonamchand (A-1). However, while holding that both Nayan Singh (R-1) and Sanjay Yadav (R-2) were injured in the accident it had found that they were not travelling in the capacity of owners of goods in the goods vehicle but it held that these two had been mere passengers paying fare with 30-40 other passengers.

Certainly, the accident had happened on 1.12.1999, it being a case post 1994 amendment in the Motor Vehicles Act, 1988, u/s 147 of the said Act as stood after amendment the Insurance Company was liable to cover risk in respect of goods vehicles (in the words of the provision itself):

(i) against any liability which may be incurred by him in respect of death or bodily injury to any person including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused or arising out of the use of the vehicle at the public place.

Certainly, the mini truck has been the goods vehicle meant for carrying goods and not carrying passenger. Nayan Singh (A.W. 1) had claimed that he had two bags for fertilizer and one bag of Juwar with him. However, he was not sure as to what had happened to these bags after the accident, no bills or vouchers for purchase of bags have been produced. There had been no evidence that he had taken away these bags after the accident. Sanjay (A.W. 2) had claimed that he had spices with him. He has not disclosed the weight of such spices and in what container the same were kept. He has claimed to be a spices vendor. Sitaram (A.W. 3) had supported him. As per F.I.R., Ex. P/l, 25-30 passengers were sitting in the mini truck. There has been no reference of goods being carried by them with. Nayan Singh (A.W. 1) had admitted that after seating of the passengers in the mini truck no space was left for keeping the goods or luggage in the same. Though the mini truck had been seized after the accident vide Ex. P/6 on 1.12.1999 itself by the police, yet there had been no reference of the goods found loaded in the truck in memorandum of seizure. None of the appellants had examined himself to support the case of Nayan Singh or Sanjay Yadav that they had been travelling in the mini truck as owners of the goods loaded in the same. The learned Tribunal did not believe Nayan Singh (A.W. 1) or Sanjay Yadav (A.W. 2) in their claim that they had been travelling with their goods in the mini truck. Such a finding of fact based on evidence on record cannot be said to be erroneous and thus the learned Tribunal below has not erred in exonerating the Insurance Company from the liability.

It has been argued that in earlier two cases the Insurance Company was held responsible and thus it is estopped from denying its liability. Copies of the award in Claim Case No. 57/2000, Kalla v. Vinod Kumar and Claim Case No. 53/ 2000 Saraswatibai v. Vinod Kumar and Claim Case No. 58/2000, Goribai v. Vinod Kumar and Ors. decided on 27.4.2001 have been submitted, however, thereby no estoppel is granted against the Insurance Company as the Insurance Company had not itself agreed to pay any amount to those claimants by way compromise. Thus New India Assurance Company Vs. Shri Satpal Singh and Others, does not help the appellant. Certainly in absence of any definite finding that Nayan Singh and Sanjay Yadav had been travelling with their goods to the market, the appellants are not entitled to the benefit of the views taken in Harishankar Tiwari v. Jagru and Ors. 1987 ACJ 1 and Oriental Insurance Co. Ltd. Vs. Veerappa and Others, , New India Assurance Co. Ltd. Vs. Asha Rani and Others, and National Insurance Co. Ltd. Vs. Saidali, to fasten any liability on the Insurance Company. Fact necessary for fastening such liability have to be proved by the evidence on record.

Thus, in my considered opinion, there has been no ground for interference in the award passed by the Tribunal below. Both appeals have no force and are hereby dismissed.