High Court of Punjab and Haryana, Chandigarh
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New India Assurance Company v. Santra Devi - FAO-4987-2005  RD-P&H 4299 (18 July 2006)
FAO No. 4987 of 2005
Date of Decision: 11.7.2006
New India Assurance Company .......Appellant Versus
Smt.Santra Devi and others .......Respondents
CORAM:- HON'BLE Mr.JUSTICE UMA NATH SINGH
HON'BLE MR.JUSTICE S. D. ANAND
Present: Mr.Neeraj Khanna, Advocate
for the appellant Insurance Company.
S. D. ANAND, J.
The present FAO is by the Insurer calling into question the validity of the finding recorded by the learned Motor Accident Claims Tribunal, Kaithal (hereinafter referred to as "the Tribunal") under Issue No.2 to the effect that the liability of the appellant and also the driver and registered owner of the vehicle to pay the amount of compensation would be joint and several, though the appellant Insurer would be entitled to recover that amount from the insured. That finding stems from the view recorded by the Tribunal to the effect that the deceased was a gratuitous passenger on the offending vehicle (by which he was travelling).
Respondents No.1 to 5 (hereinafter referred to as "claimants") applied for the award of compensation to the tune of Rs.10 lacs as legal representatives of deceased Nakli Singh @ Nakul Singh who died in the FAO No.4987 of 2005 2
impugned motor vehicular accident on 11.3.1996. As per the finding recorded by the Tribunal, the impugned accident was caused by respondent No.7 Hushan Singh by driving the offending vehicle bearing registration No.HR-37-3859 rashly and negligently on 11.3.1996. The deceased, along with some others, had boarded that Mazda vehicle as gratuitous passenger.
The vehicle was commercial in character and was not meant for passenger traffic.
Insurer appellant denied the very involvement of the offending vehicle in the impugned accident. It was averred, in that context, that no FIR had been registered against that vehicle. It was further averred that respondent No.7 was neither the driver of the offending vehicle nor he was holding any driving licence at the time of impugned accident and he also was not in the employment of the insured at the time of impugned accident.
At the trial, the registered owner of the offending vehicle, (respondent No.6 before this Court), had also denied that vehicle owned by him was involved in the impugned accident. In so far as respondent No.7 is concerned, he had denied having anything to do with the offending vehicle at all. He averred that he does not even have any idea about the registered owner of the vehicle. His further plea was that he also does not hold any driving licence at all. The trial proceeded on the following issues:
1. Whether accident resulting in to death of Nakul Singh alias Nakli Singh took place due to rash and negligent driving of Swaraj Mazda bearing No.HR-37-3859 on the part of its driver respondent No.2 as alleged? OPP
2. If issue No.1 is proved, then to what amount of compensation are the claimants entitled to and from whom? FAO No.4987 of 2005 3
3. Whether claim petition is not maintainable? OPR
4. Whether driver of the offending vehicle did not possess a valid and effective driving licence at the time of alleged accident? OPR-3
5. Relief. Issue No.1 was answered in favour of the claimants and against all the respondents including the Insurer appellant. The finding recorded thereunder was that the impugned accident had been caused by respondent No.7 only by driving the offending vehicle. The entitlement of the claimants to a compensation of Rs.2,35,000/- was upheld under Issue No.2. The further finding recorded thereunder was that the Insurer and also the driver and registered owner of the offending vehicle would be jointly and severally liable for paying the amount of compensation, though the Insurer would be entitled to effect the recovery of the amount paid by it from the insured.
Under that very issue, a finding was recorded that the offending vehicle was commercial in character and was not meant for carrying passengers and that the deceased and some others had boarded it as gratuitous passengers.
Issues No.3 and 4 were not pressed at the time of the arguments before the Tribunal.
We have heard Mr.Neeraj Khanna, counsel for the appellant.
None put in appearance on behalf of the respondents to contest the appeal inspite of service.
The only grievance put forward by the learned counsel for the appellant is that the learned Tribunal ought not to have recorded a finding on point of joint and several liability, particularly in view of its own finding that the deceased was travelling by the offending vehicle as a gratuitous FAO No.4987 of 2005 4
passenger. The learned counsel argued that the view indicated by the Tribunal is contrary to the law of the land.
We have given our careful consideration to the plea advocated by the learned counsel and have perused the record.
The plea raised merits acceptance. The Tribunal has recorded a categorical finding to the effect that the deceased was a gratuitous passenger and that the offending vehicle was commercial in character. The former part of the finding is apparent from the FIR itself which had been lodged by Sudarshan Kumar, Sarpanch and one of those who was travelling by the offending vehicle at the relevant point of time; while the latter facet of finding is apparent from Exhibit R2, a cover note produced by the appellant- Insurer which indicates that the offending vehicle is of Swaraj Mazda Make with a gross load of 5920 kgs. and is a public carrier. Exhibit R1, a copy of the registration certificate of that vehicle, also indicates its commercial character. Both these documents (Exhibits R1 and R2) do not at all indicate any authorization for the vehicle to carry passengers.
A similar matter came up before the Hon'ble Apex Court in National Insurance Co.Ltd. Versus Bommithi Subbhayamma and others, 2005 A.C.J. 721. While relying upon New India Assurance Co.
Versus Asha Rani 2003 ACJ 1 (SC), Oriental Insurance Co. Ltd.
Versus Devireddy Konda Reddy, 2003 ACJ 468 (SC) and a three - Judge Bench ruling of the Hon'ble Apex Court reported as National Insurance Co.Ltd. Versus Baljit Kaur, 2004 ACJ 428 (SC), Hon'ble Apex Court held that the insurer would not be liable for the death of a gratuitous passenger travelling by a commercial vehicle. In the course of that ruling, the Hon'ble Apex Court noticed the implication of the 1994 amendment and FAO No.4987 of 2005 5
held that though the owner of the goods (being transported by goods carrier) or its authorised representative would be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to the passengers, especially gratuitous passengers who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid for the extension of the benefit of insurance to that category of people.
In view of the above quoted judicial pronouncements rendered by the Hon'ble Apex Court, the view obtained by the learned Tribunal, holding the insurer as well to be liable (though with a provision of indemnification), is invalidated. The appeal filed by the Insurer appellant shall stand allowed to the extent indicated above. The other part of the award shall stand upheld. In view of the invalidation indicated above, it is only the driver and the registered owner respondents who would be liable to pay the amount awarded by the Tribunal. The other part of the order passed by the Tribunal qua interest etc. shall stand upheld.
( S. D. ANAND )
( UMA NATH SINGH )
July 11, 2006
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