National Insurance Co Ltd vs Mohd Mustafa Ansari And Others
2017 Latest Caselaw 5341 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 

 
Court No. - 37
 
Case :- FIRST APPEAL FROM ORDER No. - 3236 of 2008
 
Appellant :- National Insurance Co Ltd
 
Respondent :- Mohd Mustafa Ansari And Others
 
Counsel for Appellant :- Viqar Ahmed Ansari,K.S.Chaudhry
 
Counsel for Respondent :- B.S.Rathore
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered Oral by Saral Srivastava, J.)

Heard counsel for the appellant and counsel for the respondents.

The Insurance Company has preferred the present appeal challenging the award dated 30.07.2007, whereby the Tribunal has awarded compensation of Rs. 5,91,000/- with 6 per cent interest as compensation to the respondents/claimants.

The claimants-respondents no. 2 and 3 instituted the claim petition for the death of one Nisar Alam and prayed for a compensation of Rs. 15,00,000/-. It was stated in the claim petition that Nisar Alam was employed as driver in M/s Chaudhary Transport Company Wazirpur, Industrial Area, Delhi. It was further stated that driver of Tata Container No. HR-63/4109 in the Depot of Indian Container Corporation put the truck in reverse motion and hit Nisar Alam who suffered injuries in the accident and died.

The owner of the truck contested the claim petition by filing written statement denying the occurrence of the accident by truck no. HR-63/4109.

The Insurance Company filed written statement admitting the insurance of the vehicle but denied the occurrence of the accident. The Insurance Company further pleaded that the liability to pay the compensation is subject to the terms and conditions of the insurance policy.

On the basis of pleadings between the parties, the Tribunal framed five issues. The challenge to the award by the appellant-Insurance Company in the present appeal is mainly on the ground that the accident had taken place in premises of Indian Container Corporation which is not public place in terms of Section 2(34) of the Motor Vehicles Act, 1988 (Hereinafter referred as 'Act') and therefore the claim petition itself was not maintainable against the appellant.

The other submission of the counsel for the appellant is that the deceased was bachelor and the parents of deceased have filed the claim petition. Therefore, the Tribunal should have deducted 1/2 towards the personal expenses of deceased, and further the multiplier of 9 corresponding to the age of parents should have been applied by the Tribunal instead of 16 corresponding to age of deceased.

The counsel for the respondent refuting the aforesaid submission of the counsel for the appellant submitted that the Depot is meant to be used for loading and unloading goods for which anybody can enter the Depot. Thus, any person has a right of access to the Depot. Therefore, the Depot is also public place as per Section 2 (34) of the Act, and thus, the claim petition was maintainable and the Tribunal has rightly fastened the liability on the Insurance Company to pay compensation.

Coming to the contention of the counsel for the appellant that since the accident had taken place in a Depot which was not a public place, as defined under Section 2 (34) of the Act, therefore, the claim itself was not maintainable and the Tribunal has acted illegally in fastening the liability upon the appellant Insurance Company to pay the compensation. It is necessary to appreciate Section 2 (34) & Sec. 147 (1)(b) (i) & (ii) of the Act which are extracted herein below :

Sec. 2 (34):-

''Public Place'' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.''

Sec. 147 (1) (b) (i) & (ii)

(1) In order to comply with the requirements of this chapter, a policy of insurance must be a policy which-

.....

(b) insurers the person or classes of persons specified in the policy to the extent specified in sub?section (2)?

(i) against any liability which may be incurred by him in respect of the death of or bodily 90[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place ;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:''

.........

It is manifest from plain reading of Sec. 147(b)(i) & (ii) that the liability of insurer arises only if death or bodily injury to any person or damage to any property of a third party is caused by any person by use of vehicle in a public place. The expression public place as defined in Sec.2 (34) of The Act means a road, street, way or other place, whether a thoroughfare or not , to which public has right to access and includes any place or stand at which passengers are picked up or set down by stage carriage.

To determine as to whether a place is public place or not, the important word in Sec.2 (34) of the Act is "to which public have right to access". If the public have right to free access to a place either with or without permission, it would be a public place. In Strouds's Judicial Dictionary, the meaning of words 'public access to a place' has been given to be a place open to all the public whether by right or permission. According to K.J.Ayer's judicial Dictionary, the test of a public place is whether it is open to the member's of the Public or not even though there may be certain conditions attached to the entry or use thereof.

The question has been considered with reference to definition of public Place provided in Sec.2 (24) of Motor vehicle Act,1939 by full bench of Bomaby High Court in the case of Pandurang Chimaji Agale vs New India Life Insurance Co. Ltd. AIR 1988 Bom 248, 1988 (2) BomCR 177, 1988 64 CompCas 837 Bom, wherein Bombay High Court has held that it has been held that the definition of Public Place is wide enough to include any place which the members of public use and to which they have a right to access. The right of access may be permissive, limited, restricted or regulated by oral or written permission by ticket, passes and badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use enjoyment, avocation and other purpose.

The Kerala High court in the case of Rajan Vs. John 2009(2) T.A.C. 260(Ker.) has dealt with definition of Public Place provided in Sec.2(34) of the Act in a case where the claimant suffered injuries while unloading marble from truck in a private premises of house , and has held that public place does not have a restricted meaning inasmuch as it is not to be taken as a place where public have uncontrolled access at all times. 'Public Place' for the purposes of the Act has to be understood with reference to the places to which a vehicle has access.

It is not disputed that the Depot is a place where the public have a right of access. We may further point out that the appellant has not raised the issue before the tribunal that place of accident is not a public place as provided in Section 2 (34) of the Act, and has raised the said issue for the first time in appeal. There is no material or evidence on record to indicate that the public do not have any right of access to the Depot. Thus, in our opinion, Depot is a public place ,and contention of the counsel for the appellant that the place of accident is not public place is misconceived.

The next submission of the learned counsel for the appellant is that the Tribunal has acted illegally in deducting 1/3rd towards personal expenses of deceased and the Tribunal ought to have applied multiplier of 16 corresponding to the age of deceased. On the issue of deduction towards personal expenses, the counsel for the appellant has relied upon the judgement of the Apex Court 2009 (6) SCC 121 (Sarla Verma and others Vs. Delhi Transport Corporation and others). We may observe that the tribunal has awarded a very meagre amount towards compensation inasmuch as the Tribunal has assessed the income of deceased only Rs.3,000/- per month. Since the Tribunal has awarded just and fair compensation, therefore, we find that in the present case deduction of 1/3rd towards personal expenses is not to be interfered with.

So far as the contention of the learned counsel for the appellant that the multiplier corresponding the age of deceased should be applied, the Apex Court in the case of Munna Lal Jain & another vs. Vipin Kumar Sharma & others, 2015 (3) TAC 1 (SC)has held that in case of death of bachelor multiplier corresponding to age of deceased should be applied. Thus, the submission of counsel for appellant with regard to multiplier is liable to be rejected.

Thus, appeal lacks merit and is accordingly, dismissed. There is no order as to cost.

Order Date :- 11.10.2017/Israr