The Oriental Insurance Co. Ltd. ... vs Pushpa Wd/O Ankush Buche (Since ...
2017 Latest Caselaw 6756 Bom

        J-fa67.17.odt                                                                                                   1/16   


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                       FIRST APPEAL No.67 OF 2017


        The Oriental Insurance Co. Ltd.,
        Through its Regional Manager,
        Regional Office Nelson Square,
        Chhindwara Road, Nagpur.                                                     :      APPELLANT

                       ...VERSUS...
                        
        1.    Pushpa wd/o. Ankush Buche
               (since dead),

        2.    Pranali Ankush Buche,
               Aged about 21 years,
               Occupation : Education.

        3.    Aniket s/o. Ankush Buche,
               Aged about 14 years, Minor,
               Occupation : Student,
               through natural guardian (R-5),

        4.    Govinda Narayan Buche,
               Aged about 84 years,
               Occupation : Nil.

        5.    Sow. Sakhubai Govinda Buche,
               Aged about 76 years,
               Occupation : Nil.

               Respondent Nos.1 to 5, R/o. Nakoda,
               Tahsil & District Chandrapur.

        6.    Sandip s/o. Diwakar Kagdelwar,
               Aged about 41 years,
               Occupation : Transport,
               R/o. Ghutkala, District Chandrapur.

               Respondent Nos.1 to 5, R/o. Nakoda, 
               Tahsil & District Chandrapur.




::: Uploaded on - 12/09/2017                                              ::: Downloaded on - 13/09/2017 01:02:04 :::
         J-fa67.17.odt                                                                                                   2/16   


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A.M. Quazi, Advocate for the Appellant.
        Smt. R.S. Sirpurkar, Advocate for the Respondent Nos.1 to 5.
        None for Respondent No.6.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 4 SEPTEMBER, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 3rd August, 2016, passed in Motor Accident Claim Petition

No.182/2007, by the Member, Motor Accident Claims Tribunal,

Chandrapur.

2. The incident in this case occurred in the morning of

22.4.2007 when deceased Ankush was traveling by the offending vehicle,

a Minidor, bearing registration No.MH-34-M-315. He had got into this

Minidor along with firewood, which was to be used for burning the pyre

of one deceased Kisan Turadkar, who had also died in an accident, the

previous day. The need for getting into the offending vehicle arose as an

emergency, as the first vehicle, a truck belonging to Western Coalfields

Limited, by which he proceeded in the morning to purchase the

firewood, went out of order during its movement on the road and the

deceased had no option but to stop some goods vehicle and seek

permission to ride it with his goods, which being volumnious, were

transportable only by a goods vehicle. When the offending vehicle

J-fa67.17.odt 3/16

reached Anturla diversion on Chandrapur-Ghuggus road, due to some

mechanical fault, the offending vehicle turned turtle. In this accident,

deceased Ankush sustained multiple injuries including head injuries.

Though he was taken to hospital for management of his injuries, he

succumbed to those injuries on 14 th May 2007 in the Government

Medical College and Hospital, Nagpur. The respondent Nos.1 to 5 being

dependent upon the income of the deceased, filed a Claim Petition under

Section 166 of the Motor Vehicles Act against the respondent No.6,

owner-cum-driver of the offending vehicle and the appellant, the insurer

of the offending vehicle.

3. The application was resisted by the appellant and the

respondent No.6. On merits of the case, the learned Member of the

Tribunal granted application and declared that the respondent Nos.1 to 5

were entitled to receive compensation jointly and severally from the

appellant and respondent No.6, of Rs.16,01,000/- together with interest

at the rate of 8 % p.a. from the date of application till actual realization

by the impugned judgment and order. Not being satisfied with the

same, the appellant- insurer is before this Court in the present appeal.

4. I have heard leaned counsel for the appellant, learned

counsel for the respondent Nos.1 to 5. None appears for respondent

No.6 though duly served with the notice on merits. I have gone through

the record and proceedings of the case including the impugned judgment

and order. Now, the only point which arises for my determination is :

J-fa67.17.odt 4/16

Whether the appellant proves that it is not liable to pay compensation in the present case owing to fundamental breach of policy ?

5. Learned counsel for the appellant has submitted that at the

time of accident, there were at least 5 to 6 persons, who were traveling

by the offending vehicle and this was against the permitted sitting

capacity of two persons in the offending vehicle. He further submits that

the deceased was traveling by the offending vehicle at the relevant time

as a gratuitous passenger and, therefore, the insurance company is not

liable to pay any compensation to the respondent Nos.1 to 5. In support

of his argument, learned counsel for the appellant has taken me through

the evidence brought on record, in particular the evidence of its own

witness DW 1 Sandip (respondent No.6), the owner-cum-driver of the

offending vehicle. Learned counsel for respondent Nos.1 to 5 submits

that there is no evidence available on record, which shows that deceased

Sandip was not sitting in the cabin and that he was occupying the rear

portion of the offending vehicle, which was used for transportation of

goods. She further submits that deceased was traveling by the offending

vehicle as owner of the goods and this fact has been admitted in clear

words by the own witness of the appellant and therefore, by virtue of the

provision of Section 147 of the Motor Vehicles Act, the risk of the

deceased was statutorily covered under the insurance policy. She also

submits that in this case, the issue as to whether or not the deceased was

a gratuitous passenger was never involved and the issue that lay at the

J-fa67.17.odt 5/16

center of the controversy was as to whether or not deceased was the

owner of the goods being carried by the offending vehicle, a goods

vehicle and therefore, fell within the scope and ambit of Section 147 of

the Motor Vehicles Act and this question has been rightly answered in

favour of respondent Nos.1 to 5.

6. In order to appreciate these arguments, I find that the

evidence of DW 1 Sandip is most relevant as the evidence led by the

claimants i.e. respondent Nos.1 to 5 would not throw any meaningful

light on this aspect of the matter, with the claimant or any of the

witnesses of the claimants having not been present at the spot of accident

when the accident occurred. This is not so with DW 1 Sandip. He was a

driver-cum-owner of the offending vehicle and was a person, who had

allowed deceased Ankush to get into the vehicle along with his goods.

7. DW 1 Sandip has stated that due to some mechanical fault,

the accident occurred. He has denied the suggestion given to him that all

other persons occupying the offending vehicle got into it after paying the

hire charges. According to the learned counsel for the appellant, denial

of this suggestion given to DW 1 Sandip by learned counsel for

respondent Nos.1 to 5 during his cross-examination would only show

that deceased had not paid for the transportation charges of the goods or

hiring charges of the goods and then it would mean that deceased was a

gratuitous passenger. He submits that the risk of the gratuitous

passenger is not covered under the insurance policy and admittedly, the

J-fa67.17.odt 6/16

insurance policy covered the risk of only one person.

8. I think, the argument of the learned counsel for the appellant

is misplaced. In the present case, as rightly submitted by learned counsel

for respondent Nos.1 to 5, the issue is not of gratuitous traveling by the

deceased and the issue is of traveling of the deceased by the offending

vehicle as owner of the goods. Section 147 M.V. Act, after the

amendment, which came into force on and from 14.11.1994, lays down

that insurance policy must insure the policy holder and owner of the

offending vehicle against any liability which he may incur in respect of

death of or bodily injury to any person, including owner of the goods or

his authorized representative carried in the vehicle. This provision

nowhere says that carriage of goods by their owner by the vehicle

involved in the accident must be on payment of hire.

9. Later part of the provision of Section 147 of the M.V. Act is

relevant here. It prescribes that the insurance policy shall cover the risk

of owner of the goods as well. This provision of law, as stated earlier,

nowhere lays down that in order that insurance policy is held to be

covering statutorily risk of the owner of the goods, the owner of the

vehicle or the claimants must prove as a pre-requisite that the owner of

the goods who was traveling at the relevant time by the goods vehicle

must also have paid the carrying charges of the goods. On the contrary,

what is required by this provision in order that the risk of the person

other than the driver of the vehicle is covered, that person must be the

J-fa67.17.odt 7/16

owner of the goods being transported by the vehicle. This section

nowhere prescribes that it should also be shown that such owner of the

goods paid for the transportation charges of the goods. The payment or

non-payment of transportation charges of the goods no doubt, is relevant

but the relevance is limited to only ascertaining as to whether or not such

person was indeed the owner of the goods and nothing more. Reason

being that usually, no owner of goods vehicle would permit a person to

get into his vehicle along with his goods unless he pays the hiring

charges and if such person does not pay the hiring charges of the goods

that he says belong to him, a reasonable inference would be that such

person is not the owner of the goods. So, the fact of payment of the

transportation charges or otherwise is relevant only for determining the

ownership of the goods and nothing more. But, if there is some other

evidence available on record which shows conclusively that the person

was indeed the owner of the goods, the payment or non-payment of

hiring charges of the goods would become irrelevant. This is what has

happened in the instant case.

10. In the present case there is available on record such other

evidence. DW 1 Sandip has admitted in categorical terms that deceased

Ankush was the owner of the goods that were being transported by his

vehicle. If the own witness of the appellant admits that deceased Ankush

had boarded the offending vehicle as owner of the goods along with the

goods, one would say no further evidence would be required to prove the

J-fa67.17.odt 8/16

fact that such person was the owner of the goods. The admission given

by DW 1 Sandip that the owner of the goods did not pay any

transportation charges , would not make the deceased as not the owner

of the goods. If the inference that learned counsel for the appellant

wishes this Court to make is really drawn, it would go against further

admission given by DW 1 Sandip to the effect that the deceased was

traveling by the offending vehicle as owner of the goods. But, such an

inference cannot be drawn for the simple reason that the direct

admission given by DW 1 Sandip that deceased Ankush was traveling by

the goods vehicle as owner of the goods has not been shown by the

appellant, by bringing on record some other evidence, as false or

involuntary.

11. The evidence available on record, now it can be seen, has

been properly appreciated by the learned Member of the Tribunal. The

appreciation done by the Tribunal and the conclusions reached by it are

completely based upon evidence available on record. Therefore, no

perversity can be seen in the findings recorded in this regard by the

Tribunal.

12. Learned counsel for the appellant has invited my attention to

the view taken by the learned Single Judge of the Andhra Pradesh High

Court in the case of New India Assurance Co. Ltd. vs. Rathnavath Sali

and others, reported in 2009(2) ALL MR (JOURNAL) 5, whereby

learned Single Judge has held that a person, who stops a lorry and gets

J-fa67.17.odt 9/16

into it by paying a hire or without paying a hire to the driver, cannot be

called as passenger in a goods vehicle and cannot be treated as owner of

the goods or representative of owner of the goods. I do not think that

the view so taken by the learned Single Judge can also be adopted with

equal ease and equanimity in the instant case. The reason is obvious and

lies in the material difference in the facts of both these cases. In the said

case of Ratnavath, the goods vehicle was already loaded with mud to be

used in manufacture of cement and while it was on its way to it's

destination the vehicle was hailed by the deceased, a hawker selling

clothes, and it was stopped. The deceased was allowed to get into the

vehicle along with his bundle of clothes. These facts clearly show that

the goods vehicle was on hire for transportation of mud and not for

carrying the bundle of clothes of the deceased, that the deceased was a

hitchhiker who stopped the vehicle not for engaging it for transportation

of his goods but to thumb a ride to a place he wished to go, that he was

allowed entry into the vehicle as a thumb rider only and as he was

carrying with him some luggage, his entry was permitted also with the

luggage, considered as some belongings of the deceased. So, the bundle

of clothes was seen as some article that a traveller usually carries with

him and not as "goods" which were required to be transported as goods.

In this background of facts, the deceased was found to be only a hitch

hiking traveller, who was allowed entry into the goods vehicle as an

ordinary passenger and not as owner of the goods by the Andhra Pradesh

J-fa67.17.odt 10/16

High Court. In other words, the primary purpose was own travel by the

deceased and not the carriage of goods.

13. One thing, surely becomes clear from the Judgment of

Rathnavath. What one has to look for is the engagement of the goods

vehicle for transportation proper of certain goods and nothing more. It

does not matter whether the engagement is for a hire or without hire as

long as the primary purpose is carriage of goods. In the present case, the

facts clearly show that primary purpose for which deceased gained entry

into the vehicle was of transportation of his goods and not just himself.

This is because, DW 1 Sandip nowhere says that he was driving the

offending vehicle along with the goods for which initially his vehicle was

hired. On the contrary, what appears from his evidence is the fact that

the offending vehicle was not carrying any goods. This is evident from

his silence in this regard or otherwise he would have said so expressly.

So, it can be inferred that the vehicle was engaged for transportation of

goods for the first time when the deceased asked for a ride along with

the firewood on the offending vehicle. The clear admission given by DW

1 Sandip in his cross-examination taken on behalf of the claimants that

the deceased was the owner of the goods is an unequivocal indication of

the fact that primary purpose of the deceased in gaining a means of

transportation was of carriage of his goods, the firewood, and not only of

himself, as a hitchhiker, who incidentally carried with him some luggage.

14. Learned counsel for the appellant has also relied upon the

J-fa67.17.odt 11/16

case of United India Insurance Company Ltd. vs. Shobha Balkrishna

Gaikwad and others, reported in 2011(6) ALL MR 538 in which it has

been held that unless there is an evidence to show that liability of

persons accompanying goods was covered through payment of extra

premium, the insurer would not be liable. The view so taken by the

learned Single Judge of this Court was based upon the law that prevailed

before 1994 Amendment as the accident in that case took place on 15 th

April 1988. After 1994 the Amendment, the law completely changed and

the liability upon the insurer was also fastened when it came to the

claims arising out of accidental death of the owner of the goods.

Therefore, this law would be of no help to the case of the appellant.

15. Learned counsel for the appellant has further referred to me

the case of National Insurance Co. Ltd. vs. Cholleti Bharatamma and

others, reported in 2008(1) ALL MR 436, in which the Hon'ble Apex

Court held that owner of the goods means only the person who traveled

in the cabin of the vehicle. It is also held that traveling with the goods

itself does not entitle anyone to protection under Section 147 of the

Motor Vehicles Act. In order to apply the ratio of this case to the present

case, it would be necessary for us to see as to where the deceased was

sitting when the accident occurred. On going through the evidence

available on record, one can see that none of the witnesses, either of the

claimants or of the appellant, has given any meaningful contribution in

this regard.

J-fa67.17.odt 12/16

16. In fact, the claimants being not the eye witnesses, it is not

necessary to consider their evidence so as to ascertain as to where the

deceased was sitting at the time of accident, whether in the cabin or in

the body of the offending vehicle. But, DW 1 Sandip was an eye witness

and therefore, his evidence assumes great importance in this regard.

But, even his evidence is absolutely silent on this aspect of the matter.

He only says that out of 4 persons, 1 person sat in the cabin and 3 other

persons sat in the body along with the goods. Learned counsel for the

appellant has invited my attention to the assertion of this witness to the

effect that in the offending vehicle there is only one seat available for

being occupied by the driver so as to support his contention that apart

from the seat of the driver, no other seat was available in the cabin. The

argument defies logic and hence cannot be accepted. Before this

assertion, there is yet another declaration made in no uncertain terms by

DW 1 Sandip which supports such a conclusion. This other predication is

that out of those 4 persons, 1 person sat in the cabin along with DW 1

Sandip and remaining 3 persons occupied the rear portion i.e. body of

the offending vehicle. When we consider both the assertions together,

the only conclusion possible would be that for the driver there was one

seat available in the cabin and for another person, there was yet another

seat available in the cabin. If this were not so, DW 1 Sandip would have

stated that the person, who sat in the cabin shared driver's seat along

with him. That is not the case.

J-fa67.17.odt 13/16

17. Learned counsel for the appellant submits that a clarification

about availability or non-availability of extra seat in the cabin should

have been sought by the claimants. I do not understand as to how such

an argument can be made for the simple reason that if it was the case of

the appellant that apart from the seat of the driver, there was no other

seat available in the cabin to accommodate any additional person, the

burden to prove this proposition was upon the appellant. When the

appellant failed to discharge its burden in this regard, I do not think that

any claimant in his senses would venture seeking such a clarification

from a witness, who does not prove the case of the appellant that in the

cabin except for the seat of the driver no other seat was available for

being occupied by any additional person. If a question in this regard was

to be put during the course of cross-examination to such a witness, there

was a possibility of such a witness giving some answer which would have

strengthened the case of the appellant and weakened the case of the

claimants. Therefore, the argument of the learned counsel for the

appellant in this regard cannot be accepted.

18. The discussion made thus far would show that there is no

evidence available on record which even remotely points towards

possibility of the availability of only one and one seat in the cabin of the

offending vehicle. It would then follow that no inference can be drawn

that at the time of accident, the deceased was not occupying the cabin

but was sitting in the body of the offending vehicle and therefore, his

J-fa67.17.odt 14/16

dependents are not entitled to receive any compensation.

19. If there is no evidence conclusively showing that the

deceased Ankush was traveling, at the time of accident, by sitting along

with the goods in the body of the offending vehicle and there is evidence

available on record showing that at least one person, in addition to the

driver, was sitting in the cabin of the offending vehicle, the inference that

this other person in the cabin was the deceased can be made and is

made, especially when it is not in dispute that none of the other three

persons has filed a claim petition. The deceased being the owner of the

goods, solace in the nature of financial relief would then be due to the

dependents of the deceased. Then, adverse inference can also be drawn

against the appellant in this regard. The adverse inference would be that

the appellant did not specifically bring any evidence on record in this

regard only for the reason that the evidence that was available with it

showed the position to be otherwise, the position of deceased traveling in

the cabin of the offending vehicle.

20. The other objection taken by the appellant is that there were

more passengers traveling by the goods vehicle than permitted under

law. He submits that the registration particulars of the vehicle showed

that the vehicle's sitting capacity was of 2 prsons only and in the present

case, there were 4 persons apart from the driver, who were traveling by

the offending vehicle. It is true that there were 4 persons apart from the

driver traveling by the offending vehicle at the time of accident. It is also

J-fa67.17.odt 15/16

true that sitting capacity of the offending vehicle was of only 2 persons.

But, out of these 4 persons, one has to say, at least one person would be

entitled to get the benefit of protection under Section 147 of the Motor

Vehicles Act. The question would be who amongst those 4 persons

would be entitled to receive such a benefit and unless there is evidence

brought on record by the insurer that deceased at least was not the

person who could have had such an advantage in the present case, the

case of the appellant that the deceased traveled by the offending vehicle

in breach of the sitting capacity cannot be accepted. I have also found

that the deceased could be taken to be a person who traveled by the

offending vehicle while sitting in its cabin as owner of the goods and in

the case of Cholleti (supra), the Hon'ble Apex Court has already held that

the owner of the goods would mean only that person, who travels in the

cabin of the vehicle and therefore, I am of the view that the respondent

Nos.1 to 5 being dependents of the deceased, would be entitled to

receive compensation in the present case. The objection taken in this

behalf by the appellant is rejected.

21. In the circumstances, I find that the Tribunal has rightly

concluded that the appellant as well as respondent No.6 are jointly and

severally liable to pay compensation to the claimants. The point is

answered accordingly.

22. There is no merit in this appeal.

23. The appeal stands dismissed with costs.

J-fa67.17.odt 16/16

CIVIL APPLICATION (F) No.2800 OF 2017.

The application is disposed of in above with liberty to file a

fresh application.

JUDGE okMksns