Ramesh Kumar Maini vs United Insurance Co. Ltd. & Ors.
2009 Latest Caselaw 2759 Del

14
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +       MAC.APP.919/2006

%                                 Date of decision: 22nd July, 2009

      RAMESH KUMAR MAINI                       ..... Appellants
                  Through:          Mr. Hemant Chaudhari, Mr. S.W.
                                    Haider, Ms. Pinki Talukdar
                                    Advocates
                    versus

      UNITED INSURANCE CO. LTD. & ORS. ..... Respondents
                    Through: Mr. Udit Kumar Chaturvedi, and
                             Mr. A.K. Dev, Advocates for R-1.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may        YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?       YES

3.      Whether the judgment should be               YES
        reported in the Digest?

                             JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.6,02,160/- has been

awarded to the claimants.

2. The accident dated 26th April, 2003 resulted in the death of

Ram Udgar Yadav. The deceased was survived by his widow, two

sons, parents and sister, who filed the claim petition before the

learned Tribunal against the driver, owner and Insurance

company of the offending vehicle.

3. The appellant is the owner of the offending vehicle. The

appellant contested the claim petition on the ground that the

vehicle was validly insured with respondent No.1 and therefore,

respondent No.1 alone is liable to pay the compensation to the

claimants. The driver of the offending vehicle took the same

plea. A joint written statement was filed by the driver and the

owner of the offending vehicle before the learned Tribunal.

4. Respondent No.1 admitted the insurance of the offending

vehicle in para 17 of the written statement before the learned

Tribunal. Usual defences were taken by respondent No.1 before

the learned Tribunal in their written statement but no specific

plea was raised for avoiding the liability on the ground that the

accident in question did not occur at a public place.

5. The following issues were framed by the learned Tribunal on

11th November, 2003:-

"i. Whether the deceased Ram Udgar Yadav died in an accident arising out of the use of the motor vehicle No.HR-38C-0117 driven in a rash and negligent manner by R1?

ii Whether the petition is bad for non-joinder of a necessary party, i.e., the driver of the said vehicle and the owner of the godown where the accident had taken place? OPR3.

iii. Whether the petitioner no.6 was dependent upon the deceased as envisaged under the Law? OPP

iv. Whether the petitioners are entitled to any compensation, if any to what amount and from whom?

v. Relief."

6. The claimants produced two witnesses, namely, PW-1 and

PW-2 before the learned Tribunal. The owner of the offending

vehicle appeared in the witness box as R3W1 to prove that the

driver of the offending vehicle was holding a valid driving licence

at the time of the accident and there was a valid permit. There

was no cross-examination of the owner by the insurance

company. The Assistant Administrative Officer of the insurance

company appeared as R3W2 to prove the policy - Ex.R3W2/A. No

defence whatsoever was raised even at the stage of leading

evidence by the insurance company.

7. At the stage of final arguments, respondent No.1 raised a

plea for the first time that the accident occurred within the

premises of a godown which is not a public place under Section

146 of the Motor Vehicles Act and, therefore, respondent No.1 is

not liable to pay any amount under the policy. Although, no such

defence was taken in the written statement and no evidence was

led by respondent No.1, surprisingly the learned Tribunal

accepted the contention of respondent No.1 and exonerated

respondent No.1 and passed an award against the owner and

driver of the offending vehicle.

8. The appellant has challenged the impugned award on the

ground that the contention raised by respondent No.1 before the

learned Tribunal was neither pleaded nor proved by respondent

no.1 and the learned Tribunal erred in accepting the same.

Without prejudice, it is submitted that the accident occurred at a

public place and, therefore, the finding of the learned Tribunal is

not sustainable even in law.

9. With respect to the first ground of challenge by the

appellant, it is matter of record of the Trial Court that respondent

No.1 never raised any defence that the accident did not take

place in a public place in the written statement. No issue was,

therefore, framed by the learned Tribunal. The witness of

respondent No.1, namely, R3W2 also did not dispute the liability

under the policy. The owner of the offending vehicle appeared in

the witness box as R3W1 but was not even cross-examined by

respondent No.1. In these circumstances, the learned Tribunal

clearly erred in accepting the contention raised by respondent

No.1 for the first time during the course of arguments in the

absence of any pleading or evidence on record.

10. The learned Tribunal has referred to and relied upon the

judgment of Madras High Court in the case of Manglam Vs.

Express Newspapers Ltd., 1982 ACJ Madras 203 in which

the accident occurred within the premises of the Express

Newspaper Estate, Madras. The Madras High Court held the

same to be a private place and not a public place and, therefore,

the Insurance Company was not held to be liable to pay any

compensation.

11. The learned counsel for the appellant submits that for the

purposes of Chapter VIII of the Motor Vehicles Act, the expression

"public place" covers all places including those of private

ownership where the members of public have access, whether

free or controlled, in any manner whatsoever. The learned

counsel for the appellant refers to and relies upon the Full Bench

judgment of the Bombay High Court in the case of Pandurang

Chimaji Agale Vs. New India Life Insurance Co. Ltd., Pune,

1988 ACJ 674 in which the Court examined all the previous

judgments including the judgment of the Madras High Court

relied upon by the learned Tribunal. In the aforesaid case, the

accident had occurred at a private road in the compound of the

industrial establishment where entry was regulated by passes

and the learned Tribunal held it not to be a public place and

insurance company was exonerated. The Full Bench of Bombay

High Court has held the place of accident to be a public place

within the meaning of Section 95 and the Insurance Company

was held to be liable. The judgment of the Madras High Court was

considered in para 12 of the aforesaid judgment. The Bombay

High Court held as under:-

"For the reasons which we have discussed earlier, we prefer the view taken by the latter authorities and hold that at least for the purpose of chapter VIII of the Act the expression „public place‟ will cover all places including those of private ownership where members of public have an access whether free or controlled in any manner whatsoever."

12. The learned counsel for the appellant also refers to and

relies upon the following judgments where the Patna High Court,

Madras High Court, Gujarat High Court, Andhra Pradesh High

Court and Orissa High Court have taken the same view:-

Case Title & Citation

(i) Pandurang Chimaji Agale and Anr.

Vs. New Life Insurance Co. Ltd.

              1988 ACJ 674 (Bombay High Court)

      (ii)    Rajasthan State Road Trasn.Corpn.
              and Ors. Vs. Ramotar
              1988 ACJ 683 (Rajasthan High Court)

      (iii)   New India Assurance Co. Ltd. Vs.
              Urmila Devi
              1998 ACJ 300 (Patna High Court)


       (iv)     National Insurance Co. Ltd. Vs.
               Sahiba Khatun and Ors.

AIR 1998 Madhya Pradesh 238 (Madhya Pradesh High Court)

(v) Associated Cement Co. Ltd. Vs. Union of India AIR 1998 Madhya Pradesh 241 (Madhya Pradesh High Court)

(vi) United India Insurance Co. Ltd. Vs. Gujarat Ship Trading Corporation 1998 ACJ 1003 (Madhya Pradesh High Court)

(vii) Pappoo Vs. Om Prakash and Ors.

1998 ACJ 1011 (Madhya Pradesh High Court)

(viii) Chinna Gangappa Vs. B. Sanjeeva Reddy and Anr.

               1999 ACJ 719 (Andhra Pradesh High Court)

      (ix)     Amrit Kaur and Ors. Vs. Chandigarh
               Transport Undertaking

1999 ACJ 723 (Punjab and Haryana High Court)

(x) Lanka Sharma Vs. Rajendra Singh and Ors.

1984 AJC 198 (Andhra Pradesh High Court)

(xi) Sayamma Vs. Shabbir Ahmed A.

Rehman and Anr.

1984 ACJ 203 (Bombay High Court)

(xii) Oriental Fire and General Insurance Co. Ltd. Vs. Raghunath Muduli AIR 1991 Orissa 173 (Orissa High Court)

13. The Judgment of the Andhra Pradesh High Court in the case

of Chinna Gangappa Vs. B. Sanjeeva Reddy, 1999 ACJ 719

specifically relates to the auto garage where a tractor was sent

for repairs and was being reversed towards its trailer when a

labourer was injured. The insurance company raised the defence

that the garage was not a public place. Following, 1984 ACJ 198

(A.P.) and 1988 ACJ 674 (Bombay), the Andhra Pradesh High

Court held the auto garage to be a public place and Insurance

Company was held to be liable.

14. I agree with the view taken by the Full Bench of Bombay

High Court in the case of Pandurang Chimaji Agale Vs. New

India Life Insurance Co. Ltd., Pune, 1988 ACJ 674 and

followed by Patna High Court, Madras High Court, Gujarat High

Court, Andhra Pradesh High Court and Orissa High Court that for

the purposes of Chapter VIII of the Motor Vehicles Act, the

expression "public place" will cover all places including those of

private ownership where public has access, whether free or

controlled in any manner whatsoever. The finding of the learned

Tribunal in this regards is, therefore, erroneous.

15. For all the aforesaid reasons, the appeal is allowed and the

impugned award is set aside insofar as the learned Tribunal has

held the appellant and respondent No.2 to be liable to pay the

award amount. Respondent No.1 shall be liable to pay the entire

award amount along with interest to the claimants/respondents

No.3 to 7. Since the appellant has been unnecessary dragged in

this litigation, the respondent No.1 shall be liable to pay the cost

of Rs.15,000/- to the appellant.

16. The appellant has deposited a sum of Rs.1,00,000/- with the

learned Tribunal in compliance with the order dated 21 st

November, 2006. Respondent No.1 is directed to refund the said

amount of Rs.1,00,000/- to the appellant along with interest at

the rate 9% per annum from the date of deposit i.e. 28.11.2006

up to the date of payment. The remaining award amount i.e.

Rs.5,02,160/- along with interest thereon is payable to the

claimants.

17. Respondent No.1 is directed to deposit the entire award

amount along with up to date interest minus Rs.1,00,000/- with

UCO Bank, Delhi High Court Branch within 30 days. The deposit

be made by means of an account payee cheque drawn in the

name of UCO Bank A/c. Meena Devi and be handed over to Mr.

M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament

Street, New Delhi (Mobile No. 09310356400).

18. There is no appearance on behalf of the

claimants/respondents No.2 to 7. It is an unfortunate case where

the claimants have suffered because of this litigation. It is more

than six years after the accident and the claimants are suffering

because of this litigation between the owner and the driver. It is

noted that the claimants are residents of Village Narsar in District

Darbhanga, Bihar. The claimant/respondent No.3, widow was

aged 24 years and the children were aged 13, 14 and 7-1/2 years

and the parents were 46 and 40 years at the time of the accident.

The claimants have chosen not to appear today. It appears that

they do not have any means of sustenance and to visit Delhi to

appear before this Court. For the injustice caused to the

claimants, further cost of Rs.20,000/- is imposed on respondent

No.1 to be paid to claimants/respondents No.2 to 7.

19. Fresh court notice be issued to claimants/respondents No.3

to 7. It should be specified in the court notice that this appeal

has been disposed of and the Insurance company has been

directed to deposit the award amount within 30 days and,

therefore, the claimants should approach this Court for

withdrawal of the amount. Since the claimants appear to be

illiterate, Court notice be also issued to the Superintendent of

Police, Darbangha, Bihar, requesting him to convey to the

claimants about the disposal of this appeal.

20. Copy of this order be given dasti to counsel for both the

parties.

21. Copy of this order be also sent to Mr. K.L. Nandwani,

nominated counsel of the United India Insurance Company Ltd.

for bringing the grave injustice caused to the claimants due to

this litigation to the notice of Mr. Milind Kharat, General Manager

(Motor Claims), United India Insurance Co. Ltd. Mr. Milind Kharat is

also requested to convey this order to the claimants through their

local office and if the claimants are unable to approach this Court

due to financial constraints, the arrangement for their travel and

stay at Delhi be made out of the cost imposed.

22. List for compliance on 7th September, 2009.

J.R. MIDHA, J.

22ND JULY, 2009 s.pal