Oriental Insurance Company Ltd. vs Munesh & Ors.
2012 Latest Caselaw 4769 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of decision: 14th August, 2012
+        MAC. APP. 443/2004

         ORIENTAL INSURANCE COMPANY LTD.         ....... Appellant
                      Through: Mr. L.K. Tyagi, Adv.


                                           versus

         MUNESH & ORS.                                    ..... Respondents
                                Through:

+        MAC. APP. 883/2012

         HARPOOL AND ANR.                                 ....... Appellants
                     Through:


                                           versus

         ORIENTAL INSURANCE COMPANY LTD. & ORS...... Respondents
                      Through Mr. L.K. Tyagi, Adv.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                                    JUDGMENT

G. P. MITTAL, J. (ORAL)

1. These two Appeals arise out of a common judgment dated 24.08.2004 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby while awarding compensation of `6,02,000/- along with interest @ 9% per annum in favour of the Respondents No.1 to 5 (in MAC APP.443/2004) and making the Appellant Oriental Insurance Company Limited liable to pay the compensation and granted recovery rights

against the Respondent No.6 and 7 (in MAC APP.443/2004) and Appellants (in MAC APP.883/2012).

2. It is urged by the learned counsel for the Appellant that the deceased Har Chand was a gratuitous passenger as was held by the Claims Tribunal and thus on the basis of the judgment in National Insurance Company Limited v. Baljit Kaur & Ors., (2004) 2 SCC 1, the Appellant had no liability at all to pay the compensation.

3. On the other hand, the Appellants in Cross Appeal being MAC APP.883/2012 have taken the plea that there was no evidence on record before the Claims Tribunal to reach the conclusion that the deceased was a gratuitous passenger. No such plea was taken by the Appellant Insurance Company in the written statement. The Claims Tribunal erred in holding that the deceased was a gratuitous passenger.

4. It is well settled by the authoritative pronouncement of the three Judge Bench decision of the Supreme Court in Baljit Kaur that in case of gratuitous passenger the risk is not covered under the policy of insurance and thus the Insurer has no liability at all to pay the compensation. It was further stated that since the law laid down in New India Assurance Co. Ltd. v. Satpal Singh, (2000) 1 SCC 237 was reversed, only in New India Assurance Co. Ltd. v. Asha Rani, III (2003) 2 SCC 223, Baljit Kaur would operate prospectively.

5. The instant award was passed by the Claims Tribunal on 24.08.2004, that is, much after the decision in Baljit Kaur. Thus, if it was proved that the deceased was a gratuitous passenger, the Appellant would have no liability.

6. Now, I turn to the facts of the instance case. FIR No.6/1994 was recorded in Police Station Jafarpur Kalan on the basis of DD No.4-A dated 30.01.1994. It was stated in the FIR that Har Chand son of Mohan Lal suffered injuries while boarding the tractor. It is also mentioned in the FIR that when SI Ram Ashray reached the spot, he found that the trolley full of husk was standing at the spot of accident. Thus, there is no indication in the FIR that the deceased had been permitted to board the tractor by its driver.

7. In order to prove negligence, the Claimants examined PW-2 Mahender Singh. He deposed that on 30.01.1994 at about 8:30 A.M. the accident took place near Hans Nagar, Ashram, Pandwala Kalan bus stand. PW-2 was a property dealer having his shop nearby the place of accident. He deposed that Har Chand requested the tractor driver to give him a lift. The tractor driver stopped the tractor. While Har Chand was in the process of boarding the tractor, the driver started it as a result of which he was run over under the wheels of trolley.

8. It was no where the case of the Claimants that PW-2 was present with the deceased. Admittedly, he was not present on the tractor. Thus, PW-2 could not have known as to why the tractor was stopped by the driver. Rather, from the manner of the accident, it is evident that the tractor driver was not interested in carrying him on it.

9. The Appellant Insurance Company did not produce any evidence to prove that the tractor driver i.e. Respondent Harphool had permitted the deceased to board the tractor.

10. Anybody trying to board a vehicle without permission of the driver would not be a gratuitous passenger. In the circumstances, it cannot be said that the deceased was a gratuitous passenger travelling on the tractor. Consequently, the Appeal filed by the Appellant Insurance Company is dismissed whereas Cross Appeal being MAC APP. 883/2012 filed by the driver and owner is allowed.

11. The impugned order so far as it grants recovery rights to the Appellant Oriental Insurance Company Ltd. against the Appellants in MAC APP. 883/2012 is set aside.

12. The compensation amount lying deposited shall be released in favour of the Respondents No.1 to 5 (the Claimants) in terms of the order passed by the Claims Tribunal.

13. Both the Appeals are disposed of in above terms.

14. The statutory deposit of `25,000/-, if any, shall be refunded to the Appellant.

15. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE AUGUST 14, 2012 vk