Delhi High Court
Bajaj Allianz Insurance Company ... vs Shobha Devi. & Ors. on 22 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd January, 2012
Pronounced on: 22nd February, 2012
+ MAC. APP. No.580/2010
BAJAJ ALLIANZ INSURANCE COMPANY LTD.
..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
Versus
SHOBHA DEVI. & ORS.... Respondents
Through: Mr. S. Pandit, Advocate for
Respondents No.1 to 5.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Bajaj Allianz Insurance Company Ltd. impugns
a judgment dated 05.06.2010 whereby, while awarding a
compensation of ` 12,25,000/- for the death of Bhonu Sahni in
a motor accident which took place on 13.04.2009, the Motor
Accident Claims Tribunal made the Appellant (Insurer) liable
to pay the compensation awarded.
2. The Appellant does not dispute the finding on negligence or on
the quantum of compensation. The contentions raised on
behalf of the Appellant is that the deceased was a gratuitous
passenger and, therefore, in view of the judgment in New India
Assurance Co. Ltd. v. Asha Rani, III (2002) ACC 753 and
National Insurance Co. Ltd. v. Baljit Kaur & Ors. (2004) 2
SCC 1, the Appellant was not liable at all to pay any
compensation. It is urged that even otherwise the vehicle
involved in the accident was a three-wheeler bearing No.DL-
1LH-1762 having sitting capacity for only the driver which is
evident from the Insurance Policy Ex.R4W1/1 and the
deceased was not entitled to travel and share the seat with the
driver of the three-wheeler (tempo). Reliance is placed on
United India Insurance Company Limited v. Suresh K.K. &
Anr. (2008) (12) SCC 657. After the amendment of Section
147 of the Motor Vehicles Act w.e.f. 14.11.1994, the risk of
the owner or his authorized representative has been specifically
covered in the policy of insurance. In National Insurance Co.
Ltd. v. Baljit Kaur & Ors. (supra), it was held as under:
"10. Admittedly, it is incumbent upon a Court of
Law to eschew that interpretation of a statute that
would serve to negate its true import, or to render the
words of any provision as superfluous. Nonetheless,
we find no merit in the above submissions proffered
by the learned Counsel for the respondent. The effect
of the 1994 amendment on Section 147 is
unambiguous. Where earlier, the words "any
person" could be held not to include the owner of the
goods or his authorized representative travelling in
the goods vehicle, Parliament has now made it clear
that such a construction is no longer possible. The
scope of this rationale does not, however, extend to
cover the class of cases where gratuitous passengers
for whom no insurance policy was envisaged, and for
whom no insurance premium was paid, employ the
goods vehicle as a medium of conveyance."
3. There is no liability of the insurer of the offending vehicle to
pay the compensation in case of a gratuitous passenger as there
is no liability at all of the Insurance Company under the Motor
Vehicles Act, 1988. In Oriental Insurance Co. Ltd. v.
Kaushalya Devi, MAC No.19/2005 decided on 14.12.2011,
this Court held as under:
"9. In the case of gratuitous passengers travelling in
a goods vehicle, there is no liability of the insurance
company at all to pay the compensation, it is not
required to prove any breach of the terms of the
policy as the passengers travelling in the goods
vehicles are not covered as the premium therefor is
not paid by the insured. It is important to note that
the judgment by the three Judges Bench in Swaran
Singh (supra) was delivered on January 05, 2004
while judgment in Baljit Kaur (supra) was delivered
on January 06, 2004. The Hon'ble Chief Justice
presided over both the Benches with Hon'ble Mr.
Justice S.B. Sinha being the common author in both
the judgments. If the Supreme Court had any
intention to make the Insurance Company liable to
pay the compensation, it would have so mentioned in
Baljit Kaur (supra) also."
4. The Claims Tribunal by the impugned judgment held that since
the deceased was travelling along with the boxes for
purchasing fish, it shall be deemed that the owner was
travelling along with the goods. I need not go into that
question as in the instant case, it is established in the cross-
examination of PW2 Kare Saini that the deceased was sharing
the driver's seat in the three-wheeler which was not
permissible as per the report of the Supreme Court in United
India Insurance Company Limited v. Suresh K.K. &
Anr(supra). In para 10 of the report, it was held as under:
"10. It is now well settled that the term "any
person" envisaged under the said provision shall
not include any gratuitous passenger. (National
Insurance Co. Ltd. v. Baljit Kaur). If the claimant
had not been travelling in the vehicle as owner of
the goods, he shall not be covered by the policy of
the insurance. In any view of the matter, in a three-
wheeler goods carriage, the driver could not have
allowed anybody else to share his seat. No other
person whether as a passenger or as a owner of the
vehicle is supposed to share the seat of the driver.
Violation of the condition of the contract of
insurance, therefore, is approved. The Tribunal and
the High Court, therefore, in our considered
opinion, should have held that the owner of the
vehicle is guilty of the breach of the conditions of
policy."
5. A perusal of the Insurance Policy Ex.R4W1/1 shows that the
three-wheeler No. DL-1LH-1762 had the sitting capacity for
just one person i.e. the driver of the vehicle. In view of the
judgment in United India Insurance Company Limited v.
Suresh K.K. & Anr(supra), it was not permissible for the driver
to share the seat; thus there was a violation of the condition of
the contract of insurance. Since the deceased was not a third
party, there is no statutory liability of the Insurance Company
to pay the compensation in the first instance and then to
recover the same from the owner of the vehicle.
6. In view of the forgoing discussion, the Appeal is allowed and
the impugned judgment is set aside so far as it fastens the
liability on the Appellant to pay the compensation. The
Respondents No.1 to 5 shall be entitled to recover the
compensation from the Respondents No.6 and 7 i.e. the driver
and the owner of vehicle No. DL-1LH-1762.
7. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
FEBRUARY 22, 2012
pst
