New India Assurance Co Ltd vs Manita & Ors
2013 Latest Caselaw 3770 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment delivered on: 27th August, 2013

+                    MAC.APP. 522/2010
       NEW INDIA ASSURANCE CO LTD             ..... Appellant
                        Through:Mr. Sameer Nandwani, Adv.

                            Versus

       MANITA & ORS                                       ..... Respondents
                                   Through:Mr. Idresh Ahemad, Adv.
                                   for R 1 to 5.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The instant appeal has been preferred by the Insurance Company challenging the award dated 05.05.2010, whereby ld. Tribunal has granted a compensation of Rs.8,20,507/- with interest @ 7.5% from the date of filing of the claim petition till its realization.

2. Ld. Counsel appearing on behalf of the appellant has argued that on 02.09.2005 at about 10:30 pm the deceased, along with his father, was going to Garh Mukteshwar by a tempo bearing registration no. UP-14D-7105, i.e., the offending vehicle. The deceased was sitting in cabin with driver and cleaner and the father of the deceased was sitting on the backside of the tempo to take care of clay pots. When they reached at Garh Road near Hapur, U.P. all of a sudden the driver of the offending vehicle lost control

over the tempo due to which the tempo overturned and the deceased sustained fatal injuries. Father of the deceased also received simple injuries.

3. Ld. Counsel further argued that the deceased and his father were gratuitous passengers as they were not carrying any goods with them and the tempo was not for the purposes of carrying passengers.

4. Ld. Counsel for the appellant has further submitted that PW-1, Sh. Bhagwan Singh, father of the deceased, has deposed that he was going for Ganga Snan at Garh Mukteshwar along with his son, i.e., the deceased Shri Narender Singh, for selling clay pots. They had hired a tempo bearing registration No.UP-14D-7105 for taking clay pots from Loni to Garh Ganga.

5. Ld. Counsel asserted that the father of the deceased, who filed the claim petition, stated in the petition that at the time of accident, the deceased was 33 years of age and was working as an LIC Agent and property dealer and was earning Rs.7,000/- per month. This itself proved that the deceased had nothing to do with the articles being carried in the tempo.

6. He submitted that, thus, it is proved that the deceased and his father were gratuitous passengers and the Ld. Tribunal has wrongly fastened the liability on the appellant/ insurance company. Even the statement of the PW-1 does not prove that the deceased was the owner of the goods or the authorised person.

7. On the other hand, ld. counsel, appearing on behalf of the respondents/claimants, has submitted that the PW-1 Shri Bhagwan Singh has clearly stated that the deceased was working as LIC Agent and property

dealer, that does not establish that being an LIC Agent deceased was not allowed to sell the clay pots. Since the family of the deceased was in the business of selling and making clay pots, therefore, they were taking the clay pots for selling to Garh Ganga fair which is known as „Ganga Snan Fair‟.

8. The family of the deceased is in the profession of selling and making clay pots, therefore, they were taking the clay pots for selling in the „Ganga Snan Fair‟ at Garh Mukteshwar. The father of the deceased has proved the receipts of purchasing the clay pots Exhibit PW-1/DA and the same were purchased from Rajkumar Terrakotta Pottery, Indira Park, Uttam Nagar, Delhi.

9. The Ld. Tribunal has recorded in the impugned award that the deceased was travelling along with the articles as owner of the goods as they had also filed bills regarding purchases etc. of the articles. No contrary evidence has been brought on record by the insurance company. Therefore, the Ld. Tribunal has not granted any recovery rights in favour of the appellant.

10. Accordingly, the Ld. Tribunal has opined that the deceased was not a gratuitous passenger and was the owner of the goods.

11. I have heard learned counsel for the parties. The respondents/claimants have proved the purchase of the clay pots. They were in the profession of making and selling clay pots, therefore, they were taking the same to the Ganga Sanan Fair for selling. Thus, the deceased was not a gratuitous passenger and was sitting in the cabin with the driver with his goods.

12. In the affidavit, Exhibit PW-1/A, it is clearly stated that he along with his deceased son was going to Ganga Sanan Fair at Garh Mukteshwar for selling clay pots. Accordingly, they hired a tempo bearing registration No. UP-14-D-7105 for taking clay pots from Loni to Garh Ganga. From the beginning of the journey, the driver of the offending vehicle was driving the said vehicle at a very high speed and in a rash and negligent manner and near Garh Road, the driver had lost control over the tempo which resulted into the said accident.

13. In view of the above, I do not find any discrepancy in the impugned award dated 05.05.2010. Therefore, the instant appeal is dismissed.

14. No orders as to costs.

15. Counsel appearing on behalf of the respondents/claimants submits that in the claim petition the memo of parties was mentioned as under:-

"1. Manita w/o Late Narender Singh, widow-30 years.

2. Nitesh s/o Late Narender Singh, son-10 years.

3. Neeraj s/o Late Narender Singh, son-5 years.

4. Nirmal s/o Late Narender Singh, son-5 months.

5. Bhagwan Singh s/o Late Udai Singh-father-58 years. R/o: H.No.230, Gali No.B-3, Village - Mukand Pur, Delhi-110042.

(Petitioner no.2 to 4 being minor are represented through their mother, natural guardian Manita). ....Petitioners. Versus

1. Baleshwar s/o Sh. Jagbir Singh R/o Naya Bazar, Loni, Distt.-Ghaziabad, U.P.

....Respondents"

16. Thereafter, an amended memo of parties was filed and Sh. Mukesh Kumar s/o Sh. Baleshwar and the New India Assurance Company Ltd. were made respondents no. 2 and 3. However, the Ld. Tribunal, while passing the award wrongly noted the respondent no. 4 as Master Nitesh in place of Nirmal s/o late Sh. Narender Singh. Even in the appeal, the name of the respondent No.4 has wrongly been typed. Therefore, at the time of disbursing the amount to the respondents, respondent No.4 may be considered as Nirmal s/o late Sh. Narender Singh.

17. I find force in the submission of the counsel for the respondents. It is ordered accordingly.

18. The Registrar General is directed to release the compensation amount in favour of the respondents/claimants in terms of the award dated 05.05.2010 passed by the Ld. Tribunal.

19. The Registry of this Court is directed to release the statutory amount in favour of the appellant/Insurance Company.

SURESH KAIT, J

AUGUST 27, 2013 RS/jg