Oriental Insurance Co Ltd vs Pankaj Sharma & Ors
2014 Latest Caselaw 6691 Del

$~10 to 15
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 11.12.2014
+     MAC.APP. 877/2011
      ORIENTAL INSURANCE CO LTD                  ..... Appellant
                      Through Mr.A.K.Soni, Adv.
               versus
      PANKAJ SHARMA & ORS                ..... Respondent
                      Through

+     MAC.APP. 879/2011
      ORIENTAL INSURANCE CO LTD          ..... Appellant
                      Through Mr.A.K.Soni, Adv.
               versus
      GUDIYA BEGUM & ORS                 ..... Respondent
                      Through

+     MAC.APP. 880/2011
      ORIENTAL INSURANCE CO LTD                  ..... Appellant
                      Through Mr.A.K.Soni, Adv.
               versus
      RADHA DEVI & ORS                   ..... Respondent
                      Through
+     MAC.APP. 881/2011
      ORIENTAL INSURANCE CO LTD                  ..... Appellant
                      Through Mr.A.K.Soni, Adv.
               versus
      REKHA & ORS                                ..... Respondent
                      Through

+     MAC.APP. 883/2011
      ORIENTAL INSURANCE CO LTD                ..... Appellant
                      Through Mr.A.K.Soni, Adv.
               versus
      MERAJUN & ORS                            ..... Respondent
                      Through




MAC.APP.877/2011 & connected matters                        Page 1 of 6
 +     MAC.APP. 885/2011
      ORIENTAL INSURANCE CO LTD                ..... Appellant
                      Through Mr.A.K.Soni, Adv.
               versus
      SHYAM KUMAR & ORS                        ..... Respondent
                      Through

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeals arise out of a common Award dated 13.5.2011 which is impugned by the appellant/insurance company. The controversy revolves around two issues. First issue pertains to interpretation of section 147 of the Motor Vehicles Act, 1988 i.e. whether the deceased/claimants were unauthorised passengers on a public goods vehicle or whether the deceased/claimants were owners of goods being carried in the vehicle or their authorised representatives. The second issue is as to whether, when computing loss of dependency, the assessed income should be enhanced for future prospects.

2. The brief facts are that the offending vehicle was being used for carrying vegetables from Azad Pur Subzi Mandi to respective destinations. The deceased persons as well as the claimants boarded the said offending vehicle/tempo with their respective vegetables. When the tempo reached Punjabi Bagh, due to the rash and negligent driving of the driver of the said vehicle, the tempo hit the railing of the flyover. As a result of the impact the tempo turned over. The deceased and the injured fell from the flyover. Four of the occupants died and remaining two received injuries

3. Learned counsel appearing for the appellant submits relying upon the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Cholleti Bharatamma and Others, 2008 ACJ 268 that only those persons travelling as owners of the goods in the cabin of the vehicle can be termed to be validly travelling and all others would not be covered by the protection as provided for under section 147(1) (b) of the M.V.Act, 1988.

4. He further submits that in four of the petitions, for calculating loss of dependency future prospects have also been awarded which is erroneous.

5. A perusal of the Award shows that the Tribunal noted that the own witness of the appellant R3W1 in his cross-examination has admitted that all the victims were travelling on the vehicle with their own goods. The Tribunal also noted that as per R3W1 only one person as owner of the goods can travel in the vehicle in question but there is no restriction on the permitted number of owners of goods in the policy. R3W1 also admitted that owners of goods are entitled to travel with the goods. The Tribunal relied upon the judgment of the three Judge Bench of the Supreme Court in the case of National Insurance Company Limited vs. Baljit Kaur and Ors., 2004 ACJ 428. Hence, the Tribunal concluded that the appellant company has failed to prove that the deceased/claimants were gratuitous passengers and hence directed the appellant to make the necessary payment.

6. In National Insurance Company Limited vs. Cholleti Bharatamma and Others (supra) the Supreme Court in paragraph 17 observed as under:-

"17. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle."

7. These observations were made by the Supreme Court in CA No.4848- 4850/2007 in which allegedly the passenger had paid Rs.20/- for travelling in the Lorry. It was in those facts that the Supreme Court concluded that there is nothing to show that the deceased was travelling in the Lorry as owner of the goods.

8. In the present case, in view of the evidence of the witness of the appellant/insurance company R3W1 it is clear that there is no dispute that all the deceased/claimants were travelling in the public goods carrier as owners of the goods. They had not hired the full truck but authorisedly boarded the truck with their goods.

9. The insurance policy is on record. The relevant clause reads as follows:-

"1. Use only for carriage of goods within the meaning of the Motor Vehicles Act. The Policy does not cover 1)Use for organised racing, pace-making, reliability trial or speed testing (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act, 1923."

In view of the above clause, it can be concluded that there is no clause that an owner of goods or his authorised representative must travel only in the cabin or specifying the number of such owner or representatives of owners who can travel in the vehicle.

10. In National Insurance Company Limited vs. Baljit Kaur (supra) a three Judge Bench of the Supreme Court held as follows:-

"11. 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.

20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people."

11. In the light of the above three Judge Bench decision, in my opinion, in the facts and circumstances of the present case, it is obvious that the deceased/claimants were travelling as owners of the goods. They are covered under section 147(1) of the M.V.Act. There is no reason to disagree with the view of the Tribunal.

12. Regarding future prospects there is no merit in the contention of the

appellant/ insurance company. Keeping in view the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 the present appeals are accordingly dismissed.

13. All interim orders including order dated 28.09.2011 stand vacated.

14. Statutory amount deposited by the insurance company/appellant at the time of filing the appeal be refunded to the appellant/insurance company.

15. Vide order dated 28.09.2011 the appellant/insurance company was directed to deposit the entire award amount with the Registrar General of this Court. Out of which 50% was directed to be released to the claimants vide order dated 14.5.2013. The balance 50% amount lying deposited with the Registrar General of this Court alongwith accumulated up to date interest be released to the claimants proportionately in the same manner as directed by the Award.

DECEMBER 11, 2014                                  JAYANT NATH, J.
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