Delhi High Court

Neeraj vs Sumitra Devi & Ors on 19 February, 2015

Author: G.P. Mittal

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Pronounced on: 19th February, 2015

+        MAC.APP. 651/2013
         BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
                                                                      ..... Appellant
                                      Through       Ms. Neerja Sachdeva, Advocate

                                      versus

         LAL SINGH & ORS                                        ..... Respondents
                       Through                      Mr. S.N. Parashar, Advocate for
                                                    Respondent (owner)
+        MAC.APP. 662/2013
         BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
                                                                      ..... Appellant
                                      Through       Ms. Neerja Sachdeva, Advocate

                                      versus

         SMT SUMITRA DEVI AND ORS            ..... Respondents
                      Through  Mr. S.N. Parashar, Advocate

+        MAC.APP. 73/2015
         NEERAJ                                                   ..... Appellant
                                      Through       None

                                      versus

         SUMITRA DEVI & ORS                                     ..... Respondents
                      Through                       Mr. S.N. Parashar, Advocate



MAC APP 651/2013, 662/2013, 73/2015 & 74/2015                          Page 1 of 10
 +        MAC.APP. 74/2015
         NEERAJ                                            ..... Appellant
                                      Through   None

                                      versus

         BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
                                                               ..... Respondent
                                      Through   Ms. Neerja Sachdeva, Advocate


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

                                       JUDGMENT

1. These four appeals arise out of common judgment dated

16.05.2013 passed by the Motor Accident Claims Tribunal (the

Claims Tribunal) whereby the claim petition preferred by the

three legal representatives of deceased Virender Yadav and the

claim petition filed by injured Lal Singh were disposed of.

Compensation of Rs.59,400/- was awarded in favour of Lal

Singh, injured (Respondent no.1 in MAC.APP.651/2013) and

compensation of Rs.7,53,500/- was awarded in favour of

Respondents no.1 to 3 in MAC.APP.662/2013. Two appeals

(MAC App.651/2013 and MAC APP.662/2013) have been filed

by the Insurance Company while the other two appeals

(MAC.APP.73/2015 and MAC. APP.74/2015) have been filed

by Smt. Neeraj against granting of recovery rights to the

Insurance Company.

2. Before adverting to each of the appeal, it will be appropriate to

mention a few facts. A Detailed Accident Report(DAR) was

filed by SHO, P.S. Saket in respect of the motor vehicular

accident which took place on 25.03.2011 at 2:50 p.m. at Press

Enclave Road resulting in registration of FIR no.117/2011. As

per the information given in the DAR, on 25.03.2011, Dinesh,

deceased Virender Yadav and Lal Singh were carrying marble

slabs from Satbari to New Friends Colony on a tempo bearing

no.DL-1L-K-9789. Respondent Neetu Singh was driving the

tempo and Dinesh was sitting beside him. Neetu Singh was

driving the tempo at a very fast speed. A cyclist Ranjit was

going ahead on the road. On seeing the cyclist and in order to

avoid collision with the cyclist, Neetu Singh suddenly applied

break. As a result, the persons sitting on the tempo(along with

the marble slabs) got sandwiched in between the marble slabs.

The injured were removed to the hospital, where Virender

Yadav was reported brought dead. In respect of injured Ranjeet

and Lal Singh, compensation of Rs.18,100/- and Rs.59,400/-

respectively for having suffered injuries was granted whereas

compensation of Rs.7,53,500/- was awarded in favour of legal

representatives of deceased Virender Yadav.

3. For the sake of convenience, appellant Bajaj Allianz General

Insurance Company Ltd. in MAC.APP.651/2013 and

MAC.APP.662/2013 shall be referred to as the Insurance

Company and the Appellant in Cross-Appeals being

MAC.APP.73/2015 and MAC.APP.74/2015 shall be referred to

as the owner of the offending vehicle involved in the accident.

4. The contention raised on behalf of the Insurance Company is

that the vehicle involved in the accident is a goods vehicle

covered by insurance policy (Ex.R3W1/A). As per the

provision of Section 147(1) of the Motor Vehicles Act, 1988,

risk towards the owner of the goods or the authorised

representative of the owner of the goods travelling in a goods

vehicle is covered only when the said owner/representative of

the owner of the goods is travelling in the cabin along with the

driver. It is urged that in the instant case, injured Lal Singh and

deceased Virender Yadav were admittedly travelling in the rear

portion of the tempo meant for carrying the goods alongwith the

goods and therefore, their risk was not covered under the policy

of insurance. In support of her contention, the learned counsel

placed reliance on the report of the Supreme Court in National

Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268(SC).

The learned counsel therefore, urges that the Claims Tribunal

erred in making the Insurance Company liable to pay

compensation in the first instance with the right to recover the

same from the owner of the offending vehicle later on. It is

stated that since injured Lal Singh and deceased Virender

Yadav were travelling in the rear of the tempo along with the

goods, they were not covered under the policy of insurance and

the Insurance Company had no liability at all.

5. On the other hand, the learned counsel for the owner submits

that since the Insurance Company charged an additional

premium for covering legal liability for operation and

maintenance of two persons, the liability of two persons apart

from the driver of the vehicle would stand covered under the

policy. The Insurance Company ought not to have been granted

recovery rights.

6. This Court in Oriental Insurance Co. Ltd. v. Kaushalya Devi &

Ors., MAC.APP. 19/2005 decided on 14.12.2011 referred to the

judgments of National Insurance Company v. Baljit Kaur &

Ors. (2004) 2 SCC 1, New India Assurance Company Limited v.

Asha Rani & Ors. (2003) 2 SCC 223 and New India Assurance

Company v. Satpal Singh (2000) 1 SCC 237 and held that the

Insurance Company has no liability at all in respect of injury to

gratuitous passengers travelling in a goods vehicle and

therefore, the Insurance Company will not be under an

obligation to first pay the compensation and then recover from

the insured. Paras 7 to 9 and 11 of the report in Oriental

Insurance Co. Ltd. v. Kaushalya Devi & Ors.(supra) are

extracted hereunder:

"7. A close reading of Baljit Kaur (supra) reveals that the judgment in Asha Rani (supra) which was passed on 03.12.2002 was to have a prospective effect. Since the position was uncertain because of the earlier decision of the Supreme Court in Satpal Singh (supra) it was observed that the Appellant National Insurance Company Limited would satisfy the award in favour of the claimant, if not already satisfied and recover the same from owner of the vehicle. It was not laid down as a proposition of law that even in the case of gratuitous passengers travelling in a goods vehicle, the Insurance Company will first pay the compensation awarded and would then recover from the insured.

8. Reliance on Swaran Singh (supra) for making the Insurance Company liable to pay the compensation in the first instance was also misplaced because Swaran Singh (supra) related to the cases where the driver did not possess a valid driving licence or the driving licence held by him was a fake. In Swaran Singh (supra) the Insurance Company was made liable to pay the compensation because it had liability to pay on account of insurance of the vehicle and it could avoid liability only because of the breach of the condition of the policy.

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.

.......

11. In the instant case also, the Tribunal committed grave error in interpreting Baljit Kaur (supra) so as to enable the Tribunals and the Courts to make the Insurance Company liable to pay the compensation awarded in the first instance and then to recover from the insured even in the cases where gratuitous passengers, not covered by the Insurance policy, were travelling in a goods vehicle. The Appeals, therefore, have to be allowed."

7. However, in the instant case, the deceased and the injured were

not gratuitous passengers but were custodian of the goods. At

the same time, they travelling in the rear portion of the tempo

along with the goods. They were not travelling in the cabin of

the vehicle along with the driver. This question was examined

by the Supreme Court in Cholleti Bharatamma(supra) where it

was held that the owner of the goods would be only covered if

he travels in the cabin of the vehicle. Since deceased Virender

Yadav and injured Lal Singh were travelling in the rear portion

of the tempo, their risk was not covered and the Insurance

Company would not be liable to pay the compensation at all

as it was clearly not a case of breach of the terms and conditions