Jammu & Kashmir High Court

United India Insurance Company Ltd vs Bano Begum on 22 February, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                              Serial No. 06


    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT JAMMU
Case:-    MA No. 94/2010
          IA No. 1/2017

United India Insurance Company Ltd., Divisional     .....Appellant(s)/Petitioner(s)
Office-I, Alson Building, Opposite Hotel Asia,
Jammu.
Through it's Divisional Manager,
Mr. S. C. Sharma, Aged 52 years.

                       Through: Mr. Ravinder Sharma, Advocate.

                 Vs

1. Bano Begum, age 30 years, W/o Saif Ullah                     ..... Respondent(s)
   Lone, R/o Village Rakh Jarog, (Dharmound)
   Batote, At present Gujjar Nagar, Jammu.
2. Madan Murari, S/o Sh. Ram Parkash,
   R/o Wazir Wali Gali, Talab Tillow, Jammu.

                       Through: Mr. A. G. Sheikh, Advocate
                                Mr. Sheikh Altaf, Advocate.
Case:-    MA No. 93/2010
          IA Nos. 1/2017 & 145/2010

United India Insurance Company Ltd., Divisional     .....Appellant(s)/Petitioner(s)
Office-I, Alson Building, Opposite Hotel Asia,
Jammu.
Through it's Divisional Manager,
Mr. S. C. Sharma, Aged 52 years.

                       Through: Mr. Ravinder Sharma, Advocate.

                 Vs

1. Shameema Begum, age 31 years,                                ..... Respondent(s)
   W/o Mangat Ullah, R/o Village Rakh Jarog,
   (Dharmound) Batote, At present Gujjar Nagar,
   Jammu.
2. Madan Murari, S/o Sh. Ram Parkash,
   R/o Wazir Wali Gali, Talab Tillow, Jammu.

                       Through: Mr. A. G. Sheikh, Advocate
                                Mr. Sheikh Altaf, Advocate.

Case:-    MA No. 112/2010
          IA No. 181/2010 & 1/2017

United India Insurance Company Ltd., Divisional   .....Appellant(s)/Petitioner(s)
Office-I, Alson Building, Opposite Hotel Asia,
                                          2             MA No. 94/2010
                                                       along with connected appeals



Jammu.
Through it's Divisional Manager,
Mr. S. C. Sharma, Aged 52 years.

                       Through: Mr. Ravinder Sharma, Advocate.

                 Vs

1. Khalida Begum, age 22 years, W/o Parvez                     ..... Respondent(s)
   Ahmed, R/o Village Rakh Jarog, (Dharmound)
   Batote, At present Gujjar Nagar, Jammu.
2. Madan Murari, S/o Sh. Ram Parkash, R/o Wazir
   Wali Gali, Talab Tillow, Jammu.

                       Through: Mr. A. G. Sheikh, Advocate
                                Mr. Sheikh Altaf, Advocate.

Coram: HON‟BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                     ORDER

(22.02.2024)

(ORAL)

1. By this common judgment, the instant appeals preferred against the

common award dated 17.11.2009 (for short, 'impugned award‟) passed by the

Motor Accidents Claim Tribunal, Jammu (for short „the Tribunal‟) are being

disposed of, in that, the issues involved therein the said appeals are akin and

analogous to each other.

2. The brief facts emerging from the record would reveal that the claim

petitions came to be filed by the claimants/respondents herein in the instant

appeals before the Tribunal for compensation under the provisions of the Motor

Vehicles Act 1988 (for short the Act of 1988) stating therein that the claimants

had fetched green grass from the jungle and loaded the same in a vehicle/truck

bearing registration No.JK02G 9235 (for short, „offending vehicle‟) at the

Bhagaliar Dam against the payment of Rs. 10/- per passenger including the grass

along with connected appeals

charged by the driver of the offending vehicle who drove the offending vehicle

rashly and negligently as a result whereof, the offending vehicle met with an

accident and the claimants travelling therein with their grass sustained injuries

whereupon the claimants/respondents herein were shifted to Government

Medical College, Jammu for treatment.

The claimants/respondents herein in the aforesaid claim petitions

impleaded the owner of the vehicle as party respondent and the United India

Insurance Company Limited/appellant herein being the Insurance Company with

which the offending vehicle was insured on the date of accident.

The appellant herein in response to the notice issued by the Tribunal

in the claim petition appeared and filed objections to the said claim petitions

stating therein that the offending vehicle was a goods carrier, carrying

passengers at the time of accident against the terms and conditions of the

insurance policy and that the offending vehicle was being driven by the driver

without being possessed a valid and effective driving license and that the

offending vehicle was being plied in violation of the route permit, fitness

certificate, registration certificate and the terms and conditions of the Insurance

Policy.

3. The Tribunal on the pleadings of the contesting parties framed the

following issues:-

1. Whether an accident took place on 6.4.03 near JPI Barrier at Bhagaliar Dam site on Jammu-Srinagar NHW 1A due to the rash and negligent driving of offending vehicle NO. 9235 JK02G in the hands of erring driver in which petitioners namely; Bano Begum, Sakeena Begum, Shameema Begum and Khalida Begum sustained grievous nature of injuries? OPP

along with connected appeals

2. If issue No. 1 is proved in affirmative whether petitioners in all the claim petitions are entitled to the compensation if so to what amount and from whom? OPP

3. Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license to t he knowledge of owner of offending vehicle and as such has violated the terms and conditions of insurance policy? OPR-2

4. Whether the petitioners were traveling in a goods carrier in violation of terms and conditions of insurance policy as such respondent company is not liable to pay any compensation? OPR-2

5. Relief. O.P. Parties.

4. The claimants/respondents herein appeared as their own witnesses as

also produced other witnesses as well including Doctors who had treated them in

order to prove issues 1 & 2 onus whereof was put on them. Insofar as issues 3 &

4 are concerned, the onus to prove the same was put on the respondent 2 being

appellant herein which, however, did not produce any witness in order to prove

the said issues.

5. The Tribunal after adjudicating upon the claim petitions and having

regard to the facts of the each claim petitions, the evidence on record saddled the

appellant herein with liability to pay the compensation to the

claimants/respondents herein.

6. The instant appeals, the appellant herein has challenged the impugned

award/s inter alia on the grounds that the award has been passed against facts

and law and that the Tribunal totally ignored the law laid down by the Supreme

Court in regard to the entitlement of the compensation to a passenger travelling

in a goods vehicle and that the Tribunal also lost sight of the fact that the copy

of the FIR produced by the claimant reflected that 10 to 12 passengers got

along with connected appeals

injured in the accident being in violation of the mandate of section 147 of the

Act of 1988 and the terms and conditions of the insurance policy.

Heard learned counsel for the parties and perused the record.

7. Learned counsel for the appellant while making his submissions

would vehemently argued that the Tribunal grossly erred while passing the

impugned award ignoring the fact that the claimants/respondents herein at the

time accident were travelling in a goods carrier and were not covered in the

insurance policy and that no premium thereto have had been paid for such

passengers by the insured/owner of the offending vehicle, as such, the

claimants/respondents were not entitled to compensation and the appellant not

liable to pay the same.

Learned counsel for the appellant in support of his arguments having

relied upon the judgment of the Apex Court passed in case titled "M/s National

Insurance Co. Ltd. Vs. Baljit Kaur and others" and would submit that the

Apex Court in the said judgment laid down that a gratuitous passenger travelling

in the goods carrier cannot be awarded compensation under and in terms of the

provisions of the Act of 1988.

On the contrary, while opposing the submissions made by learned

counsel for the appellant, the counsel for the claimants/respondents herein

would contend that the appellant is precluded from raising such plea before this

Court in the instant appeal, in that, the appellant failed to produce any evidence

in this regard before the Tribunal which have had framed an issue thereto

putting onus appellant herein to prove the same.

along with connected appeals

Learned counsel for the claimants/respondents herein would further

submit that the judgment of the Apex Court (supra) relied upon by learned

counsel for the appellant does not lend any support to the case of the appellant

herein as the claimants/respondents herein were not travelling as gratuitous

passengers in the offending vehicle, but were, travelling therein the said vehicle

as persons/owners of the goods loaded in the offending vehicle belonging to the

claimants/respondents for which the claimants/respondents were charged by the

driver of the offending vehicle and that under section 147 of the Act of 1988, the

claimants/respondents herein are entitled to receive compensation on account of

a vehicular accident under and in terms of the provisions of the Act of 1988.

8. Having regard to the aforesaid rival submissions of the appearing

counsel for the parties, it would be appropriate to refer to the provisions of

section 147 of the Act, 1988 as amended by the Motor Vehicles (Amendment

Act, 1994) which read as follow:

"147. Requirements of policies and limits of liability-(1) In order to comply with the requirements of this Chapter, a policyof insurance must be a policy which-

(a)

(b) insurers the person or classes of persons specified in the policy to extent specified in sub-section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) *** (emphasis added)"

along with connected appeals

The aforesaid provision and its application came to be debated and

interpreted by the Apex Court in case titled "M/s National Insurance Co. Ltd.

Vs. Baljit Kaur and others" reported in AIR 2004 SC 1340 wherein at paras-

17 & 20 following came to be noticed:

"17. By reason of the 1994 Amendment what was added is "including the owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.

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

along with connected appeals

to the extent of the benefit of insurance to such category of

people."