Jharkhand High Court
National Insurance Company Ltd. vs Pairwanti Devi on 28 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 169 of 2009
National Insurance Company Ltd., Lohardaga .... .... Appellant
Versus
1. Pairwanti Devi
2. Rakhi Kumari
3. Arti Kumari
4. Sakuntala Kumari
5. Mahli Sahu
6. Jitu Sahu
7. Sayamu Mahli .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. D.C. Ghose, Advocates
For the Respondents : Mr. Rajesh Kr. Mahtha, Advocate
Mr. Jay Shankar Tiwary, Advocate
C.A.V. ON 08.03.2022 PRONOUNCED ON 28 /03 /2022
1. The Insurance Company has preferred the instant appeal
against the judgment and award of compensation passed by the learned
Additional District Judge-cum-M.A.C.T., F.T.C.-I, Gumla in M.A.C.T.
Case No.10 of 2004 whereby and whereunder, the compensation has been
awarded in favour of the claimants.
2. The learned counsel on behalf of the appellant has confined his
argument to the liability part and not on the quantum of compensation
awarded.
3. The instant appeal has been preferred mainly on the ground that
as per the first information report (Ext.-4), the accident took place when
the deceased Jitrai Turi was travelling on the truck loaded with Bauxite
along with 20 to 22 persons as a gratuitous passenger, the truck
overturned resulting in accidental death of the deceased. C.W.1 in
paragraphs 4 and 5 has deposed that more than 20 passengers were
travelling on the same truck along with the deceased at the relevant time
of accident. It is argued that permission by the owner to the deceased to
travel on the truck as gratuitous passenger was in breach of the terms of
the insurance policy and therefore the Insurance Company should not be
liable under Section 149 (2) of the M.V. Act.
4. Learned counsel for the owner respondent nos. 5 and 6 has
submitted that it is consistent case of the claimant as set out in the claim
petition that the deceased was carrying goods i.e. bamboo which he had
purchased from the local market and he was not a gratuitous passenger
but, was travelling on the truck as the owner of the goods and at the
relevant time of accident. This version is supported by C.W.1 who has
herself deposed that her husband was carrying bamboo made articles on
the truck.
5. The main point for determination in the instant appeal is
whether the deceased was travelling on the truck as a gratuitous passenger
or as the owner of the goods being carried by the truck?
6. As per the claim petition the deceased was going on his daily
work of selling his products by the truck which met with the accident
resulting in his death. The F.I.R (Ext 4) states that the offending truck was
loaded with bauxite and about 20-22 persons were travelling which
overturned resulting in injury of several persons. Claimant number one
Pairwanti Devi (C.W. 1) has stated in para 3 of her examination in chief
that her husband was running a cottage industry of bamboo products. He
used to sell his produce in the market and at the relevant time of the
accident he was carrying his products to the market place on the truck on
the date of accident on 08.06.2003. There, is absolutely no question put to
this witness in the cross-examination regarding this and it has remained
uncontroverted. Under the circumstance the oral evidence of the claimant
cannot be cast away. C.W. 2 has emphatically stated that due to paucity of
passenger vehicles, they had no option but to travel on the truck loaded
with bauxite by paying their fare to the owner of the vehicle. At the time
of accident 20-22 persons were travelling on the said truck. Jitrai Turi
died in the accident.
7. On these evidences, it can be inferred that at the time of
accident the truck was loaded with bauxite and the deceased was also
travelling on the said truck along with other 20 - 22 persons. The main
goods which was being carried on the truck was bauxite but the testimony
of the C.W. 1 that her husband was an artisan and he was carrying
bamboo products on the truck has remained uncontroverted in the cross-
examination. The possibility of multiple products being carried by the
truck at the time of accident cannot be discounted. The learned court
below has noted this aspect and has recorded a finding of fact that the
deceased was not a gratuitous passenger. Appellant has failed to cite any
other cogent evidence on record to disbelieve the oral evidence of the
claimant no.1 (C.W. 1) and draw an inference different from the learned
court below. It is settled principle of law that the while appreciating
evidence, the appellate Courts should not upset the findings of the Court
below merely because two views are possible. Under the circumstance, I
am not inclined to upset the finding of the Tribunal that the deceased was
not a gratuitous passenger at the relevant time of the accident.
The appeal is, accordingly, dismissed. The Insurance Company
is permitted to withdraw the statutory amount deposited at the time of
filing of the appeal.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th March, 2022
AFR / AKT
