Hdfc Ergo General Insurance ... vs Magan Rai
2023 Latest Caselaw 3986 MP

                              1                     M.A.No.1798/2014




IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                              BEFORE
      {   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                    ON THE 14th OF MARCH, 2023

                    MISC. APPEAL No. 1798 of 2014

BETWEEN:-

HDFC ERGO GENERAL INSURANCE COMPANY
LTD. ITS MANAGER JABALPUR (MADHYA
PRADESH)
                                                    .....PETITIONER

(BY SHRI ROHIT JAIN - ADVOCATE)

AND


1.        MAGAN RAI S/O PUSHU RAI, AGED ABOUT
          46 YEARS, GRAM NADAN, POST HARDUA,
          P.S. SIMARIA, DISTT. PANNA, M.P.
          (MADHYA PRADESH)

2.        CHHATRAPAL SINGH YADAV S/O MANGAL
          ISNGH, AGED ABOUT 27 YEARS, GRAM
          HARDUA POLICE STATION SIMARIA
          DISTT. PANNA (MADHYA PRADESH)

3.        SOMCHANDRA JAIN S/O BABULAL JAIN
          VIJURI CHARGAVAN ROAD, TEHSIL
          SHAHPURA,   JABALPUR    (MADHYA
          PRADESH)
                                                .....RESPONDENTS

     (NONE FOR THE RESPONDENTS EVEN IN THE SECOND ROUND)
                               2                         M.A.No.1798/2014




      This appeal coming on for admission this day, the court passed
the following:
                                  ORDER

This Misc. Appeal under Section 173 of Motor Vehicles Act has been filed against the Award dated 09.05.2014 passed by Additional Member, Motor Accident Claims Tribunal, Panna in M.A.C.C. No. 06/2013.

2. The facts necessary for disposal of present appeal, in short are that on 16.05.2012, the injured and deceased persons after loading their goods were coming to Krashi Mandi, Katni by Truck No.MP-35- GA-4990. The Driver of the offending Truck bearing registration No.MP-35-GA-4990 by driving the truck in a rash and negligent manner turned the Truck up side down, as a result the claimant sustained injuries. The Claims Tribunal held the Insurance Company liable for the reason that the injured was traveling in a goods carries along with his goods, therefore, there is no violation of insurance policy.

3. Challenging the findings recorded by the Claims Tribunal, it is submitted by the counsel for the appellant that in Paragraph 36 of impugned award, it is specifically mentioned that the respondent No.1/claimant was sitting on the Gunny bags loaded on the truck and was not sitting in the cabin of the truck and therefore, in the light of judgment passed by the Supreme Court in the case of National

Insurance Co. Ltd. v. Cholleti Bharatamma, reported in (2008) 1 SCC 423, Insurance Company is not liable.

4. None appears for the respondents, even in the second round.

5. The only question for consideration is as to whether the respondent No.1/claimant was traveling in the cabin of the truck or he was sitting on his goods loaded on the offending truck?

6. In Paragraph 36 of the impugned award, the Claims Tribunal has specifically held that the respondent No.1 was sitting on his goods loaded on the truck. Thus, it is clear that the respondent No.1/claimant was not sitting in the cabin of the truck.

7. The Supreme Court in the case of Cholleti Bharatamma (supra) has held as under:-

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

8. Since, the respondent No.1/claimant was not traveling in the cabin of the truck but was sitting on his goods loaded on the truck, this Court is of the considered opinion that the Insurance Company was wrongly held to be jointly responsible to pay compensation along with driver and owner of the truck.

9. Accordingly, the Insurance Company/appellant is exonerated of its liability.

10. The Full Bench of Madras High Court in the case of United India Insurance Co. Ltd. v. Nagammal and others, reported in 2009 ACJ 865 has held that in such case the Principle of Pay and Recover cannot be applied.

11. As a consequence thereof, the award dated 09.05.2014 is modified to the extent mentioned above.

12. The appeal succeeds and is allowed.

(G.S. AHLUWALIA) JUDGE vinay* Digitally signed by VINAY KUMAR BURMAN Date: 2023.03.17 18:14:16 +05'30'