Madhya Pradesh High Court
Hdfc Ergo General Insurance ... vs Santosh Rai on 14 March, 2023
Author: Gurpal Singh Ahluwalia
1 M.A.No.1797/2014
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. 1797 of 2014
BETWEEN:-
HDFC ERGO GENERAL INSURANCE
COMPANY LTD. JABALPUR
THROUGH MANAGER JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ROHIT JAIN - ADVOCATE)
AND
1. SANTOSH RAI S/O SHRI MAGAN
RAI, AGED ABOUT 21 YEARS,
OCCUPATION: SHOP KEEPING
R/O GRAM NADAN, POST
HARDUA, P.S. SIMARIA, DISTT.
PANNA (MADHYA PRADESH)
2. CHHATRAPAL SINGH YADAV
S/O MANGAL SINGH, AGED
ABOUT 27 YEARS R/O GRAM
HARDUA POLICE STATION
SIMARIA DISTT. PANNA
(MADHYA PRADESH)
3. SOMCHANDRA JAIN S/O
BABULAL JAIN, R/O VIJURI
CHARGAVAN ROAD, TEHSIL
SHAHPURA, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
2 M.A.No.1797/2014
(NONE FOR THE RESPONDENTS)
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.
03/2013.
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 carriage 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 . 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 18:09:18 +05'30'
