Shriram Gen. Ins. Co. Ltd . vs Smt. Kshama Kahar
2023 Latest Caselaw 7724 MP

                           1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 11th OF MAY, 2023
                MISC. APPEAL No. 1117 of 2021

BETWEEN:-

SHRIRAM GEN. INS. CO. LTD . THRO. BRANCH
MANAGER SHRIRAM GENERAL INS. CO. LTD.
FIRST FLOOR PLOT NO. 48 M.P. NAGAR ZONE - 2
BHOPAL (MADHYA PRADESH)
                                                .....APPELLANT
(BY SHRI T.S.LAMBA - ADVOCATE)

AND

1.    SMT. KSHAMA KAHAR W/O LATE SHRI
      RAJU KAHAR, AGED ABOUT 28 YEARS,
      RESIDENT   OF   NAYA    MOHALLA
      DHANABAD RAIPUR TAH. AND DISTT.
      HOSHANGABAD (MADHYA PRADESH)

2.    SURAJ KAHAR S/O LATE SHRI RAJU
      KAHAR,  AGED   ABOUT   10 YEARS,
      OCCUPATION: MINOR THR. NATURAL
      GUARDIAN MOTHER SMT. KSHAMA
      KAHAR RESIDENT OF NAYA MOHALLA
      DHANABAD RAIPUR TAH. AND DISTT.
      HOSHANGABAD (MADHYA PRADESH)

3.    KU. ANSHIKA D/O LATE SHRI RAJU
      KAHAR,  AGED   ABOUT   8  YEARS,
      OCCUPATION: MINOR THR. NATURAL
      GUARDIAN MOTHER SMT. KSHAMA
      KAHAR RESIDENT OF NAYA MOHALLA
      DHANABAD RAIPUR TAH. AND DISTT.
      HOSHANGABAD (MADHYA PRADESH)

4.    ANIKET S/O LATE SHRI RAJU KAHAR,
      AGED ABOUT 5 YEARS, OCCUPATION:
                                  2


        MINOR   THR.   NATURAL  GUARDIAN
        MOTHER SMT. KSHAMA KAHAR RESIDENT
        OF NAYA MOHALLA DHANABAD RAIPUR
        TAH.  AND    DISTT.  HOSHANGABAD
        (MADHYA PRADESH)

   5.   AMAN S/O LATE SHRI RAJU KAHAR, AGED
        ABOUT 9 YEARS, OCCUPATION: MINOR
        THR. NATURAL GUARDIAN MOTHER SMT.
        KSHAMA KAHAR RESIDENT OF NAYA
        MOHALLA DHANABAD RAIPUR TAH. AND
        DISTT.    HOSHANGABAD      (MADHYA
        PRADESH)

   6.   ABBU ALIAS ABHAYRAM KAHAR S/O LATE
        SHRI NANHE KAHAR, AGED ABOUT 60
        YEARS, RESIDENT OF NAYA MOHALLA
        DHANABAD RAIPUR TAH. AND DISTT.
        HOSHANGABAD (MADHYA PRADESH)

   7.   SMT. MALTI BAI W/O SHRI ABBU ALIAS
        ABHAYRAM KAHAR, AGED ABOUT 55
        YEARS, RESIDENT OF NAYA MOHALLA
        DHANABAD RAIPUR TAH. AND DISTT.
        HOSHANGABAD (MADHYA PRADESH)

   8.   MAHESH PAL S/O BHAGWAN PAL, AGED
        ABOUT 45 YEARS, WARD NO. 8 SHAHGANJ
        PS SHAHGANJ (MADHYA PRADESH)
                                                        .....RESPONDENTS
   (RESPONDENTS NO.1 TO 3 BY SHRI PRIYANK KHANDELWAL - ADVOCATE)
   (RESPONDENT NO.8 BY SHRI U.S.TIWARI - ADVOCATE)

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

1. This Misc. Appeal under section 173 of the Motor Vehicles Act has been filed against the award dated 25.1.2021 passed by Member, Motor Accident Claims Tribunal Hoshangabad in M.A.C.C.No.88/2019.

2. It is submitted by counsel for the appellant that since the deceased was travelling on the loading portion of the vehicle along with his vegetables, therefore, the Insurance Company is not liable on account of violation of the terms and conditions of the insurance policy.

3. It is true that in the light of the judgment passed by the Supreme Court in the case of National Insurance Company Limited Vs. National Insurance Company Limited Vs. Baljeet Kaur, reported in (2004)2 SCC 1 the owner of the goods can travel in a goods vehicle along with the goods but submitted that in the light of judgment passed by the Supreme court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268, if the owner of the goods is not travelling in the cabin then the Insurance company is not liable to indemnify the insured.

4. Per contra, it is submitted by counsel for the respondents that the witnesses had specifically stated that deceased Raju was travelling along with his vegetables but no suggestion was given to any of the witnesses in their cross examination that Raju was not travelling in the cabin of the pickup van.

5. Heard the learned counsel for the parties.

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

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

7. Smt.Raksha Kahar, (AW1) in her affidavit under Order 18 Rule 4 CPC has stated that the deceased was sitting in the pickup van along with vegetables. Further more, this witness is not an eyewitness.

8. Vimal Kahar, (AW2) in para 4 of his cross examination has stated that he and one more person were travelling along with the driver in the cabin whereas remaining 5 persons were sitting behind. He admitted that except deceased Raju and all other persons did not sustain any injury. If the evidence of this witness is considered then it is clear that in para 4 of his cross examination he did not claim that he and deceased Raju were travelling in the cabin along with driver. Thus, it is clear that deceased Raju was sitting on the loading portion of the vehicle along with his vegetables. Under these circumstances, it is held that since the deceased was not sitting in the cabin of the loading vehicle, therefore, the Insurance Company is not liable on the ground of violation of terms and conditions of the Insurance policy and there is no coverage for the passengers.

9. Now the only question for consideration is as to whether the Insurance Company is liable to be exonerated in toto or the principle of pay and recover can be applied.

10. It is submitted by counsel for the appellant that since the deceased was not covered by the Insurance policy, therefore, the Insurance company is not liable to pay the compensation amount.

11. Per contra, it is submitted by counsel for respondents no.1 and 2 that if there was any violation of the terms and conditions of the Insurance policy then the claimants who are the legal representatives of the deceased cannot be made to suffer for the reason that not only they

were stranger to the agreement between the insurer and the insured in the form of insurance policy but the deceased was a third party and had no role to play in the accident.

12. Heard the learned counsel for the parties.

13. It is not the case of the Insurance Company or the owner and driver that in spite of objection by the driver, the deceased was travelling on the loading portion of the goods vehicle. If the driver of the insured has permitted the deceased to sit on the loading portion of the vehicle then it was a voluntary act on the part of the driver for which the deceased cannot be held responsible. Unless and until it is pleaded and proved that it was the deceased who in spite of serious objection by the driver or by ignoring the resistance of the driver sat on the loading portion of the vehicle, the deceased cannot be held responsible for violating the terms and conditions of the insurance policy.

14. It is submitted by counsel for the appellant that since the insurance is the statutory liability and, therefore, if the deceased is not covered by the same, the doctrine of pay and recover cannot be applied. To buttress his contention counsel for the appellant has relied upon the judgment passed by the Supreme Court in the case of New India Assurance Company Limited Vs. Asha Rani and others, reported in AIR 2003 SC 607.

15. The judgment relied upon by counsel for the appellant has no applicability to the doctrine of pay and recover. This court has already held that the Insurance Company is not liable and, therefore, this observation by the Court is already as per the dictum passed by the Supreme Court in the case of Asha Rani (supra) but the question for

consideration is as to whether doctrine of pay and recover can be applied or not. It is fairly conceded by counsel for the appellant that the judgment passed in the case of Asha Rani (supra) has not dealt with the said aspect.

16. Under these circumstances, where there is a private contract may be in the nature of statutory contract, is between the insured and the insurer and the deceased or the claimants are complete stranger to that statutory contract entered into between the insured and Insurer, therefore, they cannot be held to be bound by the said terms and conditions of the said policy unless and until they were made aware of the same prior to boarding the loading vehicle. The driver of the vehicle could not dare to appear in the witness box. It is not the case of the appellant that the deceased had boarded the vehicle on its loading part in spite of resistance of the driver. If somebody had boarded the vehicle contrary to the instructions of the driver then it was expected from the driver that he should not have started the vehicle at all. Thus, the vehicle with the person sitting on the loading part of the vehicle without any resistance clearly indicates that deceased was permitted by the driver for sitting on the loading vehicle, therefore, it can be a violation of the terms and conditions of the Insurance Policy by the insured for which the injured or deceased cannot be held liable.

17. Under these circumstances, the Insurance Company is exonerated from its liability but shall pay the compensation amount with liberty to recover the same from the owner and driver of the vehicle.

18. With the aforesaid modification, the award dated 25.1.2021 passed by Member, Motor Accident Claims Tribuanl Hoshangabad in M.A.C.C.No.88/2019 is hereby affirmed.

19. The appeal succeeds and is allowed in part.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.05.11 18:46:34 +05'30' HS