Rajasthan High Court - Jodhpur

Fula Ram And Anr vs Smt. Chandru Devi And Ors on 17 August, 2021

Bench: Vinit Kumar Mathur

(1 of 7) [CMA-862/2001]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 862/2001

1. Shri Fula Ram Jat S/o Shri Pitha Ram Jat, Resident of Ratanpura, Tehsil Rajgarh, Distt. Churu (Rajasthan)

2. Shri Suresh Kumar Jat S/o Shri Ladu Ram Jat, Resident of 9/571, Malviya Nagar, Jaipur at present residing at Ratanpura, Tehsil Rajgarh, Distt. Churu (Rajasthan)

----Appellants Versus

1. Srimati Chandru Devi W/o Shri Ramswaroop by Caste Dharaka, resident of Village Dokawa, Tehsil Rajgarh, Distt. Churu.

2. Srimati Ompati D/o Shri Ramswaroop

3. Srimati Kamlesh D/o Shri Ramswaroop

4. Srimati Dhhapa D/o Shri Ramswaroop

5. Srimati Geeta D/o Shri Ramswaroop

6. Srimati Manbhari D/o Shri Ramswaroop

7. Srimati Kosalya D/o Shri Ramswaroop

8. Srimati Ram Chaki D/o Shri Ramswaroop All minors daughters through their mother and natural guardian Srimati Chandru W/o Shri Ramswaroop.

9. Shri Deleep Kumar S/o Shri Ramswaroop Minor through mother a nd natural guardian Smt. Chandru W/o.Shri Ramswaroop

10. Srimati Dharka W/o shri Sugana Ram All residents of Village Dokawa, Tehsil Rajgarh, Distt. Churu (Rajasthan)

11. United India Insurance Company Ltd. Having its branch Office Near Alok Cinema, Churu (Rajasthan)

----Respondents Connected With S.B. Civil Misc. Appeal No. 863/2001

1. Shri Fula Ram Jat S/o Shri Pitha Ram Jat, Resident of Ratanpura, Tehsil Rajgarh, Distt. Churu (Rajasthan)

2. Shri Suresh Kumar Jat S/o Shri Ladu Ram Jat, Resident of 9/571, Malviya Nagar, Jaipur at present residing at Ratanpura, Tehsil Rajgarh, Distt. Churu (Rajasthan)

----Appellants

(2 of 7) [CMA-862/2001]

Versus

1. Man Singh S`/o Shri Sera Ram by caste Jat, resident of Village Dokawa, Tehsil Rajgarh, Distt. Churu (Rajasthan)

2. United India Insurance Company Ltd. Having its branch Office Near Alok Cinema, Churu (Rajasthan)

----Respondents S.B. Civil Misc. Appeal No. 872/2001

1. Shri Fula Ram Jat S/o shri Pitha Ram Jat, Resident of Ratanpura, Tehsil Rajgarh, Distt. Churu (Rajasthan)

2. Shri Suresh Kumar Jat S/o Shri Ladu Ram Jat, Resident of 9/571, Malviya Nagar, Jaipur at present residing at Ratanpura, Tehsil Rajgarh, Distt. Churu (Rajasthan)

----Appellants Versus

1. Srimati Kamlesh W/o Shri Satyaveer by caste Jat, resident of Village Dokawa, Tehsil Rajgarh, Distt. Churu (Rajasthan)

2. United India Insurance Company Ltd. Having its branch Office Near Alok Cinema, Churu (Rajasthan)

----Respondents

For Appellant(s) : Mr. Sanjay Nahar, Mr. Pushkar Tamini For Respondent(s) : Mr. Jagdish Vyas, Mr. Lalit Parihar, Mr. Sanjeev Johari, Mr. Shubhankar Johari, Mr. Ajay Singh Rathore & Mr. Shailendra Gwala

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

17/08/2021

Since all three appeals arise out of the common judgment

and award dated 01/11/2000, the same are being disposed of by

this common judgment.

These appeals arise out of the judgment dated 01/11/2000

passed by the Motor Accident Claims Tribunal, Rajgarh (Churu) in

Motor Accident Claims Case Nos. 27/1997, 45/1997 & 39/1997

(3 of 7) [CMA-862/2001]

vide which the claim petitions of the claimant/respondents were

allowed.

The Tribunal, after framing the issues, evaluating the

evidence on record and hearing counsel for the parties, decided

the claim petition of the claimant.

Heard learned counsel for the parties.

The claim petitions were preferred by the claimants on

account of an accident which occurred on 28/04/1997. The

claimants and Ramswaroop boarded the insured vehicle TATA 407

RJ 10G0347 driven by Suresh Kumar. The vehicle was insured with

the respondent Insurance Company as "goods vehicle" for which

requisite premium was paid. Deceased Ram Swaroop as well as

the injured claimants/respondents travelled in the goods vehicle

as a 'fare pay passengers'. The Tribunal, after adjudicating issue

No.2, came to the conclusion that the claimants, who boarded the

vehicle were 'fare pay passengers' and were not supposed to

travel in the same as the offending vehicle was a goods vehicle

and, therefore, the Insurance Company was not liable to

compensate the claimants for the accident which occurred on

28/04/1997 and, therefore, the finding on issue No.2 was decided

against the appellant.

Learned counsel for the appellant/owner of the vehicle

assailed the findings recorded by the Tribunal vide its judgment

dated 01/11/2000 on the ground that the liability to pay

compensation cannot be fastened on the present appellant as the

vehicle involved in the accident was insured with the respondent

Insurance Company. The requisite premium for the same was duly

paid and at the time of accident, it was within the currency of the

insurance cover. Therefore, the Insurance Company cannot escape

(4 of 7) [CMA-862/2001]

from the liability of paying the compensation in the present case.

He further submits that the vehicle insured with the respondent

company was being driven by the person who was having a valid

driving licence and, therefore, there is no breach of the policy

condition and it is the liability of the insurance company to pay the

compensation. He submits that the finding arrived at by the

Tribunal on issue No.2 is erroneous and, therefore, he prays for

setting aside the same.

Per contra, learned counsel for the respondent Insurance

Company and the claimants supported the findings recorded by

the Tribunal vide its judgment dated 01/11/2000 on the ground

that even as per the claimants/appellants, the factum of paying

the fare price for travelling in the subject vehicle has come on

record and, therefore, the finding on issue No.2 recorded by the

Tribunal does not suffer from any infirmity. Learned counsel for

the respondent submits that even as per the statements of the

injured persons, it has come on record that they paid the amount

for travelling in the subject vehicle from Dokawa to Rajgarh.

Learned counsel, therefore, submits that the findings recorded by

the Tribunal on issue No.2 are absolutely in-conformity with the

law laid down by the Hon'ble Supreme Court in the case of

National Insurance Company Limited vs. Savitri Devi &

Others, reported in (2013) 11 SCC 554.

I have considered the submissions made at the Bar and

gone through the impugned judgment passed by the Tribunal as

well as the record of the case.

The finding on issue No.2 recorded by the Tribunal to the

effect that the offending vehicle was a goods vehicle is fortified

from the fact that the Insurance Cover Note clearly shows that the

(5 of 7) [CMA-862/2001]

vehicle was insured with the respondent/company for carrying the

goods and, therefore, the claimants who boarded this vehicle were

'fare pay passengers'. It is also noted that as per the claim

application as well as the statements of the claimants, it is

apparent that the claimants have boarded the vehicle after paying

the amount to the driver for travelling from Dokawa to Rajgarh,

therefore, it has come on record that the subject vehicle was not

insured with the Insurance Company for the purpose of carrying

the passengers and, therefore, no liability of paying the

compensation on account of the accident can be fastened with the

Insurance Company. For the better appreciation of the facts, the

findings recorded by the Tribunal on issue No.2 is reproduced as

under :-

"vc tgka rd {kfriwfrZ jkf"k vnk;xh ds laca/k esa vizkFkhZx.k ds nkf;Ro dk iz"u gS] bl laca/k esa vizkFkhZ la[;k 1 chek dEiuh ds ;ksX; vfHkHkk'kd ioudqekj "kekZ us rdZ izLrqr fd;k fd chek izek.k i= o dojuksV ls ;g Li'V gS fd ftl okgu ls nq?kZVuk gqbZ og vizkFkhZ la[;k 1 ds ;gka xqMl Oghdy ds :i esa chfer Fkk ftldk iath;u Hkh gYds okf.kfT;d okgu ds :i esa gSA iath;u izek.k i= esa bl okgu esa eky <ksus ds vfrfjDr pkyd lfgr cSBus ;ksX; O;fDr;ksa dh la[;k vafdr ugha dh xbZ gS fdUrq eksVjokgu vf/k- ds izko/kkuksa ds vuqlkj blesa vf/kdre rhu ;k=h pkyd lfgr cSBus dh {kerk gS rFkk chek izek.k i= Hkh okgu ds pkyd] eky ds Lokeh vFkok vf/kd`r izfrfuf/k lfgr rhu O;fDr;ksa ls vf/kd dk chek ugha fd;k x;k gS tcfd izkFkhZx.k ds c;ku ds vuqlkj pkyd us bl okgu esa djhc 25&30 O;fDr;ksa ls fdjk;k ysdj ;k=k djus gsrq mUgsa okgu esa cSBk;k gS ftudk dksbZ chek vizkFkhZ la[;k 1 ds ikl djk;k gqvk ugha FkkA bl izdkj Li'V :i ls chek 'krksZa dk mYya?ku fd;k x;k gSA vr% bl vk/kkj ij vizkFkhZ la[;k 1 fdlh Hkh eqvkots gsrq nk;h ugha gSA ;kf=;ksa ls fdjk;k ysdj bl eky okgd Vªd esa ;k=k djus dk Kku okgu Lokeh Qwykjke ,u,MCyw 3 dks Hkh iw.kZ :i ls Fkk ftlus vius izfrijh{kk esa izFke iafDr esa gh Lohdkj fd;k gSA bl izdkj chfer O;fDr dks bl mYya?ku dk iw.kZ Kku FkkA

------------------------------------------------------

------------------------------------------------------- vr% mijksDr dkj.k ls eky okgd ;ku esa fdjk;k ysdj ;k=k djokus rFkk vizkFkhZ lqjs"k ds ikl oS/k vuqKki= ojoDr nq?kZVuk u gksus ls Li'V :i ls chek "krksZa dk mYya?ku gqvk gS rFkk bl vk/kkj ij vizkFkhZ la[;k 1 chek daiuh bl nq?kZVuk esa izkFkhZx.k dks gqbZ {kfr ds

(6 of 7) [CMA-862/2001]

ckcr nk;h ugha gS ijUrq vizkFkhZ la[;k 2 o 3 Øe"k% ekfyd o pkyd {kfriwfrZ vnk djus dks nkf;Rok/khu gSA tks bl gsrq la;qDr :i ,oa i`Fkd i`Fkd mRrjnk;h gSA"

The finding of the fact recorded by the Tribunal is also

correct and in conformity with the observations of the Hon'ble

Supreme Court delivered in the case of National Insurance

Company Limited vs. Savitri Devi & Others (supra). Paras 8, 9

and 10 of the said judgment are reproduced as under :-

"8. After having gone through the award of the Claims Tribunal and the judgment and Order passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the Appellant-Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the Courts recording that the vehicle in question was insured only as "Goods carrying Vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the Appellant-Insurance Company liable to pay the amount of compensation. Admittedly, Appellant- Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the Insurance Policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of Workman's Compensation Act.

9. The specific case of the claimants was that the barat was being taken in the said open truck on 12.11.1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy.

10. Dealing with similar circumstance, this Court has held in "National Insurance Company Ltd. v. Bommithi Subbhayamma and others" (SCC p.246, paras 9-11) as under:

"9.... 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

(7 of 7) [CMA-862/2001]

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 was any premium paid to the extent of the benefit of insurance to such category of people."