Rajasthan High Court - Jodhpur

National Insurance Company ... vs Pinki @ Milee And Ors on 17 October, 2023

Bench: Madan Gopal Vyas

[2023:RJ-JD:33171]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Misc. Appeal No. 212/2002

National Insurance Co Ltd. Registered Office 3, Midiltan Street, Calcutta, Branch Office Sardulganj, Bikaner through Divisional Manager, National Insurance Company Ltd., Residency Road, Jodhpur

----Appellant Versus

1. Mahendra Kumar S/o Sh. Ram Pratap, Profession - Vaidh (Private), resident of village Madasar, Teshil Pokaran, District Jaisalmer.

2. Rekha D/o Mahendra Kumar

3. Pinki @ Milee D/o Mahendra Kumar

4. Babita D/o Mahendra Kumar Respondent No.2 to 4 minor, through their natural guardian father Mahendra Kumar S/o Sh. Ram Pratap, Profession - Vaidh (Private), resident of village Madasar, Tehsil Pokarn, District Jaislamer Claimants

5. Smt. Gora Devi W/o Sh. Hariramji, resident of Kolayat, District Bikaner Jeep Owner.

6. Pukhraj S/o Narayan Lal, resident of Phalodi, at present residing at Bajju, Tehsil Kolayat, District Bikaner.

----Respondent Connected With (2) S.B. Civil Misc. Appeal No. 197/2002 National Insurance Co Ltd. Registered Office 3, Midiltan Street, Calcutta, Branch Office Sardulganj, Bikaner through Divisional Manager, National Insurance Company Ltd., Residency Road, Jodhpur

----Appellant Versus

1. Pinki @ Milee D/o Mahendra Kumar, minor through her natural guardian Mahendra Kumar S/o Ram Pratap, Profession- Vaidh (Private), resident of village Madasar, Tehsil Pokaran, District Jaisalmer.

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Injured-applicant.

2. Smt. Gora Devi W/o Sh. Hariramji, resident of Kolayat, District Bikaner Jeep Owner.

3. Pukhraj S/o Narayanlal, resident of Phalodi, at present residing at Bajju, Tehsil Kolayat, District Bikaner.

Jeep Driver.

----Respondent (3) S.B. Civil Misc. Appeal No. 198/2002 National Insurance Co Ltd. Registered Office 3, Midiltan Street, Calcutta, Branch Office Sardulganj, Bikaner through Divisional Manager, National Insurance Company Ltd., Residency Road, Jodhpur

----Appellant Versus

1. Smt. Gayatri W/o late Sh. Madanlal, resident of Bajju, Tehsil Kolayat, District Bikaner.

2. Neelam D/o Late Sh. Madanlal, minor through natural guardian mother Smt. Gayatri W/o Late Sh. Madan Lal, resident of Bajju, Tehsil Kolayat, District Bikaner.

Claimants.

3. Smt. Gora Devi W/o Sh. Hariramji, resident of Kolayat, District Bikaner Jeep Owner.

4. Pukhraj S/o Narayan Lal, resident of Phalodi, at present residing at Bajju, Tehsil Kolayat, District Bikaner.

Jeep Driver.

----Respondent

For Appellant(s) : Mr. Sanjeev Johari, Sr. Advocate with Mr. Lalit Parihar For Respondent(s) : Mr. RJ Punia, for the respondent-

owner

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

DATE OF JUDGMENT 17/10/2023

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Challenging the common judgment and award dated

02.01.2002 passed by the learned Judge, Motor Accident Claims

Tribunal, Bikaner (hereinafter referred to as the learned Tribunal

for short) in MACT Cases Nos.105/1996, 68/1996 and 66/1996

the appellant-Insurance Company has preferred three separate

civil misc. appeals.

2. As the facts as well as the arguments advanced by the

learned counsel for the respective parties are common, therefore,

all the three appeals are being decided by this common judgment.

3. The facts in nutshell are that an accident occurred on

02.10.1995 at a place situated about 2 kms from Dhirera on the

way to Lunkaransar. In the said accident, Sharda Sharma and

Madanlal expired and other claimants sustained injuries. The

deceased and the claimants were travelling in a Jeep bearing

no.RNF-1145 (hereinafter referred to as the offending vehicle for

short) which was owned by Gora Devi, who is impleaded as

respondent in all the civil misc. appeals. The learned Tribunal

while holding that the appellant-Insurance Company failed to

produce any evidence in its favour, held the appellant-Insurance

Company liable and awarded compensation to the claimants.

Aggrieved by the impugned judgment and award, the appellant-

Insurance Company filed the present appeals.

4. Mr. Sanjeev Johari, learned Senior Counsel at the outset

submits that on the basis of the evidence oral as well as

documentary available on record, it is proved by the appellant-

Insurance Company that the offending vehicle was insured for the

personal use and not for carrying the passengers for hire and

reward. It is submitted that the policy was exhibited before the

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learned tribunal and a bare perusal of the same would reveal that

no premium was taken by the appellant-Insurance Company for

carrying passengers. Learned Senior Counsel submits that in

view of the above, there is violation of the terms and conditions of

the policy by the owner of the offending vehicle, but the learned

Tribunal has not considered this aspect of the matter. It is further

submitted that the learned Tribunal fastened the liability upon the

appellant-Insurance Company only on the basis that the appellant-

Insurance Company has not raised any specific plea regarding

violation of the terms and conditions of the policy, whereas if the

written statement of the appellant-Insurance Company is minutely

seen, then it is amply clear that the appellant-Insurance Company

specifically stated that there has been a violation of the terms and

conditions of the policy. Thus, it is submitted that the findings of

learned Tribunal that the appellant-Insurance Company failed to

prove the violation of the policy conditions is not correct. Learned

Senior Counsel submits that in view of the above, the present

appeals deserve to be allowed and the appellant-Insurance

Company be exonerated from its liability. In support of his

contentions, learned Senior Counsel relied upon the judgment of

the Hon'ble Supreme Court delivered in the case of Oriental

Insurance Co. Ltd. Vs. Meena Variyal & Ors. reported in

(2007) 5 SCC 428 and judgment of this Court in the case of

Leeladhar Vs. Mahendra Singh & Ors (SBCMA no.211/2002),

decided on 18.2.2021.

5. Per contra, learned counsel appearing for the respondent-

owner while opposing the prayer made by learned Senior Counsel

appearing for the appellant-Insurance Company submits that the

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learned Tribunal after considering each and every aspect of the

matter, has rightly passed the impugned judgment and award and

therefore, the same does not call for any interference. It is

submitted that at the relevant point of time, the offending vehicle

was not plying on hire basis and no fare was taken from the

claimants. It is submitted that even the appellant-Insurance

Company failed to prove that there was any violation of terms and

conditions of the policy. Therefore, it is submitted that all the

three appeals preferred by the appellant-Insurance Company may

be rejected.

6. Heard the learned counsel for the parties and scrutinized the

entire record.

7. The learned Tribunal while passing the impugned judgment

and award held that the appellant-Insurance Company failed to

raise any specific plea that there was violation of the policy

conditions. For this purpose, I perused the written statement of

the appellant-Insurance Company, precisely para no.29 of the

additional submissions, which reads as under:

" 29- ;g fd chek /kkjh us chek 'krksZ dk mYy?kau fd;k gSa blfy, mRrjnkrk ds eqvkots dh jk'kh pqdkus gsrq mRrjnk;h ugha gSA "

I have also perused the statements of the witness of the

appellant-Insurance Company as well as the statements of the

claimants.

AW-1 Smt. Gayatri, in her statements recorded on oath has

stated as under:

"thi geus fdjk;s ij yh Fkh vkSj thi Mz~kbZoj dks fdjk;s esa ls 1]000@& ¼,d gtkj :i;s½ Mhty Hkjkus ds fn;s FksA ....

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;g lgh gS fd thi dk fdjk;k ,d gtkj :i;s vfxze fn;k FkkA"

AW-2 Mahendra Kumar in his statements recorded on oath

has stated as under:

";g ckr lgh gS fd thi dks geus iSls nsdj fdjk;s ij ;k=k dh FkhA vFkkZr thi fdjk;s ij djds mles ;k=k dh Fkh"

So far as the witness of the appellant-Insurance Company

i.e., NAW-1 Indraj Singh, who was the then Assistant

Administrative Officer, Divisional Office, National Insurance

Company Ltd., Bikaner is concerned, he in his Court statements

stated that:

"mi;ksx lacaf/kr 'krZ izn'kZ&11 es , ls ch es vafdr gS vkSj izn'kZ ,u-,- &1 ikWfylh esa Hkh , ls ch esa vafdr gSA mDr 'krZ ds vuqlkj ;fn okgu dks fdjk;s ij lokjh <ksus ds fy;s iz;qDr fd;k tkrk gS rks gekjk dksbZ nkf;Ro ugha curk gSA"

I have also perused the Insurance Policy. A perusal of the

same makes it clear that the same is 'A Policy for Act Liability' and

is a personal policy. The condition no.(b) of 'Limitations as to

use' is relevant for the purpose of present controversy, which

reads as under:

"(b) Private service Vehicle & non transport Vehicle (For Act Cover) The Policy Covers use for any purpose other that (a) hire or reward (b) organised or (c) Speed testing."

8. In view of the above, it is clear that the appellant-Insurance

Company has specifically pleaded and proved by way of oral and

documentary evidence that there was breach of policy conditions

as even the claimants in their statements have stated that they

travelled in the offending vehicle after paying the fare. The

learned Tribunal has not considered this vital aspect of the matter

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while directing the appellant-Insurance Company to indemnify the

award amount.

9. In National Insurance Company Limited v. Sahidan Bano

reported in 2015 (2) RAR 892 (Raj.), it was held that:

"11. In view of the settled legal position, as aforesaid, it remains no longer res integra that the impugned direction of the learned Tribunal in the impugned order dated 08.03.2006 to the appellant-Insurance Company to pay and recover, cannot be sustained. The insurance cover in question was admittedly, "ACT ONLY POLICY" and did not cover the risk of fare paying passenger, like deceased Kursheed @ Khursheed, who admittedly hired the Jeep alongwith 4-5 persons for Rs.200/- on the fateful day of accident on 15/16.12.1998. He therefore, could not be said to be a 'third party' covered by the said policy in question, as rightly found by the learned Tribunal in the order dated 08.03.2006. The learned Tribunal has however, fallen into error in applying the judgment in the case of Swaran Singh (supra), in which the direction to pay and recover is given only for the compensation awarded to a third party and this decision was clarified by the Hon'ble Supreme Court in the later decision in the case of Meena Variyal (supra) vide aforesaid quoted portions. Therefore, the impugned direction in the order dated 08.03.2006 deserves to be set aside. The owner and driver of the Jeep will however, continue to be liable to pay the compensation payable to the legal representatives of the deceased Kursheed @ Khursheed. Nobody has represented them before this Court, despite

service. "

10. Accordingly, all the three appeals are hereby allowed. The

impugned judgment and award dated 02.01.2002 is quashed and

set aside to the extent of holding the appellant-Insurance

Company liable and it is held that the appellant-insurance

Company is exonerated from its liability and the respondent-owner

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is liable to pay the award amount to the claimants. It is also held

that the appellant-Insurance Company is entitled to recover

amount of award from the respondent-owner, if already paid by it

to the claimants.

10. All the interlocutory applications as well as stay applications

stand disposed of accordingly.