Telangana High Court

Oriental Insurance Company Ltd vs Muneshwer Bhasker And Anr on 25 October, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                  M.A.C.M.A.NO.1533 OF 2017

JUDGMENT:

The present appeal has been filed by the appellant-

Insurance Company aggrieved by the impugned order, dated

30.11.2016 in M.V.O.P.No.219 of 2011 passed by the Motor

Accidents Claims Tribunal-cum-Principal District Judge at

Adilabad (for short, 'Tribunal') and thereby, seeking to set aside

the impugned order.

2. The appellant herein is the respondent No.2-insurance

company, respondent no.1 herein is the petitioner/claimant and

respondent No.2 herein is the respondent No.2/owner of the

crime vehicle before the Tribunal. For convenience, the parties

hereinafter are referred to as they are arrayed before the Tribunal.

3. The brief factual matrix of the present appeal is that on

14.11.2007 at about 11.30 a.m., petitioner along with others

boarded a Jeep bearing registration No.MH-27-2790 (hereinafter

referred to crime vehicle) from Maniyarpoor village to Bela and

when they reached outskirts of Dahegaon village, the driver of

the crime vehicle drove the same at high speed in rash and

negligent manner and lost control over the jeep and as a result,

the crime vehicle turned turtle and the inmates of the vehicle

received grievous injuries. The petitioner suffered fractures of

right hand and greater luberosity brachial hemoproxia and

dislocation of right shoulder, right wrist, right elbow apart from

other injuries all over the body. Immediately, the injured persons

along with the petitioner were shifted to Government Hospital at

Adilabad and the petitioner was treated as inpatient till

22.11.2007 and later he has taken treatment in the hospitals at

Maharashtra and Hyderabad. The Police, Bela Police Station

registered a case in Crime No.42 of 2007 against the driver of

crime vehicle and filed charge sheet.

4. According to the petitioner, he was hale and healthy, aged

36 years as on the date of accident and was earning Rs.5,000/- per

month as a farm labourer and on account of said accident, he

sustained fracture and other injuries and now he is unable to do

any work and became permanently disabled; that he spent huge

amount for treatment and medicines and therefore, he filed claim

petition claiming compensation of Rs.1,50,000/- against the

respondents.

5. Before the Tribunal, respondent No.1-owner of the crime

vehicle remained ex parte. Respondent No.2-Insurance Company

filed counter denying all the allegations in the claim petition as

regards the accident to the deceased, age, avocation, injuries

suffered and income of the petitioner. It was further contended

that the driver of crime vehicle did not have a driving licence and

permit to transport passengers, which is violation of policy

conditions and therefore, the insurance company is not liable to

pay any compensation; that the compensation claimed is

excessive and exorbitant and prayed to dismiss the claim petition.

6. Basing on the above pleadings, the following issues are

framed for trial:

i). Whether there was any accident on 14.11.2007 at about 20.00 hours near Dahegaon village as alleged by the petitioner due to rash and negligent driving by the driver of Jeep bearing No.MH-22-7950 of 1st respondent or whether there was any contributory negligence on the part of the petitioner ?

ii) Whether the petitioner suffered injuries and disability as alleged ?

iii) Whether there was any insurance coverage for the driver of Jeep bearing no.MH-22-7950 and if so, does the policy cover the risk of petitioner and if so, was there any breach of policy conditions alleged by the second respondent ?

iv) Whether the petitioner is entitled to any compensation, if so, what extent and against whom ?

v) To what relief ?

7. On behalf of the petitioner, petitioner himself was

examined as P.W.1 and Exs.A1 to Ex.A5 were marked. On behalf

of the respondent No.2-insurance company, R.W.1 was examined

and Ex.B1-copy of police was marked.

8. The Tribunal, on due consideration of oral evidence and

material placed on record, came to conclusion that the accident

took place due to rash and negligent driving of the crime vehicle

by its driver and awarded total compensation of Rs.1,11,400/-

along with interest @ 7.5% per annum.

9. Heard Smt A.Anasuya, learned counsel for the appellant-

Insurance company and Sri Akkam Eshwar, learned counsel for

the respondent No.1/petitioner. Perused the record.

10. During the course of hearing of appeal, learned counsel for

appellant-insurance company submitted that Tribunal erred in

awarding compensation for the injuries sustained by the

petitioner in the accident making the insurance company liable

even though the policy issued by the insurance company does

not cover the risk of fare paying passengers of a private vehicle;

that the Tribunal erred in not following the orders passed in a

connected case arising out of the same accident, in which the

Tribunal held that allowing the passenger for fare in the private

vehicle amounts to breach of policy conditions and insurance

company is not liable to pay compensation as insurance company

and therefore, the Tribunal ought to have exonerated the

insurance company from its liability and as such, prayed the

Court to set aside the award passed by the Tribunal.

11. Learned counsel for appellant-insurance company placed

reliance on the following decisions:

i) United India Insurance Co.Ltd., Shimla v. Tilak Singh and others 1;

ii) Oriental Insurance Company Ltd., v.Surendra Nath Loomba 2.

12. Per contra, learned counsel for the respondent no.1/

petitioner submitted that on due consideration of the evidence

and material placed on record, the Tribunal had rightly awarded

the compensation and also held insurance company was liable to

pay the compensation amount and therefore, and no grounds are

made out to interfere with the award passed by the Tribunal and

prayed the Court to dismiss the appeal.

Consideration:

13. The principal contention of the learned counsel for

appellant/insurance company is that there was gross negligence

on the part of the petitioner as he boarded the overcrowded non-

transport vehicle, which amounts to contributory negligence;

that the petitioner was travelling as hired passenger; that Ex.B1-

insurance policy covers only third party insurance and that the

risk of the passengers in the crime vehicle was not insured and no

2006 (4) SCC 404

2012(13) SCC 792

separate payment was made to cover the passengers and

therefore, the insurance company is not liable to pay any

compensation and prayed to allow the appeal setting aside the

award passed by the Tribunal.

14. Perusal of Ex.B1-policy copy would show that the

insurance policy was issued in the name of the respondent no.1

and the crime vehicle was a private vehicle. At the time of the

alleged accident, the policy was in force; that the policy copy filed

by the insurance company does not cover the inmates of the jeep.

As per the premium schedule of Ex.B1-policy, it does not disclose

payment of separate premium for the passengers. As per the

limitation clause under Ex.B1-policy, the policy covers use of the

vehicle for any purpose other than a) hire or reward, b) carriage

of goods (other than samples or personal luggage), c) organized

racing, etc.; that the said policy disclose that it was a passenger

carrying vehicle, but carriage of passengers on hire or reward is

prohibited.

15. Petitioner in his cross-examination before the Tribunal

testified that he had to pay a sum of Rs.7/- for travelling in a

crime vehicle from Maniyarpur from Bela, which strengthen the

contention of the insurance company. It is thus clear that

petitioner was a passenger travelled in a crime vehicle at the time

of the accident. Thus, the policy terms were violated and

therefore, the policy does not cover the risk of the petitioner.

However, without considering the policy conditions, the Tribunal

erred in holding that the insurance company is liable to pay the

compensation and the same needs to be modified. Further, the

Tribunal in connected matter arising out of the same accident has

rightly held that insurance company was not liable to pay

compensation to the claimant therein.

16. In Tilak Singh (supra), the Hon'ble Apex Court held as

under:

"18. Thus, even under the 1939 Act the established legal position was that unless there was a specific coverage of the risk pertaining to a gratuitous passenger in the policy, the insurer was not liable. We find that clause (ii) of the proviso to Section 95(1) has been eliminated while drafting Section 147 of the 1988 Act. Under sub-section (1)(b) under the 1988 Act, compulsory policy of insurance required under the statute must now provide against any liability which may be incurred by the owner of the vehicle "in respect of the death of or bodily

injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place".

21. In our view, although the observations made in Asha Rani case [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger."

17. The above judgment squarely applies to the facts of the

present case. However, another judgment relied upon by the

learned counsel for appellant in Surendra Nath Loomba (supra),

does not come to the aid of the petitioner as the facts are

completely different and has no application to the facts of the

present case.

18. However, with regard to exoneration of insurance company

from its liability for payment of compensation amount, it is

relevant to mention that the Motor Vehicles Act is beneficial

legislation aimed at providing relief to victims and their families.

In Manuara Khatun and others v. Rajesh Kumar Singh and

others 3, the Hon'ble Apex Court by referring to the judgment of

the Hon'ble Apex Court in National Insurance Co. Ltd., v. Saju

P.Paul 4, held as under:

"15. This question also fell for consideration recently in

National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [Saju P. Paul v. National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against

(2017) 4 SCC 796

(2013) 2 SCC 1

the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".

......

17. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] also having held that the victim was "gratuitous passenger", this Court issued directions against the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings."

The Hon'ble Apex Court by following the decision of Saju

P.Paul's case (supra), ultimately held as under:

"21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) -- they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be

issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 :