Telangana High Court
National Insurance Company Ltd vs D.Surender on 14 February, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
M.A.C.M.A. No. 363 OF 2014
JUDGMENT:
1. This Motor Accidents Civil Miscellaneous Appeal is filed
aggrieved by the judgment dated 22.06.2011 in O.P.No. 27 of
2011, passed by the Chairman, Motor Accidents Claims Tribunal-
cum-I Additional District Judge, Adilabad (for short 'the Tribunal')
disputing the compensation awarded by the Tribunal.
2. The appellant herein is the Respondent No.2 insurer in the
aforesaid OP.
3. Heard Mr. A. Ramakrishna Reddy, learned standing counsel
for the appellant and Ms. B. Sai Priya learned Counsel appearing
for Respondent No.2 herein. Despite service of notice Respondent
No.1/claimant remains unrepresented.
4. The brief facts of the case are that on 10.03.2007 at 7.40
p.m. the Respondent No.1 herein was getting into the lorry bearing
No. AP-IT-7152, when the driver of the offending vehicle had
suddenly driven it in a rash and negligent manner causing the
Respondent No.1 herein to receive fracture to his left leg and other
injuries on his face, chest, abdomen, left hand and forearm.
Resultantly, the Respondent No.1 herein had filed the under lying
OP seeking a compensation of Rs.2,00,000/-.
5. The Tribunal on considering the oral and documentary
evidence on record, had held that the accident had occurred due to
the rash and negligent driving of the driver. Holding the Appellant
herein and the Respondent No.2 herein as jointly and severally
liable, the Tribunal allowed the OP in part, granting a total
compensation of Rs.65,000/- along with a simple interest @ 8%
p.a. from the date of petition till the date of deposit.
6. Learned Counsel appearing for the appellant contends that
since the Respondent No.1 herein is a passenger travelling in a
transport vehicle i.e., the offending lorry, liability to pay
compensation cannot be imposed on the insurer.
7. Learned counsel for the Respondent No.2 herein while
denying his liability to pay compensation held, that the respondent
No.1 himself was responsible for the injuries sustained by him, as
he was moving on the road in an un-mindful of traffic resulting in
accident. Thus, it is contended that the order of the Tribunal cannot
be sustained.
8. I have taken note of their respective contentions.
9. The sole issue arising before this Court is as to whether
Respondent No.1 herein was a gratuitous passenger in the
offending vehicle.
10. A gratuitous passenger is one who is invited by the owner of
the vehicle to travel in the said vehicle, and not one who is carried
for hire or reward (See: The Oriental Fire and General Insurance
Company Ltd. Vs. Matta Chandra Rao and Ors 1).
11. A perusal of the record indicates that the driver of the
offending vehicle Mr. K. Gangaram was not examined before the
Tribunal. Further, it is to be seen that the respondent No.1 herein
claims to have sustained injuries while boarding the offending
vehicle, whereas the appellant claims that respondent No.1 was
travelling in the offending vehicle as a passenger. Contrarily, the
respondent No.2 owner of the vehicle while denying both claims,
contends that the accident had occurred due to Respondent No.1's
'unmindful movement' on the road. Therefore, since the Motor
Vehicles Act, 1988 (for short 'the Act, 1988') is a beneficial
legislation where the standard of proof is preponderance of
possibilities (See: Rajwati and Ors. Vs. United India Insurance
1987(1)APLJ (HC) 135 : MANU/AP/0158/1986
Company Ltd. and Ors 2) and considering the fact that neither the
appellant nor the respondent No. 2 herein have led any evidence to
establish that the respondent No.1 herein was infact a gratuitous
passenger and not a second driver as claimed by the appellant, this
Court does not find fault with the order of the Tribunal.
12. That apart even assuming that the respondent No.1 herein is
a second driver, it is to be seen that the Tribunal had noted of he
having sustained injuries while boarding the offending vehicle. The
High Court of Gauhati (Imphal Bench) under identical
circumstances in United India Insurance Co. Ltd. Vs. P.
Ruilaiwung and Ors 3, held that a person who sustains injuries
while boarding or alighting a vehicle cannot be termed as a
passenger. The relevant observations are as under:
"9. From the evidence as discussed above, it is clear that the vehicle is a truck
for carrying of goods and in fact on the date of accident also the truck was
carrying sand. When the deceased wanted to get into the truck, the driver
stopped the vehicle but before the deceased could enter into the truck the
vehicle started again. Thus, the deceased could not board in the vehicle. The
learned counsel for the appellant also cited decision of the Orissa High Court in
the case of United India Insurance Co. Ltd. v. Susila
PanigrahyMANU/OR/0008/1995(Orissa), wherein it was held that a person
merely making attempt to get into the vehicle but before he could actually
board, the vehicle hit him as a result of which he fell down, sustained injuries
and died, cannot be construed as a passenger. In the case of Prakash Anand
Pednekar v. Sitabi K. Gawas MANU/MH/0022/1995(Bombay), it was also held
that when a deceased fell down while trying to make entry in crowded bus,
cannot be termed as passenger though he only wanted to be a passenger. Thus,
in the present case the deceased only wanted to become a passenger and
due to rash and negligent act of the driver, the deceased could not become a
passenger of the truck. Thus, considering the materials on record and also
MANU/SC/1595/2022 :2022 LiveLaw (SC) 1016
2001ACJ2053 : MANU/GH/0278/1999
the relevant provisions of law as alluded in the decisions, I am of the view
that the deceased was not a passenger and hence the appellant is liable to
pay the entire amount of compensation."
(emphasis supplied)
13. Similar views were expressed by the High Court of
Himachal Pradesh through Justice Deepak Gupta, (as his lordship
then was) in Sanjeev Gautam Vs. Surinder Kumar and Ors 4.
14. This Court is in agreement with the views expressed above,
that a person who is in the process of alighting/boarding a vehicle
in the absence of evidence to establish that he/she was authorized
to board the said vehicle ought to be considered as a third party.
15. In the light of the foregoing discussion, this Court is of the
view that the impugned order does not suffer from any infirmity.
16. Accordingly, this Motor Accident Civil Miscellaneous
Appeal is dismissed.
17. Pending miscellaneous petitions if any, shall stand closed.
No order as to costs.
______________________
T. VINOD KUMAR, J
14th February, 2025.
mrkr/vsv
2007(4)RCR(Civil)271 : MANU/HP/0084/2006
