Rajasthan High Court – Jodhpur
Mazid vs Smt. Raj Kanwar & Ors on 28 April, 2009
CMA 248/1989 -Mazid Vs. Smt. Raj Kunwar & Ors. Judgment dt.28.4.09
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S.B. CIVIL MISC. APPEAL NO.248/1989
Mazid Vs. Smt. Raj Kunwar & Ors.
Date of order : 28th April, 2009
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. R.K. Purohit for Mr. L.R. Mehta for the appellant-owner.
Mr. P.K. Bhansali for the respondent - Insurer Company..
Mr. G.Vaishnav, for the claimants.
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1. Heard learned counsels.
2. This appeal has been filed by one Shri Mazid owner of
the vehicle namely Truck No.RJG 2771 being aggrieved by the
impugned award of MACT, Chittorgarh deciding MACT Case
No.148/1988 vide order dated 10.8.1989 whereby the learned
Tribunal held that the respondent No.3, United India Insurance
Company would be liable to pay the compensation to the claimants in
respect of death of one Bhim Singh to the extent of Rs.50,000/- and
the balance compensation of this Rs.50,800/- would be payable by the
owner and driver of the vehicle. The total compensation of
Rs.1,00,800/- was awarded by the Tribunal on account of death of
Bhim Singh in an accident which took place on 18.4.1986 while the
said Bhim Singh along with one Moti Singh were returning back from
Bhilwara after emptying the goods (Bhusa) at Bhilwara and while the
said truck reached Railway crossing, it collided with another tanker
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from back side on account of rash and negligent driving by the
respondent No.2 Ramswaroop and on account of said accident, said
person Bhim Singh died.
3. The Tribunal after recording evidence of the parties
awarded a compensation of Rs.1,00,800/- in favour of the claimants
and directed its payment as aforesaid.
4. Being aggrieved of the said award, the owner has
approached this Court by way of present appeal to the extent of
directions of the Tribunal for part payment of compensation by him.
5. The respondent Insurance Company has also filed cross-
objections this Court on 15.11.1989 as also the claimants.
6. Mr. R.K. Purohit, learned counsel for the appellant
owner of the vehicle submitted that the owner has also filed the copy
of insurance cover note along with the application under Order 41
Rule 27 C.P.C. which shows that the vehicle in question was covered
for the period 15th January, 1986 to 14th January, 1987 with the
following premiums totaling of Rs.474/- which was paid by the
owner to the insurance company :-
BP 240.00
Add Driver / cleaner 16.00
Add 4 labour 32.00
Add 4 NF PP 36.00
Unlimited Per Inj prop
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Damages Rs.3,00,000 150.00
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474.00
7. He further submitted that the Tribunal has arrived at the
finding of fact on the basis of evidence that said Bhim Singh along
with PW 3 Moti Singh had hired the said vehicle for carrying goods
and on the date of accident also they were carrying the goods and
after emptying the goods at Bhilwara, they were proceedings further
to load other goods and, therefore, the deceased Bhim Singh cannot
be said to be a gratuitous passenger in the said goods vehicle and,
therefore, the insurance company was fully liable to pay the
compensation awarded by the Tribunal by the impugned award and
the liability could not be fastened upon the owner of the vehicle.
8. On the side opposite, Mr. P.K. Bhansali, learned counsel
appearing for the Insurance company urged relying upon the
decisions of the Hon'ble Supreme Court in case of Oriental
Insurance Co. Ltd. Vs. Sudhakaran K.V. & Ors. - 2008(2) RLW
1680 (SC), Mallawwa & Ors. Vs. Oriental Insurance Co. Ltd. And
ors. - 1999 ACJ 1 and the decision of Himacha Pradesh High Court in
case of United India Insurance Co. Ltd. Vs. Hiralal & Ors. - 2007
ACJ 1398 and submitted that the said deceased Bhim Singh could not
be said to be the owner of the goods accompanying along with the
goods in vehicle as admittedly the goods in question had been
CMA 248/1989 -Mazid Vs. Smt. Raj Kunwar & Ors. Judgment dt.28.4.09
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emptied at Bhilwara and empty truck was returning back from the
said place while it met with the said accident. He submitted that as
per the decision of the Hon'ble Supreme Court in Oriental Insurance
company Vs. Sudhakaran K.V.'s case (supra) the position of the said
deceased Bhim Singh was akin to the pillion rider and, therefore, the
insurance company could not be held liable. He relied upon para 23
of the said judgment, which is reproduced herewith for ready
reference:-
"(23). The law which emerges from the said
decisions, is : (i) the liability of the insurance
company in a case of this nature is not extended to
a pillion rider of the motor vehicle unless the
requisite amount of premium is paid for covering
his/her risk (ii) the the legal obligation arising
under Section 147 of the Act cannot be extended to
an injury or death of the owner of vehicle or the
pillion rider; (iii) the pillion rider in a two wheeler
was not to be treated as a third party when the
accident has taken place owning to rash and
negligent riding of the scooter and not on the part
of the driver of another vehicle."
9. Relying on other two judgments, he submitted that the
said deceased Bhim Singh cannot be said to have hired the said
vehicle in question and, therefore, could not be taken as owner of the
goods and his position was that of a gratuitous passenger and in view
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of the judgments cited by him, the insurance company could not be
held liable.
10. Having heard learned counsels and having gone through
the record of the case and the impugned judgment of the Tribunal,
this Court is of the opinion that there is no force in the submissions
made by the learned counsel for the Insurance Company. The
Tribunal has found as a matter of fact that the deceased along with
another person Moti Singh, who deposed before the Tribunal as PW 3
that both these persons had taken the said truck insured by the
Insurance company respondent No.3 for carrying goods on hire on
monthly basis from the owner of the vehicle the present appellant. At
the time of accident also, the said persons were returning back from
the site Bhilwara. They had emptied one lot of goods. In view of
these findings, which this court does not find any reason to hold them
to be perverse in any manner and the said findings of fact are binding,
it cannot be held that the deceased Bhim Singh was either a gratuitous
passenger in the said goods vehicle or his case may be equated with
that of a pillion rider, who was held to be not a third party by the
Hon'ble Supreme Court in case of Oriental Insurance company Vs.
Sudhakaran K.V. (supra). Moreover in view of the premium charged
by the insurance company to the extent of Rs.36/- for non fare
passengers also as is evident from the copy of the cover note
produced with the application under Order 41 Rule 27 CPC, there is
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no reason to hold that the said insurance company was not liable to
pay the entire compensation determined by the Tribunal in present
case.
11. In view of this, the judgments relied upon by the learned
counsel for the Insurance Company are of no avail to it and the
Tribunal appears to have erred in holding the owner liable to pay the
compensation to the extent of Rs.50,800/- in para 19 of the judgment.
12. Application under Order 41 Rule 21 is, therefore, liable to be
allowed and the same is allowed.
13. Consequently this appeal of the owner is allowed and the
impugned order is set aside to the extent it holds the owner liable to
pay the part of compensation and in view of the aforesaid
circumstances, the Insurance Company is liable to pay the entire
compensation as awarded by the Tribunal. No order as to costs.
[ DR. VINEET KOTHARI ], J.
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