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.

                                          -----

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
                              ----------
                               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
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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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