New India Assurance Co. Ltd. vs Kiran Jain And Ors. on 26 April, 2000

Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Kiran Jain And Ors. on 26 April, 2000
Equivalent citations: 2001 ACJ 730
Author: A Mishra
Bench: B Singh, A Mishra


A.K. Mishra, J.

1. The insurer has filed the present appeal aggrieved by award, dated 17.11.1999, passed by Motor Accidents Claims Tribunal (XII), Jabalpur with respect to death of one Subhash Chand Jain, in Claim Case No. 430 of 1994. A sum of Rs. 1,66,000 has been awarded along with the interest at the rate of 12 per cent per annum by the Tribunal. The interest was confined to two years’ period prior to the date of award.

2. On 18.10.1987, truck bearing No. MBK 7343, which was being driven by owner respondent No. 3, Komal Chand Jain, fell down in river from Tilwara Ghat bridge after hitting the deceased. Consequently, Subhash Chand Jain died in the accident and F.I.R. was lodged at police station. As Subhash Chand died, claim petition was filed by the claimants claiming a sum of Rs. 11,65,000. Deceased was aged 24 years. He was earning Rs. 2,000 per month and was spending a sum of Rs. 1,500 on the family. Widow and minor daughter had filed the petition. The owner did not file any written statement. The insurer in the reply contended that Subhash Chand was a relative of the owner, the truck was driven by driver who was not properly trained and was not possessing a valid driving licence and due to his fault the truck fell into the river. Thus, the liability was that of the owner as the deceased was non-fare-paying passenger and it was a case of violation of the condition of the insurance policy.

3. Claims Tribunal found that it was not proved that the deceased was travelling inside the truck, but he was hit by the truck which was driven rashly and negligently by respondent No. 1. On account of loss of grams the Tribunal has awarded Rs. 30,000 of which liability to the extent of Rs. 6,000 was placed on the insurer and of Rs. 24,000 on the owner of the track. The monthly income was assessed at Rs. 1,200 per month, one-third amount was deducted on account of self-expenditure by the deceased, multiplier of 16 applied, total dependency was determined at Rs. 1,53,600. On account of loss of consortium a sum of Rs. 5,000 and funeral expenses Rs. 1,400 were awarded. Thus, total compensation of Rs. 1,90,000 was awarded owing to the death of Subhash Chand, the deceased.

4. The learned counsel for the appellant has raised the submission that the driver was not possessing a valid driving licence, that the deceased was travelling as gratuitous passenger in the truck, which was in violation of the condition of the policy and insurer was not liable to indemnify.

5. With respect to the licence the insurer failed to lead any evidence that driver was not possessing valid driving licence. No evidence was led in the case by the insurer or by the owner. The burden of proof that the driver was not possessing valid driving licence was on the insurer and the owner and they failed to lead any evidence. In order to seek exemption from the liability it was incumbent upon the insurer to lead the evidence. No statement on oath was made in that regard.

6. The insurer has come with the plea that the deceased was a gratuitous passenger. The case of gratuitous passenger has been considered by the Apex Court in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC), and it has been held that the insurer cannot escape its liability with respect to the gratuitous passenger in the new Act. However, this ratio is not attracted in the instant case, as there is finding recorded by the Tribunal that at the time of the accident, deceased was not inside the truck and the truck had hit the deceased while the deceased was on the bridge. Thus, in view of the finding insurer cannot escape the liability. The learned counsel was unable to satisfy as to the violation of any term of the insurance policy.

7. The Tribunal has found that at the time of accident the deceased was not inside the truck but was on the bridge and met with an accident when tyre of the truck burst all of a sudden and hit the deceased. The claimants’ case has been found to be proved by the Tribunal. Thus, it is not borne out that the deceased was travelling as a gratuitous passenger in the truck or in any other capacity.

8. The appeal is dismissed.

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