Court no. 1
First Appeal From Order No. 144 of 1996
New India Assurance Co. Ltd. versus Hasina Begum and others
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the
record.
This First Appeal From Order has been filed challenging the
validity and correctness of the judgment and decree dated
16.11.1995 passed by the Motor Accident Claims Tribunal/VI
Additional District Judge, Fatehpur in Claim Petition No. 01 of
1980 whereby the Claims Tribunal awarded compensation of
Rs.90,000/- with interest at the rate of 12% per annum with effect
from 11.7.1995 in the following terms:-
ORDER
” The claim petition on behalf of only Smt. Haseena
Begum claimant no.1 is decreed for compensation of
Rs.90,000/- ( Rs.Ninety thousand only) against the
opposite parties jointly and severally. Interest at the rate
of 12% per annum from 11.7.1995 shall also be payable
on the said amount by the opposite parties jointly and
severally. Since the claimant is an illiterate widow, the
amount as awarded shall be paid through FDR in any
Nationalized Bank and the interest accrued thereon
shall be payable from time to time to the claimant Smt.
Haseena Begum. In case of urgency, the claimant Smt.
Haseena Begum may withdraw the required amount
showing genuine act.”
It appears from the record that the deceased Irrafil was
travelling from Fetahpur to Ghazipur on the left side of the roof
of bus no. UPW 2830,which met with an accident on 22.9.89 on
account of dashing of the vehicle coming from opposite side
against a Jamun tree. The deceased at about 12.15 on that fatal
day had sustained injuries to which he succumbed in the hospital.
The claim petition was filed by his widow, daughter and
sisters claiming compensation of Rs.3,12,000/- on the ground
that the deceased was an expert tailor and was working in a
Tailoring shop at Kanpur at the time of the accident.
The appellant Insurance Company not only denied the
factum of accident but also claimed that the vehicle in question
was being driven against the terms and conditions of Insurance
policy.
Learned counsel for the appellant submits that the
Insurance Company is not liable to pay any compensation
whatsoever to claimant no.1, Haseena Begum on account of the
reason that the deceased was not a passenger of the bus as he
was travelling on the top of the roof of the bus. He stated that the
Tribunal has given positive finding to the effect that the deceased
met with the accident in which the negligence of the deceased
was contributed as the accident was caused due to violation of
terms and conditions of the Insurance policy by the onwer/driver
and conductor of the vehicle, the appellant Insurance Company
cannot be held to be liable for payment of the compensation in
respect of the deceased.
The findings recorded by the Claims Tribunal have been
assailed on the ground that it is a case of contributory negligence
and also that the deceased was sitting on the roof of the bus as
such it can not be said that he was a valid passenger. Therefore,
the dependents of the deceased are not entitled to receive
compensation amounting to Rs.80,000/- as well as expenses of
Rs.10,000/- on other accounts.
According to him, no risk is covered by the Insurance
Company for a person sitting on the roof of the bus as he is not a
valid passenger and compensation, if any, was liable to be paid
by the owner, driver and conductor of the bus.
He has further argued that the Claims Tribunal has given a
positive finding of contributory negligence as such the
compensation awarded is liable to be set aside.
At the time admission of the appeal following interim order
was passed on 8.3.1996.
” Seen the office objection. The learned counsel
agrees to file type copy of the judgment.
Heard learned counsel for the appellant. The
liability by the Insurance Company has been
challenged in this appeal. There has been a deposit
of Rs. 25,000/- with the Registrar of this Court as
required under Section 173 of the Motor Vehicles
Act.
The appeal stands admitted. The sum of
Rs.25,000/- deposited here remitted down only to
the concerned Tribunal. The said amount may be
withdrawn by the claimants without any security. For
the rest of the awarded sum there shall be a stay on
realization subject to security to be given by the
present appellant before the Tribunal to his
satisfaction.
The respondents be noticed. The lower court
record be called for. Steps for notice be taken within
a week.
The matter be listed after two months.”
It appears from the order sheet dated 13.10.2009 that the
learned counsel for the appellant was granted ten days’ time for
moving substitution application in respect of respondent no.1 who
is said to have died in the year 2002. The order dated 13.10.2009
is as under:-
” On the request of learned counsel for the
appellant 10 days time is granted to move substitution
application of respondent no.1 who is said to have died
in the year 2002. If the steps are not taken for
substitution, then the appeal may be dismissed against
the deceased respondent under Chapter 12 rule 4 of
Allahabad High Court Rules.”
When the case was taken up today learned counsel for the
appellant on the basis of affidavit filed in this case, submits that
inspite of best efforts the appellant could not ascertain the exact
date of death of respondent no.1 and the local counsel engaged
by the appellant in civil Court at Fatehpur also could not ascertain
the exact date of death from any documents. However, the legal
heirs and representatives of deceased respondent no.1 have
been arrayed as opposite party nos. 2 and 4 to the claim petition
who are already on record.
I have considered the contention of learned counsel for the
appellant that the liability of the Insurance Company can only be
determined in case Insurance policy and driving licence are
proved to be valid and the driving of the vehicle is also held to be
valid in accordance with the terms and conditions of the Insurance
policy.
The Motor Accident Claims Tribunal framed following
issues on the basis of the pleadings of the parties on 11.7.1995.
1. Whether the accident was caused by rash and
negligent driving of bus no. UPW 2830 ? If so. Its effect ?
2. Whether the accident occurred due to the negligence
of the deceased himself as contended in para 3 of the
written statement by opposite party no.3 ?
3. Whether the bus in question was insured at the time of
accident and if so, whether it was being driven in
accordance with the terms and conditions of the
Insurance policy ?
4. Whether the driver of the bus was holding valid driving
licence at the time of accident ?. If so its effect ?
5. To what amount of compensation if any, are the
claimants entitled and from which of the opposite
parties ?
Issue nos. 1 and 2 were decided by the Claims Tribunal
holding that accident took place on account of joint negligence of
the driver, conductor and deceased.
In so far as issue no.3 is concerned, it has been held by the
Tribunal that from the papers filed by the Insurance Company it
was evident that the bus was duly insured and the Insurance
policy was valid from 10.3.89 to 9.3.89.
Now the question regarding payment of compensation is to
be decided in the light of the facts that the mother of the deceased
is admittedly gone to her heavenly abode during the pendency of
appeal and in the facts and circumstance to whom and in what
ratio should the compensation be now paid, if the appeal does not
succeed.
The Tribunal also considered the question as to whether the
sisters were impleaded by the mother of the deceased as
claimant nos. 2 to 4 could be awarded compensation relying upon
the case of Punjab State through Secretary versus Onkarnath,
1990, A.C.J. page-170, Regal Sports versus Mohd. Siddique
and others, 1994 A.C.J. page-294 and Ansari Begum and
another versus Har Nam Singh and others, 1995, A.C.J.page-
220 and held that only the claimant no.1, the mother of the
deceased was entitled to receive the amount of compensation
and compensation had not been awarded in the circumstances to
the sisters of the deceased. The Tribunal awarded compensation
in favour of claimant no.1 only amounting to Rs. 90,000/- against
the opposite parties jointly and severally along with interest at the
rate of 12% per annum from 11.7.95 as stated above.
The Claims Tribunal in the judgment has categorically held
that though it has come on record that there were 28 passengers
inside the bus but this statement could not be proved by filling of
the counterfoil of the tickets issued, hence it is very doubtful
whether the deceased was not a bonafide passenger. The
question whether the deceased was the passenger of the bus or
not. The word ‘passenger’ has been defined in Legal Glossary
published by the Government of India- ” as one, who travels in
some vessel or vehicle; a traveler by any public vehicles entered
by fare.” The deceased was sitting on left side of the roof of the
bus and was a passenger. The Claims Tribunal has therefore,
rightly come to the conclusion that though the deceased was
negligent yet he can be said to be a passenger.
Learned counsel for the appellant is unable to show
anything from record that any term and conditions of the
Insurance policy has been violated in any manner confronted with
the meaning of the word ‘passenger’. He has not been able to
show that a person travelling on roof of the vehicle cannot be said
to be a passenger ‘ or a bonafide passenger.
The law cannot be approved to all types of varied situations in
a straight jacket formula. It has to give meaning according to
circumstances, place and conditions at the relevant time.
In India generally there is dearth of transport in proportion
to travellers or passengers. In villages people has developed a
concept of purchasing old chassis of some other old discarded
vehicle and ply on the road and some persons use it as diesel
engine for irrigation of fields. In places where the buses are
overcrowded with the passengers the people are also travelled on
the roof of the bus. Similarly, it has been witnessed that some
passengers travel on the roof of the train. This is a daily routine
matter and some of the passengers travel in the train by catching
the rod fitted at the door of the compartment of the train. Many a
death are caused in this manner of travelling. This does not desist
the people from travelling on the vehicle on which they are
travelling. The Tribunal has found that there were 28 passengers
inside the bus on the basis of ticket issued, hence this possibility
could also not be denied that more passengers were travelling in
the bus as it was overcrowded than the desired seats, hence no
question arises for the deceased to have travelled on the roof of
the bus.
It does not appear from the written statement of the
appellants that they had taken the specific plea that the deceased
was not a bonafide passenger. The deceased could not be said to
be a valid passenger merely because he was not sitting inside the
bus, therefore, the finding of the Tribunal to the effect that the
deceased ” at least tried to be passenger and as such this was
covered by the Insurance Company cannot be faulted with. He
would not have been the passenger,had he not been travelling in
the bus as is evident from the dictionary meaning of the word ‘
passenger.’ The appellant’s counsel has failed to establish that
the ticket was not produced by the deceased as such he could not
be said to be a bonafide passenger merely because he was
travelling on the roof of the bus or it can not construe as bar to
close him with the rights of a valid passenger. The factum of
travelling of the deceased by the bus is not denied by the
Insurance Company but the claim of the defendants is completely
being denied by the appellant Insurance only on the ground that
he was travelling on the roof of the bus. The Apex Court in
Amalendu Sahoo versus Oriental Insurance Co. Ltd.,ALR
2010(79) page-749 has held that Insurance Company cannot
repudiate the claim intoto even if any term of policy are violated.
In this view of the law settled by the Apex Court even if the
deceased was not travelling in the bus, it cannot be construed that
the terms and conditions of the Insurance policy has been
violated, which has not been placed before the Court to establish
that the travelling on the roof of the vehicle by a passenger is fatal
to his claim.
The deceased was travelling on the roof of the bus, hence
he was a valid passenger. The question of bonafide passenger
was not raised and even otherwise it could not be proved that he
was not holding a valid ticket.
For all the reasons stated above, the appeal is dismissed.
Respondent no.1 is reported to be dead by the learned counsel
for the parties but her exact date of death has not been given,
hence in the circumstances, the compensation amounting to Rs.
90,000/-awarded by the Tribunal be paid to the legal heirs and
representatives of respondent no.1 now respondent nos. 2 to 4.
Dated 3.7.2010
CPP/-