HIGH COURT OF CHATTISGARH AT BILASPUR
Misc. Appeal No.829 of 1998
1. Ramchandra Yadav
2. Raj Kishore Yadav
3. Awdhesh Yadav
...Petitioners
Versus
1. Mastan Singh
2. Divisional Manager
...Respondents
! Shri Rakesh Anthony, counsel for the appellants.
^ Shri Ashish Surana, counsel for respondent No.1.
Shri Vinay Harit, Sr. Advocate with
Shri S.K. Mishra, Advocate for respondent No.2.
Division Bench: Hon'ble Shri Dhirendra Mishra &
Hon'ble Shri Sunil Kumar Sinha, JJ.
Dated:07/11/2008
: Judgement
(Appeal under Section 173 of the Motor Vehicles Act)
Present:
O R D E R
(Passed on 7th November, 2008)
The following order of the Court was passed by
Dhirendra Mishra, J.
1. This is owner’s appeal against the award dated 23rd April
1998 passed in claim case No.74/91 whereby learned Additional
Motor Accident Claims Tribunal, Korba allowing the claim
petition of respondents No.1 awarded compensation of
Rs.1,60,000/- in favour of the claimant/respondent and held
the owner of the vehicle liable for payment of compensation by
exonerating the Insurance Company from its liability to
satisfy compensation amount.
2. The appellants are legal representatives of original
appellant Ram Deo Yadav, who was registered owner of the Jeep
bearing registration No. U.M.B./5253.
3. Briefly stated the case of the claimant before the Claims
Tribunal was that on 8-6-1991 he was going with his wife and
others in the jeep from Champa to Korba. The jeep was owned
by Ram Deo Yadav and driven by Ram Gopal. The driver of the
jeep, rashly and negligently driving the jeep, dashed it
against a culvert, as a result he sustained grievous injuries.
He was admitted in the 100 bedded Hospital, Korba from where
he was referred for further treatment to Bhilai Steel Plant
Hospital. Ultimately, his left leg was amputed. Before the
accident, he was working as a contractor and was earning
Rs.5,000/- per month from that profession. However, because
of the disablement he is not able to do his business and he
has lost his earning capacity. The vehicle was insured for
the relevant period with Non-applicant No.3. The claimant
claimed compensation of Rs.24,98,000/- under various heads.
4. Respondents No.1 and 2 in their reply stated that the
claimants are acquainted with the appellant as they are their
neighbours. They were traveling in the jeep as gratuitous
passenger and no fare was charged from them. They denied that
the jeep was driven rashly and negligently. It was pleaded
that the accident occurred due to mechanical failure of Tie
Rod. The claimant sustained simple injuries and his leg was
amputed because of his own negligence, as he did not undergo
proper treatment. The claimant has made inflated claims, as
he is still capable of doing his business. The Insurance
Company in its reply denied allegations of the claimant and
further contended that claimant was traveling in the vehicle
as passenger after paying fare and, therefore, as per
condition of the insurance policy, there is breach of policy
condition, as private vehicle was used for hire and,
therefore, Insurance Company is not liable for payment of any
compensation.
5. During trial, claimant examined himself as AW-1, his wife
Kuldip Kaur as AW-2, Gurudev Singh as AW-3 whereas, Non-
applicant No.1 Ram Gopal (driver) has been examined as NAW-1.
Non-applicant No.3 did not examine any witness.
6. The Tribunal after careful examination of the evidence
led by the respective parties held that the accident occurred
due to rash and negligent driving of the jeep by Non-applicant
No.1; the claimant sustained grievous injuries due to accident
resulting in permanent disability; the claimant is entitled
for compensation of Rs.1,60,000/- with interest @ 12% per
annum from the date of award. Non-applicant No.3 is not
liable for payment of compensation amount as Non-applicants
No.1 and 2 have failed to prove that the vehicle was insured
with Non-applicant No.3 for the relevant period.
7. Shri Rakesh Anthoni, learned counsel for the appellants
contended that he had submitted original insurance policy
during trial. However, original records of the claim case
were destroyed due to fire in the record room. The appellant
had submitted copy of the original policy, but learned Claims
Tribunal refused to accept the same. He has filed copy of the
insurance policy along with memo of appeal. From perusal of
the insurance policy, it would be evident that vehicle was
insured with Non-applicant No.3 for the relevant period. He
further argued that the amount of compensation awarded to the
respondent/claimant is highly excessive.
8. Shri Ashish Surana, learned counsel for respondent No.1,
contended that left leg of the claimant was required to be
amputed as a result of the accident. Because of the
amputation, the claimant suffered 100% permanent disability
and there is total loss of earning capacity. The Tribunal
after due consideration of the evidence available on record
has rightly assessed compensation which does not call for any
interference.
9. Shri Vinay Harit, learned Senior Counsel with Shri S.K.
Mishra, counsel for respondent No.2, fairly submitted that the
vehicle was insured with Non-applicant No.3 for the relevant
period and the finding of the Tribunal in this regard is
erroneous. However, he contended that the vehicle in question
was insured as a private vehicle. From perusal of the policy
filed by the appellant along with memo of appeal, it would be
evident that the appellant did not pay any extra premium for
covering risk of any gratuitous passenger. The vehicle was
used for hire, as the claimant pleaded in the claim petition
that he was traveling in the jeep after paying fare.
10. Reliance is placed in the matter of United India
Insurance Company Ltd., Shimla V. Tilak Singh & Ors1.
11. We have heard learned counsel for the parties and have
perused the impugned award and evidence available on record.
12. The Tribunal on close scrutiny of the evidence available
on record and relying upon evidence of claimant Mastan Singh
and other witnesses namely, Kuldip Kaur and Gurudeo Singh has
held that the accident occurred due to rash and negligent
driving of the driver. The evidence of the driver that the
accident occurred due to mechanical failure has been
disbelieved.
13. It has been further held that the claimant suffered
permanent disability as a result of grievous injuries
sustained in the aforesaid accident. The appellants have
failed to prove that the vehicle was insured with Non-
applicant No.3 for the relevant period and, therefore,
Insurance Company is not liable for satisfying compensation.
14. Rejecting the claim of the claimant that he was earning
Rs.5,000/- per month, a sum of Rs.50,000/- was awarded towards
medicine and hospital expenses incurred by the claimant after
the accident. Apart from the above amount, a lump sum amount
of Rs.1 lakh has been awarded to the claimant towards loss of
earning capacity due to permanent disability suffered in the
accident. Apart from the above sum, a sum of Rs.5,000/-
towards expenditure in transportation and Rs.5,000/- has been
awarded as special diet. Hence, total sum of Rs.1,60,000/-
has been awarded as compensation to the claimant. Amputation
of leg of the claimant as a result of the injuries sustained
by him in the accident has not been disputed by the claimant.
At the time of his examination the Tribunal has observed in
paragraph-3 that the claimant was able to walk with the help
of artificial limb, as his left leg was amputed from 4″ above
knee level. Looking to the permanent disability of the
claimant and also considering his age, lump sum amount of Rs.1
lakh cannot be termed to be too excessive towards loss of
earning capacity of the claimant due to amputation of leg.
Similarly, award of Rs.50,000/- as expense towards treatment
is also modest and proper keeping in view the fact that the
claimant has submitted vouchers (Ex.-P/3 to Ex.-P/15) for a
sum of Rs.36,585.89/-. Similarly, amount of Rs.5,000/- each
towards expenses of transportation and special diet during
treatment is also proper and does not call for interference.
15. On due consideration of the evidence of the claimant and
his two witnesses namely, Kuldip Kaur and Gurudeo Singh, we
are of the opinion that the Tribunal has rightly disbelieved
the defence of the appellant and evidence of driver Ram Gopal
that the accident occurred because of mechanical failure due
to breaking of Tie Rod, as the inspection report of offending
vehicle has neither been produced nor proved during trial.
16. The only question for consideration in this appeal is –
whether the Tribunal was justified in exonerating the
Insurance Company from liability of satisfying compensation
awarded to the claimant and fixing liability on the appellant,
particularly, in the admitted position that offending vehicle
was insured with respondent Insurance Company at the relevant
time?
17. Our attention was drawn by Shri Vinay Harit, learned
senior counsel for Insurance Company that the claimants have
themselves averred in their claim petition that they were
traveling in the said jeep after paying fare, though claimant
has denied the above fact during his examination before the
Court. But claimants cannot be permitted to retract their
stand which they have taken in their petition. Even
otherwise, the appellant has not paid any extra premium for
covering risk of passengers traveling in the jeep and in the
absence of any extra premium for the gratuitous passengers
traveling in a private jeep, the Insurance Company would not
be liable for compensation towards any injury or death of
gratuitous passenger.
18. In the matter of United India Insurance Company Ltd.
(Supra), the Hon’ble Supreme Court while dealing with question
as to whether gratuitous passenger would be covered by
statutory insurance policy and relying upon the judgment in
the matter of New India Assurance Company V. Asha Rani and
others2 in paragraphs 20 and 21 held thus:-
“20. The view expressed in Satpal Singh’s
case (supra) however, has been specifically
overruled in the subsequent judgment of a
Bench of three judges in New India Assurance
Company v. Asha Rani and others (2003) 2 SCC
223. In the case the discussion arose in
connection with carrying passengers in a
goods vehicle. This Court after referring to
the terms of Section 147 of the 1988 Act, as
contrasted with Section 95 of the 1939 Act,
held that the judgment in Satpal Singh’s case
(supra) had been incorrectly decided and that
the insurer will not be liable to pay
compensation. In the concurring judgment of
Sinha, J., after contrasting the language
used in the 1939 Act with that of the 1988
Act, it has been observed (vide paras 25 and
27):
“25. Section 147 of 1988 Act, inter
alia, prescribes compulsory coverage against
the death of or bodily injury to any
passenger of “public service vehicle”.
Proviso appended thereto categorically states
that compulsory coverage in respect of
drivers and conductors of public service
vehicle and employees carried in a goods
vehicle would be limited to the liability
under the Workmen’s Compensation Act. It does
not speak of any passenger in a `good
carriage’.
27. Furthermore, sub-clauses (i) of
Clause (b) of sub-section (1) of Section 147
speaks of liability which may be incurred by
the owner of a vehicle in respect of death of
or bodily injury to any person or damage to
any property of a third party caused by or
arising out of the use of the vehicle in a
public place, whereas sub-clause (ii) thereof
deals with liability which may be incurred by
the owner of a vehicle against the death of
or bodily injury to any passenger of a public
service vehicle caused by or arising out of
the use of the vehicle in a public place.”
21. In our view, although the observations
made in Asha Rani’s case (supra) were in
connection with carrying passengers in a
goods vehicle, the same would apply with
equal force to gratuitous passengers in any
other vehicle also. Thus, we must uphold the
contention of the appellant -insurance
company that it owed no liability towards the
injuries suffered by the deceased Rajinder
Singh who was a pillion rider, as the
insurance policy was a statutory policy, and
hence it did not cover the risk of death of
or bodily injury to gratuitous passengers.”
19. Since in the instant matter the insurance policy was
statutory policy and the appellant did not pay any extra
premium to cover risk of any passenger, therefore, the policy
did not cover risk of death or bodily injury to gratuitous
passengers.
20. For the aforesaid reasons, we are of the opinion that
there is no substance in the instant appeal, the same deserves
to be dismissed and is accordingly dismissed.
J U D G E