{"id":77749,"date":"2010-07-03T00:00:00","date_gmt":"2010-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/new-india-insusrance-co-ltd-vs-hasina-begum-others-on-3-july-2010"},"modified":"2018-02-28T15:26:34","modified_gmt":"2018-02-28T09:56:34","slug":"new-india-insusrance-co-ltd-vs-hasina-begum-others-on-3-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/new-india-insusrance-co-ltd-vs-hasina-begum-others-on-3-july-2010","title":{"rendered":"New India Insusrance Co. Ltd. vs Hasina Begum & Others on 3 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
New India Insusrance Co. Ltd. vs Hasina Begum & Others on 3 July, 2010<\/div>\n
                                                         Court no. 1\n          First Appeal From Order No. 144 of 1996\n\nNew India Assurance Co. Ltd. versus Hasina Begum and others\n\nHon'ble Rakesh Tiwari, J.\n\n     Heard learned counsel for the parties and perused the\nrecord.\n     This First Appeal From Order has been filed challenging the\nvalidity and correctness of the judgment and decree dated\n16.11.1995 passed by the Motor Accident Claims Tribunal\/VI\nAdditional District Judge, Fatehpur in Claim Petition No. 01 of\n1980 whereby the Claims Tribunal awarded compensation of\nRs.90,000\/- with interest at the rate of 12% per annum with effect\nfrom 11.7.1995 in the following terms:-\n                    ORDER\n<\/pre>\n
              ” The claim petition on behalf of only Smt. Haseena
\n          Begum claimant no.1 is decreed for compensation of
\n          Rs.90,000\/- ( Rs.Ninety thousand only) against the
\n          opposite parties jointly and severally. Interest at the rate
\n          of 12% per annum from 11.7.1995 shall also be payable
\n          on the said amount by the opposite parties jointly and
\n          severally. Since the claimant is an illiterate widow, the
\n          amount as awarded shall be paid through FDR in any
\n          Nationalized Bank and the interest accrued thereon
\n          shall be payable from time to time to the claimant Smt.
\n          Haseena Begum. In case of urgency, the claimant Smt.
\n          Haseena Begum may withdraw the required amount
\n          showing genuine act.”\n<\/p>\n
     It appears from the record that the deceased Irrafil        was
\ntravelling from Fetahpur to Ghazipur on the left side of the roof
\n of bus no. UPW 2830,which met with an accident on 22.9.89 on
\naccount of dashing of the vehicle coming from opposite side
\nagainst a Jamun tree. The deceased at about 12.15 on that fatal
\nday had sustained injuries to which he succumbed in the hospital.\n<\/p>\n
       The claim petition was filed by his widow, daughter and
\nsisters claiming compensation of Rs.3,12,000\/- on the ground
\nthat the deceased was an expert tailor and was working in a
\nTailoring shop at Kanpur at the time of the accident.\n<\/p>\n
     The appellant Insurance Company not only denied the
\nfactum of accident but also claimed that the vehicle in question
\nwas being driven against the terms and conditions of Insurance
\npolicy.\n<\/p>\n
     Learned counsel for the appellant submits that the
\nInsurance Company is not liable to pay any compensation
\nwhatsoever to claimant no.1, Haseena Begum on account of the
\nreason that the deceased was not a passenger of the bus as he
\nwas travelling on the top of the roof of the bus. He stated that the
\nTribunal has given positive finding to the effect that the deceased
\nmet with the accident in which the negligence of the deceased
\nwas contributed as the accident was caused due to violation of
\nterms and conditions of the Insurance policy by the onwer\/driver
\nand conductor of the vehicle, the appellant Insurance Company
\ncannot be held to be liable for payment of the compensation in
\nrespect of the deceased.\n<\/p>\n
     The findings recorded by the Claims Tribunal have been
\nassailed on the ground that it is a case of contributory negligence
\nand also that the deceased was sitting on the roof of the bus as
\nsuch it can not be said that he was a valid passenger. Therefore,
\nthe dependents of the deceased        are not entitled to receive
\ncompensation amounting to Rs.80,000\/- as well as expenses of
\nRs.10,000\/- on other accounts.\n<\/p>\n
       According to him, no risk is covered by the Insurance
\nCompany for a person sitting on the roof of the bus as he is not a
\nvalid passenger and compensation, if any, was liable to be paid
\nby the owner, driver and conductor of the bus.\n<\/p>\n
      He has further argued that the Claims Tribunal has given a
\npositive   finding    of   contributory   negligence   as   such   the
\ncompensation awarded is liable to be set aside.\n<\/p>\n
      At the time admission of the appeal following interim order
\nwas passed on 8.3.1996.\n<\/p>\n
                     ” Seen the office objection. The learned counsel
\n              agrees to file type copy of the judgment.\n<\/p><\/blockquote>\n
                      Heard learned counsel for the appellant. The
\n              liability by the Insurance Company has been
\n              challenged in this appeal. There has been a deposit
\n              of Rs. 25,000\/- with the Registrar of this Court as
\n              required under Section 173 of the Motor Vehicles
\n              Act.\n<\/p><\/blockquote>\n
                     The appeal stands admitted. The sum of
\n              Rs.25,000\/- deposited here remitted down only to
\n              the concerned Tribunal. The said amount may be
\n              withdrawn by the claimants without any security. For
\n              the rest of the awarded sum there shall be a stay on
\n              realization subject to security to be given by the
\n              present      appellant   before the Tribunal      to his
\n              satisfaction.\n<\/p><\/blockquote>\n
                     The respondents be noticed. The lower court
\n              record be called for. Steps for notice be taken within
\n              a week.\n<\/p><\/blockquote>\n
                      The matter be listed after two months.”<\/p><\/blockquote>\n
      It appears from the order sheet dated 13.10.2009 that the
\nlearned counsel for the appellant was granted ten days’ time for
\n moving substitution application in respect of respondent no.1 who
\nis said to have died in the year 2002. The order dated 13.10.2009
\nis as under:-\n<\/p>\n
                     ” On the request of learned counsel for the
\n           appellant 10 days time is granted to move substitution
\n           application of respondent no.1 who is said to have died
\n           in the year 2002. If the steps are not taken for
\n           substitution, then the appeal may be dismissed against
\n           the deceased respondent under Chapter 12 rule 4 of
\n           Allahabad High Court Rules.”<\/p><\/blockquote>\n
      When the case was taken up today learned counsel for the
\nappellant on the basis of affidavit filed in this case, submits that
\ninspite of best efforts the appellant could not ascertain the exact
\ndate of death of respondent no.1 and the local counsel engaged
\nby the appellant in civil Court at Fatehpur also could not ascertain
\nthe exact date of death from any documents. However, the legal
\nheirs and representatives of deceased respondent no.1 have
\nbeen arrayed as opposite party nos. 2 and 4 to the claim petition
\nwho are already on record.\n<\/p>\n
      I have considered the contention of learned counsel for the
\nappellant that the liability of the Insurance Company can only be
\ndetermined in case Insurance policy and driving licence are
\nproved to be valid and the driving of the vehicle is also held to be
\nvalid in accordance with the terms and conditions of the Insurance
\npolicy.\n<\/p>\n
      The Motor Accident Claims Tribunal framed            following
\nissues on the basis of the pleadings of the parties on 11.7.1995.\n<\/p>\n
          1.    Whether the accident was caused by rash and
\n          negligent driving of bus no. UPW 2830 ? If so. Its effect ?\n<\/p>\n
            2. Whether the accident occurred due to the negligence
\n           of the deceased himself as contended in para 3 of the
\n           written statement by opposite party no.3 ?\n<\/p>\n
           3. Whether the bus in question was insured at the time of
\n           accident and if so, whether it was being driven in
\n           accordance with the terms and conditions of the
\n           Insurance policy ?\n<\/p>\n
           4. Whether the driver of the bus was holding valid driving
\n           licence at the time of accident ?. If so its effect ?\n<\/p>\n
           5. To what amount of compensation if any, are the
\n           claimants entitled and from which of the opposite
\n           parties ?\n<\/p>\n
     Issue nos. 1 and 2 were decided by the Claims Tribunal
\nholding that accident took place on account of joint negligence of
\nthe driver, conductor and deceased.\n<\/p>\n
     In so far as issue no.3 is concerned, it has been held by the
\nTribunal that from the papers filed by the Insurance Company it
\nwas evident that the bus was duly insured and the Insurance
\npolicy was valid from 10.3.89 to 9.3.89.\n<\/p>\n
     Now the question regarding payment of compensation is to
\nbe decided in the light of the facts that the mother of the deceased
\nis admittedly gone to her heavenly abode during the pendency of
\nappeal and in the facts and circumstance to whom and in what
\nratio should the compensation be now paid, if the appeal does not
\nsucceed.\n<\/p>\n
     The Tribunal also considered the question as to whether the
\nsisters were impleaded by the mother of the deceased as
\nclaimant nos. 2 to 4 could be awarded compensation relying upon
\nthe case of Punjab State through Secretary versus Onkarnath,
\n1990, A.C.J. page-170, Regal Sports versus Mohd. Siddique
\nand others, 1994 A.C.J. page-294 and Ansari Begum and
\n another versus Har Nam Singh and others, 1995, A.C.J.page-
\n220    and held that only the claimant no.1, the mother of the
\ndeceased was entitled to receive the amount of compensation
\nand compensation had not been awarded in the circumstances to
\nthe sisters of the deceased. The Tribunal awarded compensation
\nin favour of claimant no.1 only amounting to Rs. 90,000\/- against
\nthe opposite parties jointly and severally along with interest at the
\nrate of 12% per annum from 11.7.95 as stated above.\n<\/p>\n
       The Claims Tribunal in the judgment has categorically held
\nthat though it has come on record that there were 28 passengers
\ninside the bus but this statement could not be proved by filling of
\nthe counterfoil   of the tickets issued, hence it is very doubtful
\nwhether the deceased was not a bonafide passenger. The
\nquestion whether the deceased was the passenger of the bus or
\nnot. The word ‘passenger’ has been defined in Legal Glossary
\npublished by the Government of India- ” as one, who travels in
\nsome vessel or vehicle; a traveler by any public vehicles entered
\nby fare.” The deceased was sitting on left side of the roof of the
\nbus and was a passenger. The Claims Tribunal has therefore,
\nrightly come to the conclusion that though the deceased was
\nnegligent yet he can be said to be a passenger.\n<\/p>\n
       Learned counsel for the appellant is unable to show
\nanything from record that any term and conditions of the
\nInsurance policy has been violated in any manner confronted with
\nthe meaning of the word ‘passenger’. He has not been able to
\nshow that a person travelling on roof of the vehicle cannot be said
\nto be a passenger ‘ or a bonafide passenger.\n<\/p>\n
      The law cannot be approved to all types of varied situations in
\na straight jacket formula. It has to give meaning according to
\ncircumstances, place and conditions at the relevant time.\n<\/p>\n
        In India generally there is dearth of transport in proportion
\nto travellers or passengers. In villages people has developed a
\nconcept of purchasing old chassis of some other old discarded
\nvehicle and ply on the road and some persons use it as diesel
\nengine for irrigation of fields. In places where the buses are
\novercrowded with the passengers the people are also travelled on
\nthe roof of the bus. Similarly, it has been witnessed that some
\npassengers travel on the roof of the train. This is a daily routine
\nmatter and some of the passengers travel in the train by catching
\nthe rod fitted at the door of the compartment of the train. Many a
\ndeath are caused in this manner of travelling. This does not desist
\nthe people from travelling on the vehicle on which they are
\ntravelling. The Tribunal has found that there were 28 passengers
\ninside the bus on the basis of ticket issued, hence this possibility
\ncould also not be denied that more passengers were travelling in
\nthe bus as it was overcrowded than the desired seats, hence no
\nquestion arises for the deceased to have travelled on the roof of
\nthe bus.\n<\/p>\n
       It does not appear from the written statement of the
\nappellants that they had taken the specific plea that the deceased
\nwas not a bonafide passenger. The deceased could not be said to
\nbe a valid passenger merely because he was not sitting inside the
\nbus, therefore, the finding of the Tribunal to the effect that the
\ndeceased ” at least tried to be passenger and as such this was
\ncovered by the Insurance Company cannot be faulted with. He
\nwould not have been the passenger,had he not been travelling in
\nthe bus as is evident from the dictionary meaning of the word ‘
\npassenger.’ The appellant’s counsel has failed to establish that
\nthe ticket was not produced by the deceased as such he could not
\nbe said to be a bonafide passenger merely because he was
\ntravelling on the roof of the bus or it can not construe as bar to
\n close him with the rights of a valid passenger. The factum of
\ntravelling of the deceased by the bus is not denied by the
\nInsurance Company but the claim of the defendants is completely
\nbeing denied by the appellant Insurance only on the ground that
\nhe was travelling on the roof of the bus. The Apex Court in
\nAmalendu Sahoo versus Oriental Insurance Co. Ltd.,ALR
\n2010(79) page-749 has held that Insurance Company cannot
\nrepudiate the claim intoto even if any term of policy are violated.
\nIn this view of the law settled by the Apex Court even if the
\ndeceased was not travelling in the bus, it cannot be construed that
\nthe terms and conditions of the Insurance policy has been
\nviolated, which has not been placed before the Court to establish
\nthat the travelling on the roof of the vehicle by a passenger is fatal
\nto his claim.\n<\/p>\n
        The deceased was travelling on the roof of the bus, hence
\nhe was a valid passenger. The question of bonafide passenger
\nwas not raised and even otherwise it could not be proved that he
\nwas not holding a valid ticket.\n<\/p>\n
      For all the reasons stated above, the appeal is dismissed.
\nRespondent no.1 is reported to be dead by the learned counsel
\nfor the parties but her exact date of death has not been given,
\nhence in the circumstances, the compensation amounting to Rs.
\n90,000\/-awarded by the Tribunal be paid to the legal heirs and
\nrepresentatives of respondent no.1 now respondent nos. 2 to 4.
\nDated 3.7.2010
\nCPP\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court New India Insusrance Co. Ltd. vs Hasina Begum & Others on 3 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-77749","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nNew India Insusrance Co. Ltd. vs Hasina Begum & Others on 3 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/new-india-insusrance-co-ltd-vs-hasina-begum-others-on-3-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"New India Insusrance Co. 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