Back
1994 Supreme(HP) 215
High Court Of Himachal Pradesh
BHAWATJI SINGH,S.L.PANTA
ORIENTAL INSURANCE COMPANY LTD. - Appellant
Versus
PONI DEVI - Respondent
F. A. O. Nos. 98, 99, 100, 101 of 1991, C. M. P. (M) Nos. 202, 204, 205, 206, 236, 263 of 1991 and F.A.O. Nos. 53 and 54 of 1993
Decided On : 12/28/1994
In F A.O. No. 98o/1991: For the appellant :Sh. A. K. Goel, Advocate, For the respondents No. 1 to 6:Sh Gopal Sharma, Advocate For the respondent No. 7:Shri K. D. Sood, Advocate. In F. A. O. No. 99 0/1991: For the appellant :Shri A. K. Goel, Advocate. For the respondent No. 1:Shri Gopal Sharma, Advocate. For the respondent No. 2:Shri K. D. Sood, Advocate. In F. A. O. No. 100 0/1991: For the appellant :Shri A. K. Goel, Advocate. For the respondent Nos. 1 and 2:Shri Dhararavir Sharma vice Sh. Duni Chand Sharma, Advocate, For the respondent No. 3:Shri K. D. Sood, Advocate. In F. A. O. No. 101 of 1991: For the appellant :Shri A. K, Goel, Advocate. For the respondent No. 1:Shri Gopal Sharma, Advocate. For the respondent No. 2:Shri K. D. Sood, Advocate In C. M. P. (M) No. 202 of 1991:For the petitioner:Shri A. K. Goel, Advocate. For the respondent No 1:Sh. Dharamvir Sharma vice Shri Duni Chand Sharma, Advocate. For the respondent No. 2:Shri K. D. Sood, Advocate In C. M. P. (M) No. 204 of 1991:For the petitioner:Sh. A K. Goel, Advocate. For the respondent No. 1:Shri Gopal Sharma, Advocate. For the respondent No. 2:Shri K. D Sood, Advocate. In C. M. P. (M) No. 205 of 1991:For the petitioner:Shri A K, Goel, Advocate. For the respondent No. 1:Shri Gopal Sharma, Advocate. For the respondent No, 2:Sh. K. D. Sood, Advocate, In C. M. P.(M) No. 206 o/1991:For the petitioner:Shri A. K. Goel, Advocate. For the respondent No. 1:Shri Gopal Sharma, Advocate. For the respondent No. 2: :Shri K. D. Sood, Advocate. In C. M. P. (M) No. 2, 6 of 1991 ; For the petitioner:Shri A. K. Goel, Advocate. For the respondent No. I: :Shri Dharamvir Sharma vice Shri Duni Chand Sharma, Advocate, For the respondent No. 2:Shri K, D. Sood, Advocate. In C. M. P. (M) No. 263 of 1991:For the petitioner:Shri A. K. Goel, Advocate. For the respondent No. 1:Shri Gopal Sharma, Advocate. For the respondent No. 2: :Shri K. D. Sood, Advocate. In F. A. O. No. 53 of 1993: For the appellant :Shri A. K, Goel, Advocate. For the respondent No. 1:Sh, S. S. Kanwar, Senior Advocate with Ms Maninder Sodhi, Advocate. For the respondent No. 6:Shri K. D. Sood, Advocate. In F. A. O. No. 54 of 1993: For the appellant :Shri A. K. Goel, Advocate. For the respondent No. 3:Shri K D. Sood, Advocate. For the respondent No. 4:Shri Vishal Panwar, Advocate.
The insurance company is liable to pay compensation for injuries and deaths caused by an accident involving its insured vehicle, even if the passengers were gratuitous, unless it can prove that the driver had permission from the owner to allow them to board the vehicle.
Headnote:
MOTOR VEHICLE ACCIDENT - LIABILITY OF INSURANCE COMPANY - GRATUITY PASSENGERS - INSURANCE POLICY - ROUTE PERMIT - DRIVER'S CONSENT - ONUS OF PROOF - INTERPRETATION OF INSURANCE POLICY - PAYMENT OF COMPENSATION.
Fact of the Case:
A truck carrying passengers met with an accident resulting in injuries and deaths. The insurance company denied liability on the grounds that the passengers were gratuitous and not covered by the insurance policy or route permit. The claimants asserted that they were laborers engaged in loading and unloading goods during the journey and paid double charges for travel.
Finding of the Court:
The Motor Accident Claims Tribunal found that the insurance company failed to prove that the passengers were gratuitous and that the driver had permission from the owner to allow them to board the vehicle. The Tribunal also noted that the insurance policy permitted two drivers, one cleaner, and six laborers to travel in the vehicle, but the company did not provide evidence to establish who were laborers and who were passengers.
Issues: 1. Whether the insurance company is liable to pay compensation when the passengers were gratuitous and not covered by the insurance policy or route permit? 2. Whether the onus of proving that the passengers were gratuitous lies with the insurance company? 3. Whether the driver had the consent of the owner to take the passengers in the vehicle?
Ratio Decidendi: 1. The insurance company is liable to pay compensation even if the passengers were gratuitous unless it can prove that the driver had permission from the owner to allow them to board the vehicle. 2. The onus of proving that the passengers were gratuitous lies with the insurance company. 3. The insurance company failed to prove that the driver had the consent of the owner to take the passengers in the vehicle.
Final Decision: The court dismissed the insurance company's appeals and upheld the Tribunal's findings that the company was liable to pay compensation to the claimants.
Bhawani Singh, J.— We propose to decide all these cases (F. A. O. No. 98/91, Oriental Insurance Company Limited v. Smt Puni Devi and others, F. A. O. No. 99/91, Oriental Insurance Company Limited v. Shri Chigha Ram and others, F. A O. No. 100/91, Oriental Insurance Company Limited v. Shri Daulat Ram and others, F. A. O. No. 101/91, Oriental Insurance Company Limited v. Shri Roop Grand and others, C. M. P. (M) No. 202 of 1991, Oriental Insurance Company Limited v. Shri Ravi and others, CM.P. (M) No. 204 of 1991, Oriental Insurance Company Limited v. Shri Pirthi Chand and others, CMP, (M) No 205 of 1991, Oriental Insurance Company Limited v. Shri Chunku Ram and others, C. M. P (M) No. 206 of 1991, Oriental Insurance Company Limited v. Shri Rattan Chand and others, CM P. (M) No. 236 of 1991, Oriental Insurance Company Limited v, Shri Daulat Ram and others, C M. P. (M) No 263 of 1991, Oriental insurance Company Limited v. Shri Saran Dass and others, F. A. CX No. 53 of 1991, Oriental Insurance Company Limited v. Smt. Achhari Devi and others and F, A. O. No. 54 of 1993, Oriental Insurance Company Limited v, Smt. Achhari Devi and others\ by a common judgment since they arise out of the same accident, though there are two different awards dated 14-3 1991 and 3-12-1992.
2. Claimants Prithi Chand, Rattan Chand, Chunku Ram, Loharu Ram, Chiga Ram, Saran Dass, Roop Chand, Daulat Ram, Ravi, Sunnu Ram and Achhari Devi travelled by truck No HIK-5082 on the night inter vening 2/3rd October, 1990 from Bhunter to different places in Joginder- nagar and Kangra This truck was going from Kullu to Kangra and driver Ishwar Dass was driving it, It was owned by M/s. Himachal Flour Mills, Kangra, and was insured with Oriental General Insurance Company limited. When it reached at Village Gawali, near Jogindernagar, it rolled down 30 metres below the road. In this accident, Loharu Ram, Ghili Devi and Sunnu Ram died instantaneously while others sustained injuries. Therefore, claims have been preferred either by the injured for themselves or by the legal representatives of the deceased for the deaths for different amounts.
3. The case of the claimants is that driver Ishwar Dass was driving the truck rashly and negligently. He did not pay any attention to their request for driving it properly. They also say that they were travelling by this truck against payment of double travelling charges. It has also been pleaded by some of the claimants that the travelling in the truck was as labourers and they were paid wages for doing labour work on the way.
4. These claim petitions have been opposed by the respondents The Oriental General Insurance Co. Ltd, has contended that the vehicle was being driven by an unlicensed driver carrying the passengers gratuitously and, therefore, it was not liable to pay compensation in these cases. The vehicle was being plied without route permit and fitness certificate Finally, it is also the case of the Company that the injuries stated by the injured are not so serious as have been pleaded in the claim petitions, therefore, claim for expenditure for treatment is exaggerated Other respondents have stated that the accident is not attributable to the rash and negligent driving of driver Ishwar Dass. On account of Anti-Reservation strike, there was strike by the Government Transport. The road traffic was blocked at Bhunter and a few persons forcibly got into the. vehicle after hurling threats When the vehicle reached at village Gawali at 12.30 a m,, after negotiating a curve, it was found that the road was blocked by boulders, used for the blockade of the road. As a result of the same, the truck jumped on the stones and fell down on the left side of the road where the road was damaged. The damaged side of the road could not be seen with the result that the accident took place.
5. The Motor Accident Claims Tribunal framed the following issues in this case: "1. Whether Respondent No. 2 Ishwar Dass was driving the truck rashly and neg
