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2022 Supreme(All) 432
IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, J.
M/s United India Insurance Company Ltd. – Appellant
Versus
Smt. Jai Lakshmi Singh And Others – Respondent
First Appeal From Order No. - 1182 of 1992
Decided on : 08-04-2022
Advocate Appeared:
For the Appellant : : K.S.Amist
For the Respondent: Vijay Kumar Bist, G.K. Singh, N.I. Jafri, R.K. Pandey, S.D.Ojha, S.K. Mishra, S.K. Shukla, S.N. Srivastava, adv.
Point of Law: Breach of policy would fall within the scope of Section 147 of Act, 1988 though not a breach under Section 149 of 1988 Act.
Headnote:
Motor Vehicle Act - Section 147 - Motor Accident – Claim Of Compensation – Accident Occurred Due To Negligence Of Driver - On 7.10.1990, Prem Narain Singh was going driving Hero Puch from Chargawan towards Gorakhpur and at about 11:20 a.m. when he reached near M/s Gautam Bhterprises at Khajanchi Chauraha, Police Station Shahpur in Gorakhpur to Bhatahat Road, a Jeep bearing UPH-2756, coming from Dharamshala City, Gorakhpur side to Maharajganj driven in a very rash and negligent manner, dashed against the moped causing grievous and fatal injuries to Prem Narain Singh who later on died in Hospital on same day – Whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all. deceased who was traveling in the goods vehicle can be termed as a gratuitous passenger and not covered under the insurance policy and, therefore, Insurance Company is exonerated, but directed to pay the amount of compensation to claimants with the right to recover the same from the insured.- Para 15.
Finding of the Court :
Deceased who was traveling in the goods vehicle can be termed as a gratuitous passenger and not covered under insurance policy and, therefore, Insurance Company is exonerated, but directed to pay the amount of compensation to claimants with right to recover the same from the insured - Similar view has been taken in case of Lal Singh Marabi Vs. National Insurance Company Limited, 2017(5) SCC 82 - As far as compensation is concerned, it cannot be said that the compensation awarded is on higher side - There is no cross objection filed by the claimant - Compensation awarded is without grant of future loss of income and the amount under non pecuniary damages on lower side and, therefore, also no interference is called for. There is a breach of policy, a duty is cast on the subsequent purchaser to convey to the insurance company any change in the registration of the vehicle had the owner who subsequently bought had not converted the same, this stand taken by the insurance company could have been rejected but the fact that the Tribunal did not consider this aspect from this angle vitiates its direction.
Result: Appeal is partly allowed.
JUDGMENT :
1. Heard Sri K.S. Amist, learned counsel for the appellant, Sri S.D. Ojha, learned counsel for claimants-respondent and perused the judgment and order impugned.
2. This appeal, at the behest of appellant-M/S United India Insurance Company Ltd., challenges the award dated 19.8.1992 passed by Motor Accident Claims Tribunal/Vth Additional District Judge, Gorakhpur (hereinafter referred to as 'Tribunal') in M.A.C.No.35 of 1991 awarding a sum of Rs.3,60,000/-with interest at the rate of 12% as compensation.
3. Brief facts as culled out from the record are that on 7.10.1990, Prem Narain Singh was going driving Hero Puch from Chargawan towards Gorakhpur and at about 11:20 a.m. when he reached near M/s Gautam Bhterprises at Khajanchi Chauraha, Police Station Shahpur in Gorakhpur to Bhatahat Road, a Jeep bearing UPH-2756, coming from Dharamshala City, Gorakhpur side to Maharajganj driven in a very rash and negligent manner, dashed against the moped causing grievous and fatal injuries to Prem Narain Singh who later on died in the Hospital on the same day.
4. Learned counsel for the appellant – insurance company submits that Kali Charan-respondent no. 9 who was the owner of the Jeep UPH-2756 at the time of the accident and it was being driven by the Rameshwar Prasad-respondent no. 10. Jeep UPH-2756 was insured with the appellant – insurance company at the time of accident. Kali Charan-respondent no. 9 filed his written statement stated that accident took place on account of the negligence of the deceased himself as he was carrying a gas cylinder on his motor cycle and was driving it at a high speed and the motor cycle became uncontrolled, causing accident. He further states that the jeep was insured from 5.3.1990 to 4.3.1991 for the purpose of private use only in the name of Mohd. Aziz as owner and it appeared that Mohammad Aziz later on sold the jeep UPH-2756 to Kali Charan who got the registration of jeep transferred for the purpose of using it as taxi but he did not get the insurance policy transferred and the insurance of the jeep remained for the purpose of private use only,therefore, the appellant was not liable to pay any compensation. He further submits that the compensation awarded by the Tribunal is very high and exorbitant and the Tribunal has not followed the correct principles of law in calculating the amount of the award. The Tribunal has illegally not allowed any deduction for lump sum payment, atleast 30% deduction should be allowed. He further submits that the award granted by the Tribunal is illegal and against the evidence on record. The Jeep being UPH-2756 was being driven in violation of the terms and conditions of the insurance policy and the appellant took such specific plea and the appellant was not liable to pay any amount of compensation.
Dispute as to negligence :
5. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.
Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.
6. The principle of contributory negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.
7. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
“16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do somethin
