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Branch Manager, Bajaj Allianz General Insurance Company Limited, Chhattisgarh v/s Ansat Siya & Others


    M.A. (C) No. 696 of 2012

    Decided On, 17 July 2020

    At, High Court of Chhattisgarh

    By, THE HONOURABLE CHIEF JUSTICE MR. P.R. RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE PARTH PRATEEM SAHU

    For the Appellant: Abhishek Sinha, Advocate. For the Respondents: R2 & R3, J.K. Saxena, Advocate.



Judgment Text


P.R. Ramachandra Menon, C.J.,

1. The award passed by the Motor Accident Claims Tribunal, Jashpur (for short 'the Tribunal) mulcting the liability upon the Appellant/Insurer of the offending vehicle, granting compensation in respect of the death of a 'gratuitous passenger in a goods vehicle', placing reliance on an over ruled decision rendered by the Apex Court in New India Assurance Co. v. Satpal Singh & Others; {(2000) 1 SCC 237}, {overruled in New India Assurance Co. Ltd. v. Asha Rani & Others; (2003) 2 SCC 223}, is highlighted as the grievance in this appeal.

2. The deceased namely Ajay Ekka, aged about 23 years, was admittedly travelling by sitting on the side of the Driver of the transport vehicle i.e. Pickup Van bearing registration No. CG-14-A-3573 on 13.09.2009. When the vehicle reached the place of occurrence, the Driver lost control over the vehicle and it dashed against a tree, because of the rash and negligent driving, causing serious injuries leading to his death. This led to the claim petition preferred before the Tribunal seeking compensation under various heads.

3. It was the case of the Claimants, that the deceased was employed as an Electrician and was having a monthly income of Rs. 5000/-. The Owner and Driver of the offending vehicle filed a joint reply and denied the averments raised against them. The Appellant Insurance Company filed their version specifically contending that the Company was not liable to satisfy the claim in respect of a gratuitous passenger who was travelling in a goods vehicle. It was also contended that the Driver was not duly authorized to drive the Transport Vehicle at the relevant time and that he was only having a licence to drive a Light Motor Vehicle and that's all. In support of the contentions, the Appellant Company examined a Clerk from the Regional Transport Office at Raigarh and also an officer of the Company.

4. After completion of the Trial, the Tribunal arrived at a finding that the accident was only because of the negligence on the part of the Driver of the Pickup Van insured by the Appellant and proceeded to work out the compensation. After considering the various aspects, the Tribunal awarded a sum of Rs.1,27,500/- towards the loss of dependency. Granting a sum of Rs. 25,000/- towards the loss of love and affection and a sum of Rs. 5000/- towards funeral expenses, the total compensation was fixed as Rs. 1,57,500/-. It is asserted by the Appellant that even though various rulings rendered by the Apex Court on the point, in respect of liability of the Insurer as to the claim in respect of a gratuitous passenger in a goods vehicle were cited, it was simply ignored and the Tribunal, placing reliance on the over- ruled verdict passed by the Apex Court in Satpal Singh (supra), held that the policy having been admitted, the Insurer was liable to satisfy the same. It was accordingly, that the award was passed directing the compensation to be satisfied with interest at the rate specified therein, by the Appellant, which is put to challenge in this appeal.

5. Shri Abhishek Sinha, the learned counsel for the Appellant/ Company submits that the various decisions rendered by the Apex Court on the point have been noted in paragraph 21 of the Award, except the decision in Asha Rani (supra). While considering the specific issue as to the absence of coverage/liability by the Tribunal, reliance was placed on the over-ruled decision rendered by the Apex Court in Satpal Singh (supra) as noted in 'paragraph 27' and the liability was fixed accordingly, which is per se wrong, illegal and arbitrary in all respects.

6. Shri J.K.Saxena, the learned counsel appearing for the Respondents Driver and Owner submits that the contention of the Appellant/Insurance Company that the Driver was not authorized to drive a 'Transport Vehicle' but was having licence only to drive a 'Light Motor Vehicle', is not correct or sustainable. The learned counsel submits that the vehicle was having an unladen weight of less than 7500 KGs. As per the definition of the term 'light motor vehicle' under Section 2(21) of the Act, 1988 and the scope of authorization to drive a transport vehicle to be a valid driving licence was considered by the Apex Court in Mukund Dewangan v. Oriental Insurance Company Ltd.; {(2017) 14 SCC 663. The Apex Court held that, insofar as the LMV is concerned, it is open for any person to drive the said vehicle if he is having a licence to drive an LMV, without any separate authorization to drive a Transport Vehicle.

7. We are aware that the above decision was doubted by a subsequent Bench of the Apex Court in Bajaj Allianz General Insurance Company Limited v. Rambha Devi & Others; {(2019) 12 SCC 816}, observing that many vital provisions in the Act as well as in the Rules which denotes the necessity to have an authorization to drive a Transport Vehicle (especially having obtained training in driving for a stipulated time) were omitted to be brought to the notice of the Apex Court while rendering their decision in Mukund Dewangan (supra). However, the fact remains that the reference is still to be answered and in the said circumstance, the Apex Court itself, as per the decision in M.S.Bhati v. National Insurance Company Limited, {(2019) 12 SCC 248}, has sought to apply the law in Mukund Dewangan (supra) in the given context and the position continues.

8. The learned counsel for the Appellant/Insurance Company submits that, in view of the declaration by the Apex Court in Mukund Dewangan (supra) and the other relevant rulings, the said contention with reference to separate authorisation to drive a transport vehicle is not pressed. As such, we are not going into this aspect any further. The scope of consideration of merit in the appeal stands confined only to the eligibility of a person travelling as a 'gratuitous passenger' in a goods vehicle; to get the compensation.

9. The learned counsel for the Respondent 2 and 3 submits that, when the Insurance Company alleges violation of the terms of the policy, it is for them to establish the breach so as to get excluded from the liability, which has not been satisfied in the instant case. The crucial question, according to us, is not violation of the policy but the absence of coverage i.e. whether the policy issued does cover the risk of the deceased, who was travelling in the goods vehicle.

10. There is no dispute to the fact that the vehicle involved is a 'goods carriage' and the policy obtained is to cover the risk to the specified extent. We have gone through the policy schedule, a copy of which has been produced and marked as Exhibit NA 3-(2C). The schedule of premium is extracted below, to have a clear understanding:

SCHEDULE OF PREMIUM OWN DAMAGE LIABILITY Total own damage 4655.055 Basic third party Liability 5580 Premium 5 Driver of Rs. 200000 Special Discount 0 Total Liability Premium 5680 Net Premium 10335 Service Tax 1034 Final Premium Rs 11400 *** All premium Figures are in Rupees

11. It is clearly evident that, apart from the premium for own damage and the premium for third party liability, a sum of Rs. 100/- was paid towards the 'personal accident cover' for the owner-cum-driver (to an extent of Rs. 2,00,000/-). No other premium was collected under any other head. To make it more clear, no premium was collected from the owner/insured for covering the risk of anybody else who was travelling in the vehicle and as such, there is no coverage for anybody else.

12. The remaining question is whether the person concerned was travelling as an 'owner/representative of the goods' carried in the vehicle or as an 'employee of the insured'. There is no such case for the Appellant and the specific pleading clearly denotes that the deceased was only a gratuitous passenger, who was not travelling in the vehicle as 'owner/representative of the goods' or as an 'employee of the insured'. In the said circumstance, there is no coverage under these heads as well.

13. Coming to the legal aspects, as mentioned already, the Apex Court had rendered a decision in Satpal Singh (supra) to the effect that the Insurance company will be liable to satisfy the claim in respect of "any person" travelling in a goods carriage as well. But the correctness of the said decision was doubted and subsequently, the matter came to be considered by a Larger Bench in Asha Rani (supra), whereby it was held in crystal-clear terms that the claim in respect of a gratuitous passenger travelling in a goods carriage is not liable to be satisfied by the Insurer under a policy issued under Section 147 of the MV Act. The only eligible persons to get covered under the provisions of the statute are the persons either travelling as the 'owner or the representative of the goods' or as an 'employee of the Insured'. The instant case does not belong to such category. Similarly, as mentioned already, no additional premium was collected by the Insurance Company to cover the risk of anybody else in the goods carriage. The non-collection of the premium in this regard is evident from the Insurance Policy Schedule extracted above.

14. Applying the law to the given set of facts and circumstances, it has to be noted whether the Tribunal has done the exercise correctly. The various citations given by the Appellant have been referred to in 'paragraph 21' and the applicability of the relevant dictum is discussed in 'paragraph 27' of the Award. These two paragraphs are extracted below:

“LANGUAGE”

15. From the above, it is seen that the specific decision rendered by the Larger Bench of the Apex Court in Asha Rani (supra), whereby the decision rendered in Satpal Singh (supra) has been overruled , has not been mentioned in 'paragraph 21' or elsewhere of the Award. At the same time, it has to be noted that the Tribunal has adverted to the decision rendered by the Supreme Court in National Insurance Co. Ltd v. Baljit Kaur & Ors. {(2004) 2 SCC 1} which is a decision rendered after Asha Rani (supra) and of course with reference to the law declared in Asha Rani (supra). Despite noting the said decision, the Tribunal has not adverted to the 'dictum' anywhere in the Award. Had the Tribunal gone through the said decision, it would have clearly come to the notice of the Tribunal that Satpal Singh (supra) which has been relied on by the Tribunal in paragraph 27 to mulct the liability upon the shoulders of the Insurer, had specifically been overruled by the Larger Bench of the Supreme C

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ourt in Asha Rani (supra) which has been referred to and dealt with in Baljit Kaur (supra); which unfortunately has not been done. It is without any regard to the law laid down by the Apex Court in Asha Rani (supra) and Baljit Kaur (supra), that the Tribunal chose to place reliance on an overruled decision in Satpal Singh (supra) as disclosed in paragraph 27 of the Award, to fix the liability upon the Insurer. This, to say the least, can't but be deprecated in the strongest possible words. We find that the Award passed by the Tribunal is not correct or sustainable and accordingly, it stands set aside. 16. The Appellant/Insurer is declared as entitled to get back the amount in deposit, if the same is still lying at the hands of the Tribunal. If it has been disbursed to the Claimants, it shall be open for the Appellant/Insurer to get it recovered from the Owner and Driver of the vehicle concerned. It is also made clear that this judgment will not bar the way of the Claimants in getting the amount due realized from the Owner and the Driver of the vehicle by pursuing appropriate steps in accordance with law. Appeal is allowed to the above extent.
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