ORIENTAL INSURANCE COMPANY LTD Vs. HAZARA

JUDGEMENT

(1.) This judgment shall dispose of six appeals which are pending before this Court; three of which have been filed by the Insurance Company and balance three by the claimants of the deceased victims. Record shows that three persons had died in an accident which had occurred in the intervening night of 13-14.6.2007 while travelling in an open canter; the deceased were Sattar, Asgar Ali and Babu Ram; Sattar had died at the spot; Babu Ram and Asgar Ali had succumbed to their injuries in the hospital. The claimants of the deceased victims had filed three claim petitions before the Motor Accident Claim Tribunal. One eye-witness PW-5 Anil Kumar had been examined in evidence. His testimony was to the effect that he along with his uncle Bhagwat, Asgar Ali, Babu Ram, Sattar and other persons were going to Rawatsar in a canter to purchase buffaloes; the canter was being driven by Shokeen when their vehicle was hit by the offending truck which was coming on the wrong side as result of which all the persons sitting in the canter sustained injuries; pursuant to which the aforenoted persons namely Babu Ram, Asgar Ali and Sattar had died; PW-5 had sustained injuries. In his cross-examination he had denied the suggestion that he was not an eye-witness; his categorical denial was that he was not sleeping at that time; he had also denied the suggestion that the accident had occurred because of the negligence of the driver of their canter. Testimony of PW-5 was examined in depth and detail by the learned Tribunal. The question which was posed before the Tribunal was whether the Insurance Company could ward off its liability in terms of Section 147 of the Motor Vehicles Act. Section 147 of the said Act reads as under:

(2.) The question which has to be answered in this case is as to whether the three deceased persons who were going in the canter to purchase their buffaloes were sitting in the said vehicle as gratuitous passengers or were sitting in the canter with the deemed goods. To answer this question; testimony of PW-5 is relevant; there is no dispute to the fact that the said deceased persons were going in the canter to purchase buffaloes; the purpose was to go in the canter to purchase these buffaloes and to come back with the said articles; in this intervening period the unfortunate accident occurred. The proposition is well settled that the liability of the insurance company extends to a person who is travelling in the vehicle with his goods or is carrying his articles with him. Purpose and the import of this legislation i.e. the Motor Vehicles Act which is a benevolent legislation has been engrafted to ensure that speedy compensation is afforded to the victims of an unfortunate accident and this has to be kept in mind. Testimony of PW-5 has to be thus viewed and examined in this background. The whole purpose of sitting in this canter was to go to the market to purchase the buffaloes and to come back with them in the same vehicle. This is clear from the version of PW-5. The words 'passenger', 'gratuitous passenger' and 'non-gratuitous passenger' have not been defined in the Motor Vehicles Act. Learned Tribunal had examined the facts from this angle as also the purpose of the enactment of the legislation. It had rightly noted that the aforenoted persons (deceased) were neither 'paid' and nor 'gratuitous passengers'; they were sitting in the canter with the deemed articles; insurance company could thus not ward off its liability. The finding of the Tribunal on this count suffers from no infirmity.

(3.) In National Insurance Co. Ltd. v. Sarojamma and Ors., 2009 ACJ 119 a similar situation has arisen; a vegetable vender was travelling in a Tempo to pro-cure vegetables for his shop when the unfortunate accident occurred; accident had occurred before he had reached his destination point. The evidence had come on record that the vehicle had been hired by him for the purpose of transportation of his goods; he not being a gratuitous passenger and nor a fare paid passenger insurance company was held liable. This court finds support from the ratio of this judgment delivered by the Karnataka Bench.