NATIONAL INSURANCE CO. LTD. Vs. BHAG DEVI

JUDGEMENT

(1.) BY this common judgment, we propose to dispose of the four appeals, namely, National Insurance Co. Ltd. v. Bhag Devi, F.A.O. (MVA) No. 75 of 1994; National Insurance Co. Ltd. v. Deva Jean, F.A.O. (MVA) No. 76 of 1994; National Insurance Co. Ltd. v. Sewati Devi, F.A.O. (MVA) No. 78 of 1994; and National Insurance Co. Ltd. v. Leela Bhagati alias Leelawati, F.A.O. (MVA) No. 79 of 1994; since they have arisen out of the same accident. During the course of arguments, awards passed by the Motor Accidents Claims Tribunal, Shimla, were attacked by the appellant company on identical grounds, viz., that the insurance company did not charge any premium from the owner of the vehicle and there is no evidence on record to show that the passengers/injured were travelling in the vehicle along with their goods, which was a goods vehicle adapted and built for carriage of goods, none of such persons travelling in the said vehicle was carrying goods and there is no positive evidence to that effect. In addition to this, it was also argued that the passengers in the vehicle were carrying their personal belongings which were not goods within the meaning of Motor Vehicles Act and the deceased/ injured were being carried as unauthorised passengers, as such, the appellant company needs to be exonerated from payment of awarded amounts and liability, if any, according to the learned Counsel for the appellant is that of owner of the vehicle. In the case of F.A.O. (MVA) No. 79 of 1994, it has been additionally argued that there is no pleadings that the injured Leela Bhagati alias Leelawati was a fare paying passenger and only independent witness Ashok Kumar has said nothing about the luggage of this respondent as also there is no mention of any luggage of the persons travelling in the truck including deceased as well as injured in the FIR. So in this background, he has forcefully argued that all the appeals deserve to be allowed.

(2.) ACCIDENT in the present case has taken place on 12.12.1989 when some persons were travelling in truck bearing registration No. HPR 867 along with their goods meant for sale from Recong Peo to Pangi in Kinnaur District so as to enable them to attend a night festival and mela. When the truck reached near the place known as Pangi Mor near village Pangi its driver abruptly applied the brakes and asked the passengers to get down. In such process when the persons were alighting along with their goods, the driver of the truck rashly started to reverse the same in a rash and negligent manner, as a result of which it fell down into the khud and thereby crushing and injuring a number of persons. Four claim petitions were filed out of which present appeals have arisen. These petitions were contested and resisted by both, i.e., by the appellant as well as by the respondent owner.

(3.) ON the other hand, the appellant insurance company has taken a number of objections, viz., misjoinder and nonjoinder of parties; there is no privity of contract between Suresh Kumar and National Insurance Co. Ltd., therefore, the claimants are not entitled for compensation; further since the vehicle in question was a transport vehicle and at the relevant point of time was being used for the purpose not covered by the route permit, so it is not liable and the vehicle in question was not being driven by a duly licensed person/ driver as well as it was being driven not in accordance with specific terms and conditions of the insurance policy. While admitting the accident, it was pleaded by the appellant that it is not liable for payment of compensation because the deceased/ injured were gratuitous passengers and were travelling in the vehicle unautho risedly. The vehicle being plied in violation of specific terms and conditions of the insurance policy, therefore, liability was disputed on this ground also.