ORIENTAL INSURANCE CO LTD Vs. RAJU

JUDGEMENT

(1.) Having lost their mother on an earlier occasion, five small children lost their father in an accident. Ramkishan Meena, a poor labourer while coming on a truck filled with stones, met his untimely death. The truck on which he was travelling was rashly and negligently driven by the driver. The truck went off the road. Because of bumpy ground, Ramkishan fell from the truck and his head was crushed under the rear wheel of the truck. He died instantly. Five children so orphaned were represented by their maternal grandfather, who filed a claim application on their behalf. Considering the facts and circumstances of the case, the Additional District Judge (Fast Track) No. 7, Jaipur City, Jaipur, was pleased to award a compensation of Rs. 4,90,800 to the claimants vide his award dated 21.3.2005. However, the insurance company is aggrieved by the fact that the orphans have been given such a large bounty. Therefore, it has challenged the said award before us.

(2.) Mr. Pratap Singh Arya, the learned counsel for insurance company has raised three contentions before us; firstly, the deceased was travelling as an agent of the person to whom the goods belonged, therefore, he is not covered by the insurance policy. Hence, the insurance company is not liable for his death. Secondly, instead of sitting in the cabin of the truck, he was sitting among the stones which were stored in the body of the truck. Therefore, he contributed to his own death by the sheer act of negligence of sitting in the open body of the truck. Thirdly, the learned Tribunal has imposed a penal interest of 12 per cent per annum which it could not have done as there is no legal provision for such imposition.

(3.) On the other hand, Mr. D.K. Bhardwaj, the learned counsel for the respondents, has contended that according to the evidence on record the deceased was a contractor, had gone to pick up the stones and was travelling with the stones at the fateful moment. Thus, he was travelling with his own goods. Hence, he would be covered under section 147 of Motor Vehicles Act, 1988 (henceforth to be referred to as 'the Act', for short). He has further argued that since the khalasi and the driver do not permit others to travel in the cabin, therefore, the deceased had no choice but to sit in the open part of the truck. Hence, there was no negligence on his part in so travelling in the truck. In all fairness he has conceded that there is no provision for imposition of penal interest.