Oriental Insurance Co Ltd v. Asmaa & Ors

INDERMEET KAUR, J. . SEPTEMBER 27, ?OLL nandan Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * % IN '[HE HIGII COURT OF DELI{I AT NEW DELHI Date ofJudgment: 2 7. 9.2 0 I I EAL No. 15 os. 8699/201L & OryENTAL INSURANCE COI\4PANY LTD. ........Appellant I Through: Mr.Santosh paul and & ORS. Ms.Mohita Advocates. Versus ..Respondents Through: MrJ.N.Singh, Advocate. . Ms.Mohita Advocates. Bagati, Bagati, AND O1-1-a ENTAL INSURANCE COMPANY LTD. ...Appellanr Through: Mr.Santosh Paul and Versus ASldAA & ORS. rhrough: r;J *t??ili'*':care AND OzuENTAL INSURANCE COMPANY LT'D. ...Appellant Through: Mr.Santosh Par_ri and Ms.Mohita Advocates. Bagati, Versus JAGWATI DEVI & ORS. ..Respondents Through: Mr.J.N.Singh, Advocate. MAC APPEAL Nos. 1 54. 207,209,320,321,3241201 1 Page t ol'l I Through: Mr.J.N'Singh, Advocate. Versus MOHD. SAZID @ SHOKEEN & ORS. ...Respondents Throuqh: Mr.Santosh Paul and AND MAC APPEAL No. 32Ol2O11 ASMAA & ORS. ..AppeIIants Ms.Mohita Bagati, Advocates for the R-3. AND MAC AFPEAL No. 321-12O1-L HAZARA & ORS. ..AppeiIants Through: MrJ.N.Singh, Advocate' Versus IVIOHD. SAZID @ SHOKEEN & ORS. ...Responddnts Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates for the R-3. AND MAC APPEAL No. 324/2O1-1 TAGWATI & ORS. ..ApPellants 'fhrough: MrJ.N.Singh, Advocate' Versus N4OI{D. SAZID @ SHOKEEN & ORS. ...Respondents Through: Mr.Santosh Paul and Ms.Mohita Bagati., Advocates for the R-3. CORANI: HON'tsLE MS. JUSTICE INDER.MEET KAUR MAC APPEAL Nos. 1 54, 207,209,320,32L,3241201' I Page 2 ol'l I , l-. Whether the Reporters of local papers may be allowed to i see the judgment?

¶2'to l:e referred to the Reporter or not? Yes $.WhetlrerthejudgmentshouldbereportedintheDigest? i 'trrsurrtrrce Company and balance three by the claimants of the ':; 'i. deceasecl vicbims. Record. shows that three persons had died i'n an .t., j' I' acciddnt which had occurred in the intervening night of 13-rl",i j) : 14',6.2007 while'travelling in an open canter; the deceased were i:'. Satturl, Asgar AIi eind Babu Ram; Sattar had died at the sPot; Babu :,, ' 1'n..Ram and Asgar Ali hacl succumbed to their injuries in the hospital' :':, i'' '"rr" claimants of the deceased victirns had filecl three claim' !'ttl ; n'; i;,:,petitiqns before the Motor Accident Claim Tribunal' One eye-ii,witness PW-s AniI Kumar had been examined in evidence' His ; i, i,.testimony was to the effect that he along with his uncle Bhagwat' '.'r,r --:-^- !^ iii'atgut Ali, Babu Ram, Sattar and other persons were going to 'i't; - - r- ----^L^^^ r^,,f€arnoc. fho nanfnr wAs heino ,1.. nu*urrar in a canter to purchase buffaloes; the cantor was being :' i{;,clxiven by Shokeen when their vehicle was hit by the offending i i, nsimhyrunr ra,un. r. (oral) IvIAC APPEAL Nos. L 54. 207'209,320,321'324 l2OI I .: Yes [)age 3 ol'l l truck which was coming on the wrong side as result of which all thg persons sitting in the cantor Sustained injuries; pursuant to wJiich the aforenoted persons namely Babu Ratrr, Asgar A-Ii and Sattar haci dled;' PW-5 had sustained injuries. In his cross-examination he had deniecl the suggestion that he was not an eye-I wiibness; his categorical denial was that he was not sleeping at .r i i ttrat dme; he had also denied the suggestion that the accident had -i ,i. oc,cuilrecl because of the negligence of the d"river of their canter. i'I il i festiniony of PW-s was examined in depth and detail by the .','2.t lThe question which was posed before the Tribunal was i,l l,whether the Insurance Company could ward off its liability in r' I ill; . I :. rorms or becrron 147 of. the Motor Vehicles Act. Section L47 of tt :ii the said Rct reads as under: ,i,:-- -: l: 7-' Re c1q!r9;1ne nts-.o-f -po I icj g 9- -and- [ryit9 o f liab ility l;iti,. . :

(1) In order to comply with th_e requirements of this Chapter, a or in the policy to the i::jj p-ejigy_".9{"it9y"nlr-9_9-myslbg.epolicywhicl'-

(a) is issued by a person who is an authorised insurer; .

(b) iusurer the person or classes of persons specified ' extent specified in sub-section (2)- .(i)'against any liability which may be incurred by him in respect ,l of the death of or bodily l[injury to any person, including owner of the goods or his authorised representative carried in the vehiclel or damage to any properly of a third party caused by or ' arising out of the use of the vehicle in a public place; . Page 4 ol'1 I ','tl ;11.. i'r; i ti l'i r?' I i t..., ilr :,ii' l;!i.. it, .' 'r.rr MAC APPEAI. Nos. 1 54, 207,209,32O,32I,324120t1' .t... i.t' t.1 I'.'t' \

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place; Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course cf hii employment other than a liability arising uncler the \t/orkmen,s Compensation Act, 1923 (B of 1923) in respect of the death of, or hodily injury to, any such employee-

(a) engaged in clriving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any conlractual liability Explanatiou.-For the removal of doubts, it is hereby declared that the 4"ultr of or bodily iniury to any person or damage tb any properby of a third party shall be deemed to have been caused by or to haue arisen out of, the use of a vehicle in a public place notwithstanding tbat the persorl who is dead of iqjured or the properLy which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) subject to the proviso to sub-section (1), a policy of insurance t'eferred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

(a) save as provided in clause (b). the amount of liabiiity incurred;

(b) in respect of damage to any properLy of a third parLy, a limit of nlpees six Lhousand: Provided that any policy of insurance issued with any limited liabiliby and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribecl form-11d conLaining the prescribed particulars of any condilibn subject to which the policy is issued and of any other prescribed.matters; and l' ;MAC APPEAL Nos. 1 54. 207,209,320,32t,324t201 L Page 5 of'I 1 4A \ different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover noLe issued by the insurer under the provisions of this Chapter or the rules made thereunder is n<.rt followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of Lhe expiw of the period of the validity of the cover-note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authorily as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liahle to indemnify the person or classes of persons specified in the policy in respect of any liabilify which the policy purports to cover in the case of thaL Derson or those classes ofoersons."

¶3The cruestion 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 sittinq in the said vehj.cle as gratuitous passengers or were sittingr "in the cantor with the deemed goods. To answer this question; testimony of PW-5 is reievant; there is no dispute to the fact that the said deceased persons were going i" the cantor to purchase buffaloes; the :.'.,' purpose was to go in the cantor to purchase these buffaloes and to come back with the said articles; in this intervening period the unfortunaLe accident occurred. The proposition is well settled that the liability of the insurance company extends to a person who is travelling in the vehicie with his goods or is carrying his with him. Purpose and the import of this legislation i.e. Motor Vehicles Act which is a benevolent leqislation has been Page 6 ol'l I v engiafted to ensure that speed.y compensation is afforded to the .i .victims of an unfortunate accident and this has to be lcept in mind. .Tesiimony of PW-S has to be thus viewed and examined. in this 't\ baclrground. The whole purpose of sitting in this cantor was to go I to the ,nrarket to p'urchase the buffaloes and to come back with ther,n in the same vehicle. This is clear from the version of PW-s. , The words 'passenger', 'gratuitous passenger' and 'non-gratuitous passenger' have not been defined in the Motor Vehicle Act. Learned Tribunal had examined the facts from this angie as aiso 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 cantor 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.

¶4In 2009 ACJ 11,9 National Insurance Co.Ltd. Vs. Saroiatnma antl Ors. a sirnilar situation has arisen; o vegetable vencler was tr:avelling in a Tempo to procure 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 vehicie had been hired by him for bhe purpose of MAC APPEAI, Nos. 1 54, 207,209,320,32t,324120LI Qage z ol'it transportation of his goocls; he not being a gratuitous passenger: and nor a fare paid passenger insurance company was held liable' This court fincls support from the ratio of this juclgment delivered by the l(arnataka Bench.

¶5A read.ing of section L47 of the Motor Vehicle Act in fact clearl5r shows that if the death or injury has occurred to any person including [he owner of the good"s or his authorized representative in the vehicle, insurance company is 'liable' Evidence in the present case shows that the accident had occurred before the victim couid reach the destination point to purchase their buifaloes. The vehicle ha4 been hired by them only for transporting the goods and they were travelling in this vehicle for this purpose which was the transportation of their goods; even [hou.gh.the goods were not in the vehicle when the vehicle met with the accident but the vehicle was proceeding to reach the place of its destlnation, in such a scenario it cannot be said that the victims were gratuitous or paid passengers. The vehicle i'e' tlr.e cantor had been hired by them only this purpose; in such a situation if their vehicle had met with an accident, it had to be deemed that the goocls were with them. It is thus clear that the finding of the learnecl Tribunal on this count suffers from no MAC APPEAI. Nos. 1. 54, 2O7,209,92O,32L,324 l2OL 1 I)ageSoill .i, i' ;r E&.1 i*i r:ld infirmity. Appeals of the insurance company dismissed. are accordingly

¶6The other three appeals filed by the claimants of the deceased victims are aggrieved, by the fact that under the head of ,love aircl affection' compensation has been granted on a iow count. This is the only chalienge'

¶7claim Petition No.263/20L0 - Asgar Aii was the d'eceasecl victim;hewas40yearsofageonthed.ateoftheaccident.His minimumwageshadbeentakenintoaccount.Hewasmarried, had a wife and three chilclren. Loss of love and affection has been quantifiecl at Rs.l-0,000/-. AII chilclren rivere dependents' Keeping in view tire ratio of the judgment of this court in the case of MAC APPEALNo'318/2008decided.on24.3.2009,theamountawarded under the head of 'loss of love and affection' needs to be enhanced. There is no doubt that the wicl0w and the minor children have lost out on the 10ve and affection which would have beenshowered.uponthembythedeceased.Theywereintheir growingatrd'formativeyearswhentheyiostoutontheseblessings onaccountofthed.eathoftheirfather.Theamourrtawardecl under tlr,e head of 'Iove and affection' is accordingly enhanced MAC APPEAL Nos. 1 54, 2O7,2Og'320'32I'324 l2OI 1 Page 9 ol'1l F ")| s a UC .r-rB--Hazari CourLs, Del-hi I! liitit -4l I frrr:tttrE aA -!-! from Rs.10,000/- to Rs.1,00,000/- score only. The Award is modified on this B. g.lairn Petition No. Deceased was Sattar; he was 4}yearsofage;hisminimumwageshavebeentakeninto account; benefit of future prospects has been girren' He had a wife, two minor children and an old aged mother; in view of the enhancement of the awarded amount under the head of 'loss of Iove anct affection' in claim petition no.263120L0 'ioss of love and affection'in this case is also enhanced from Rs.10,000/- to Rs.1,00,000/-. This is the only modification made'

¶9The rhircl claim petition is claim petition No-2622010' Deceased Babu Rarn was also 40 years of age; his minimum \^/ages have l:een taken into account; benefit of future prospects has been granted. In this case also the victirn was married and he had a wife, two minor children. In view of the enhancement of the awardecl ainount under the head of 'Ioss of love and affection' in clairn petition no.2631201-0 'Ioss of love and affection' in this case is also enhanced from Rs'10,000/- to Rs'1'00'000/-' Thjs is the only modification made. amounts be released The awarded amount i'-! / $ ( ) I t- :,ii li:r S',i rt! ril

¶10'I'he statutory insurance comPanY. of the to the in be favour released MAC APPEAL Nos. 1 54, 207,209,320,32t'324 120t1' Page l0 ol' I I 1':L s 1a_zari Courts, T\^ a r .ue-l.Ill .- 1 'l A^- " . J--LvUe4 v ,| .| tl ,, I : {!. ,clairnants in terms of the directioirs t' t. is.11.2010. contained in the Award dated

IhIDERMEET. KAUR, J. PageIl <11'll tr-- All the appeals gre disposed of. t,,.h. $ sh'qTEMBER 27, 2OL1, rianilan MAC APPEAL Nos. 1 54, 207,209,32O,32L,324/2OL 1,

% * IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofJudgment: 2 7. 9.20 I 1 + MAC APPEAL No. 2071201-1 ORIENTAL INSURANCE COMPANY LTD. ...Appellant Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates. Versus ASMAA & ORS. rhroush: r;J ri?,??,it"illi."," CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR t. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, T. (OTaI) For order see MAC APPEAL No.i.54120Lt. III(/