Oriental Insurance Co Ltd v. Jagwati Devi & Ors

INDERMEET KAUR, J. SEPTEMBER 27, 2OL1. nandan Appellant Paul and Bagati, a I /l I l/.. € 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. I ii, i ii " :,1 b ?':.t i::!i 1'ta .'tl t iti l-i rN T'HE HrGr{ couRT oF DELr{r AT NEW DELHr 'lJ I *i X I liii'ii l^i Date orJudsmettt:27'e'2011 :ii il% i:l'::'i i Ms-Mohita Bagati, l.jl,''il I edvocates. Versus ,, i,..1 I I 'i {H4Zena & oRS. jf,"r]^* or ur(b. : ;i, ;1 | Through: MrJ.N.Singh, Advocate. .;: ;J I AND .,ql lr{'i,i NoJ9112011 and CM Nos. 4B9A/2O1-1 & ;ii: 1869s/2011 ,:tl:, riir |OTENTAL INSURANCE COMPANY LTD. ...Appeilant i;,,', i I Through: Mr.Santosh phul and ,-';,,' _ .j.; ,; i Ms.Mohita Bagari, .::, I Advocares. iii' I Versus " .i I l,'i'^ i !';ir. A.SMAA & ORS. ..Respondents =,1,r ' I fn,.". i t..'',i I Through: MrJ.N.Singh, Advocate. lt, i tJ ',, I AND i.J ORIENTAL INSURANCE CoMPANY LTD. :,. \rrurr.\ r.AL 11\uuRANU.b uoMpANy LT'D. ...Appellant ii: Through: Mr.Santosh. paul ancl ..i Ms.Mohita Bagari, Advocates. ''i' versus ;, . JAGWATI DEVI & ORS. ..Respondents i Through: MrJ.N.Singh, Advocate. i. Page I ol'I I fi l' ! itr ;:l', :lh 'i.ij l . i,,i. i1. i.i " i',1, lf MAC AppEAL Nos.154, 2O7,20g,320,321,324t2011 x .t,. iil. !itr,r i t:' !'::l ' , -i I 'i {! i. :,1 ' ,,' r'1. L.i Through: Mr.J.N.Singh, Advocate' Versus MOHD. SAZID @ SHOKEEN & ORS. ..'Respondents Through: Mr.Santosh Paul and AND MAC APPEAL No. 32O12OL1-ASMAA & ORS. ..Appeliants Ms.Mohita Bagati, Advocates for the R-3. AND MAC AFFEAL No. 321-12011. HAZARA & ORS. ..AppeIIants 'Ihrough: MrJ.N.Singh, Advocate' Versus I4OHD. SAZID @ SHOKEEN & ORS. ..'Respondents . Tlirough: Mr.Santosh PauI and Ms.Mohita Bagati, Advocates for the.R-3. MAC APPEAL No. 32412O1-1 TAGWATI & ORS. ..Appeilants 'fhrough: MrJ.N.Singh, Advocate. Versus N,IOI{D. SAZID @ SHOKEEN & ORS. .'.RESPONdENIS Through: Mr.Santosh PauI and Ms.Mohita Bagati, Advocates for the R-3, CORAM: I..ION'tsLE MS. JUSTICE INDERMEET KAUR MAC APPEAL Nos. 1 54, 207,209,320,321,324120L L Page 2 ol'l I g . Whether the Reporters of local papers may be allowed to see the judgment? . '.to be referred to the Reporter or not? Yes .WhetlrerthejudgmentshouldbereportedintheDigest? Yes IN+EFMTET K.AuR. I. (orat) ,i " 1. i -[his judgment shall dispose of six appeals which are -l l. our\ut^n before this Court; three of which have been filed by the i i' Insurelnce company and balance three by the claimants of the 'l .,i deceased ,,,cnms. Record shows that three persons had died in an ,.accio.int which had occurred in the intervening night of L3- ,i ilA;O.jOg7 while travelling in an open canter; the deceased were .:". n lij{:i, sattarf, Asgar Ati zi.'d Babu Ram; sattar had died ar rhe spot; Babu i,;fiilt i Ru* and Asgar Ali had succumbed to their injuries in the hospital' :f,i ',:j:li; :' ]il.iiiji;, *, ctaimanrs of rhe deceased vicrirns had filed three claim l. r:. iii.: petitions before the Motor Accident Claim Tribunal' One eye-li.;',,ritn.*r pw-s AniI Kumar had been examined in evidence. His :'' , , 1 - -r^-^- -..:+1^ f-in rrnnla Rharrrrrraf .i..,1,.testimony was to the effect that he along with his uncle Bhagwi'"' .': ;li Asgar Ali, Babu Ram, Sattar and other persons were gorng to {t, '' X.l Rawatsar in a canter to purchase buffaloes; the cantor was being ';, ifi'clriven bv Shokeen when their vehicle was hit by the offending l!'! ; .. ' , lrn C. nppnnl Nos. 1 54, 207,209,320,321'32 +l20t I Page 3 ol'l I ? I I truck which was coming on the wrong side as result of which all the persons sitting in the cantor sustained injuries; pursuant to wllictr the aforenoted persons namely Babu Rarrr, Asgar AIi and Sattar had died; PW-S had sustained injuries. in hj.s cross- ,1, examination he had denied the suggestion that he was not an eye- : i': wijbness; his categorical denial was tllat he was not sleeping at i ., i. .,. . thitt t[me; he had also denied the suggestion that the accident had :l ,i oclurlrecl because of the negligence of the driver of their canter. :j .i Tdstimony of PW-s was examined in depth and detail by the ,' ledrnbd Tribunal. Tribunal was its liability in Section 1,47 of ,i, the sririd act reads as under: ' :l' .1 - i\'17-. $equ1J9.1ne-'ts..of polic-,e*s- -a'd. lirlitl of liability t, J:, ijfl- ' i ttl In orcler to comply with the requirements of this Chapter, a iii( \ r., ev vvuryrJ ll; . pq-liqy:..qt-in-syfqllc.9.m9st-bP e p-olicy which- , c -,)' i,,', _ 1",i.,

(a) is issued by a person who is an authorised insurer; or l.,o i"'r, .

(b) jnsurer the person or classes of persons specified in the policy to the ,. extent specified in sub-section (2)-

i)'against any liability which may be incurred by him in respect i.' 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 parly caused by or arising out of the use of the vehicle in a public place; Page 4 ol'l I p

(ii) againsb 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 arid in the course cf his employment other than a liabilily arising uncler the workmen,s compensation Act, 1923 (B of 1923) in respect of the death of, or Itodily injury to, any such employee-

(a) engaged in driving 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 contractual liabilify Explanaliou.-For the removal of doubts, it is hereby declared that the ,l.ut of or bodily iniury to any person or damage tb any property of a ihird party shall be deenred ro have been caused by or to irave arisen out of, the use of a vehicle in a public place notwithstanding that the perso]l who is dead of injured or the properLy which is damaged was nol 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 referred to in sub-section (L), shall cover any liability incurred in respect of any accidenL, up to the following limits, namely:-

(a) save as provided in clause (b). the amount of liability incurrecl;

(b) in respect of damage to any properly of a third party, a limit of nrpees six Lhousand: Provided thal any policy of insurance issued with any limited lial:ility arrd 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 and conLaining the prescribed particulars of any condition subject io which the policy is issued and of any other prescribed.matters; and . 1MAC APPEAL Nos. 1 54, 207,209,320,32J.,324120tt Page 5 of'l I \ u different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of Lhe expir-y of the period of the validity of the cover note, notifu the fact to the registering authority in whose records the vehicle to tvhich [he cover note relates has been regislered or to such other authoriLy as the State Government may prescribe.

(5) Notwithstanding anyLhing contained in any law for Lhe 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 person or those classes ofpersons." t.

¶3The 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 Eratuitous passengers or were sitting in the cantor with the deemed goods. To answer this question; testimony of PW-S is reievant; there is no dispute to the fact that the said deceased persons lvere going in the cantor to purchase buffaloes; the ;'purpose was to gg in the cantor to purchase these buffaloes and to ,' come back ivith the said articles;'in this intervening period the :'unfortunate accident occurred. The proposition is well settled ;..thau the liability of the insurance company extends to a person .rwho i.s travelling in the vehicle with his goods or is carrying his ',,,articles with hini. Purpose and the import of this legislation i.e. ;the Motor Vehicles Act which is a benevolent legislation has been MAC APPEAL Nos. 1 54, 207,209,320,321,324120t1 Page6ofll ( engpafted to ensure that speedy compensation is afforded to the '! .victims of an unfortunate accident and this has to be kept in mind. fesfimony of PW-5 ]ras to be thus viewed and examined in this t\ bac$ground. The whole purpose of sitting in this cantor was to go t. I 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-S. The words 'passenger', 'gratuitous passenger' and 'non-gratuitous it ,ii; Passenger' have not been defined in the Motor Vehicle Act. : Learned Tribunai had examined the facts from this anqle 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 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 119 and Ors. a similar situation has arisen; d vegetable vender was travelling 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 vehicle had been hired by,him for the purpose of MAC APPEAI, Nos. 1 54, 207,209,320,321,3241201L Page z ot'it v 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 judgment delivered by the Karnataka Bench.

¶5A reading of se.ction 1,47 of the Motor vehicle Act in fact clearly shows that if the death or injury has occurred to any person" including bhe owner of' the goods or his authorized representutirru in the vehicle, insurance company is liable. Evidence in tlr"e present case shows that the accident had occurred before the victim could reach the destination point to purchase their buffaioes. The vehicle had 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 lhough'the goods were not in the vehicle when the vehicle met with the accident but the vehicle was proceeding to reach the place of i[s destination, in such a scenario it cannot be said that the victims were gratuitous or paid passengers. The vehicle i'e' the cantor had been hired by them only this purpose; in such a situation if their vehicie had met with an accident, it had to be deemed that the goocls were with them. It is thus clear that the findinq of the learned Tribunal on tlr.is count suffers from no MAC APPEAL Nos. 1 54, 207,209,320,321,324 12,01 1 PageSofll /-'---.- infirmity. Appeals of the insurance company are accordlngly dismissed.

¶6The other three appeals filed by the claimants of the deceased victims are aggrieved by the fact that under the head of 'Iove aucl affection' compensation has been granted on a low count. This is the onIY challenge T,ClaimPetitionNo.263/201.0-AsgarAliwasthe.deceased t victim; he was 40 years of age on the date of the accident' His minimum wages hacl been taken into account. He was married had a wife and three chiiciren. Loss of love and affection has been quantifiecl at Rs.l-0,000/-. All chilclren were dependents' Keeping in view the ratio of the judgment of this court in the case of MAC APPEAL No.318/2008 decided on24.3.2009, the amount awarded under the lr.ead of 'Ioss of love and affection' needs to be enhanced. There is no doubt that the widow and the minor children have 10st out on the 10ve and affection which would have been showered upon them by the deceased' They were in their growingatrd'formativeyearswhentheylostoutontheseblessings onaccountofthed"eathoftheirfather.Theamountawardeci under the head of 'Iove and affection' is .accordingly enhanced MAC APPEAL Nos. L 54, 2O7,209,32O'32L'3241 201' 1' Page 9 ol'1 l ry os/. -K.-t.^ll : -r:as-' Hazar i. Corr.-il, - ' T)a1h: ."uoLiJt us-LrlJ_ - 71Anrn t+ v UJ4 ,F 'lt S a \,c t; €A -!_r.il ', I i {r from Rs.l-0,000/- to Rs.1,00,000/-. 'I'he Award is modified on this ,aoru.otly. B. Cfaim petition no.ZDeceased was Sattar; he was 40 years of a9e; his tninimum wages have been taken into account; benefit of future prospects has been girzen' He had a wife, two minor child"ren and an old aged mother; in view of the enltancement of the awarded amount und'er the head of 'loss of Iove arrcl affection' in claim peti.tion no.2631201-0 'loss of iove and affection'in this case is also enhanced from Rs'10,000/- to Rs.l-,00,000/-. This is the only r:rodification made'

¶9The thircl clainr. petition is claim petition No-262/2010' Deceased Babr-i Rarn was also 40 years of age; his minimllm \/ages irave l:een taken into account; benefit of future prospects has been trrlx!D ;\J' \5 ,1 )t l {ltl IJ:; ll-irl ttu .rl - I granLed. 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 'loss of love and affection' in clairn petition no.263/2O10 'Ioss of love and affection' in this case is aiso enhanced from Rs'10,000/- to Rs'l-,00,000/-' Thi's is the only modification made. L0. T'he statutory amounts be released insurance company. The awarded amount MAC APPEAL Nos. 1 54, 207,209,320,32I,324 l20L 1 of the to the IN be favour reieased Page l0 of' l t 1'1s Hazari Det hi Courts, 770 0 54 \b : Ii,plarmants in terns of the directioirs contained in the Award dated 1s.11.2010. i A-il the appeals are disposed of. IIl,/ b'- INDERMEET I(AUR, J. I' rj .t SEqTEMBER 27, }OLT Ianglan MAC APPEAL Nos. 1 54, 207,209,320,32L,324120t I PageIIol'lt

* % IN THE HIGH COURT OF DELHI AT NE\/v DELHI Date ofJudgment: 27.9.20I I MAC APPEAL No. 209/2O11 ORIENTAL INSURANCE COMPANY LTD. . Through: Mr.Santosh Ms.Mohita Advocates. Versus JAGWATI DEVI & ORS. ..........Respondents Through: MrJ.N.Singh, Advocate. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be aliowed to see the judgment? 2. To be referred to the Reporter or not? yes 3. Whether the jucigment should be reported in the Digest? Yes INDERMEET KAUR. T. (OTal) For order see MAC APPEAI, No.1 54/201,L.