Jagwati & Ors v. Mohd Sazid @ Shokeen & Ors

INDERMEET KAUR, J. SEPTEMBER 27, 2OLL nandan i$ 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. b IN THE HIGH COURT OF DELITI AT NEW DELHI Date ofJudgment: 2 7. 9.20 I I Through: Mr.Santosh paul and Ms.Mohita Bagati, Advocates. Versus & ORS. Through: AND ..Respondents MrJ. N. Singh, Advocate. ENTAL INSURANCE MAC APPEAL Nos. L 54, 2O7,209,320,32L,324/2Ot L 't' I ; LL and COMPANY LTD. ...Appeltanr Through: Mr.Santosh paul and Ms.Mohita Advocates. Bagati, Versus & ORS. rhroush : r;J *i1i,?",ii"flTcare. AND ORTENTAL INSURANCE COMPANY LTD. ..Appellant Through: Mr.Santosh paul and Ms.Mohita Advocates. Bagati, Vtirsus JAGWATI DEVI & ORS. ..Respondents MrJ. N. Singh, Advocate. Page I ol'l t AND MAC APPEAL No. 320/20L1 IMOHD. SAZID ,i ; SMAA & ORS. Through: Versus IOHD. SAZrD @ SHOKEEN & ORS. Through: ..Appellants MrJ. N. Singh, Advocate. ..Respondents Mr.Santosh PauI and Page 2 ol't I Ms.Mohita Bagati, Advocates for the R-3. AND MAC APPEAL No. 321-12O1-1. rhroush: r;J ^fJtffii:1T,,o.ut". Versus @ SHOKEEN & ORS. ...ResPondents Tlrrough: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates for the R-3. AND MAC APPEAL No. 324l2O1-1- :JAGWATI & ORS. ..Appellants Through: MrJ.N.Singh, Advocate. Versus I\4OHD. SAZID @ SHOKEEN & ORS. ...Respondents Through: Mr.Santosh PauI and Ms.Mohita Bagati, Advocates for the R-3, CORAM: IION'BLE MS. JUSTICE INDERMEET KAUR MAC APPEAL Nos. 1 54. 2O7,2O9,320,321'3241 2Ol 1" s whether the Reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Yes whether the judgment should be reported in the Digest? ' Yus

(Oral) tfrir judgment shall dispose of six appeals which are n{tfoi"g before this court; three of which have been filed by the . it I tdJurdnce Company and balance three by the claimants of the "lt i - ' :l i Aebeabed vic[ims. Record shows that three persons had died in an ii .1 I ac6iddnt which had occurred in the intervening night of 13- '.tl't I 14IA.ZOOI while travelling in jn open canter; the deceased were '.1 I ,;. I I Se.hu,1, Asgar Ali ai'd Babu Ram; Sattar had died at the spot; Babu ri Ram Jno Asgar Ali hacl succumbed to their injuries in the hospital. l.t.. 'lne clarmants of the deceasecl victirns had filed three claim ,petitions before the Motor Accident Claim Tribunal" One eye-wiJneis PW-s Anil Kumar had been examined in evidence' His I testini.ony was to the effect that he along with his uncle Bhagwat, Asgar Aii, Babu Ram, Sattar and other persons were going to Rawatsar in a canter to purchase buffaloes; the cantor was being ": .. 'clri,rlen by Shokeen when their vehicle was hit by the offending .l'l Il: ,' .I ., tvIAQ, APPEAL No s. 1 54, 207,209,320,32 1,32 4 I 20 t 1 ,'i .I ''lr ll ,i ,I Page 3 ol'1l |; tt I! trtict< which was coming on the wrong side as result of which all 1i tfiI thb persons sitting in the cantor sustained i4juries; pursuant to [!&tr il ! w"$ich the aforenoted persons namely Babu Ram, Asgar Ali and Ii Sqttar had died; PW-S had sustained injuries. In his cross- ] ex.amination he had denied the suggestion that he was not an eye- + i u,iif""ts; his categorical denial was that he was not sleeping at ;itl i thht t[me; he had also denied the suggestion that the accident had I il ' ' L ll i i oC]cuilred because of the negligence of the driver of their canter. i il I titl I q{tti{rony of PW-s was examined in depth and detaii by the i'iti a The question which was posed before the Tribunal was I , wt-re,t|\er the Insurance Company could ward off its liability in of Section L47 of the Motor Vehicles'Act. Section 1.47 of ; ! 1"L47. Recruirements of policies and lirnits of liabilitv ,r=--T-*-]-.- l; ' I ttl In order to comply with the requirements of this Chapler, a i: i iHiisf-e.f-ttl-tgtql-c-e.-nlst be a-p-olicy wlrich- . - i(a) is issued by a person who is an authorised insurer; or t . ;{b) i.rr.,."r the person or classes of persons specified in the policy to the . . iextent specified in sub-section (2)- I r' i fil'against any tiability which may be incurred by him in respect i of the death of or bodily 1[injury to any person, including owner i of the goods or his authorised representative carried in the i vehiclel or damage to any property of a third par[y caused by or . arising out of the use of the vehicle in a public place; l Page 4 ol'l I : ,rrL ,Aou o., read.s as under: il ' .; i I,"rul.Recruirements of pol -, ' MAC APPEAL Nos. 1 54, 207,209,32O,32I,324120t\ rl il i ; \0 l A t t,l'i r't .t

(ii) against the death of or bodily injury to any passenger of a public seryice vehicle caused by or arlsing 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 his emploSrment other than a liability arising uncler the Workmen,s Compensation Act, 1923 (B of 1923) in respect of the death of, or trodily rnjury 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 Lhe vehicle, or

(ii) to cover any contractual liability Explanation.-For the removal of doubts, it is hereby declared that the 'l..ut of or bodily iniury Lo any person or damage tb any property of a third party shall be deenred to have been caused by or to irave arisen out lof, tlie use of a vehicle in a public place notwithstanding that the person who is dead of injured or the properby 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 (i-), a policy of insurance referred to in sub-section (L), shall cover any liability incurred in respecl 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 rupees six Lhousand: Provided Lhal" any policy of insurance issued with any limited liability 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 js issued by the insurer in favour of the person by whom th_e policy is effected a certificate of insurance in the prescriberi form.91d conbaining the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed.matters; Lnd MAC APPEAL Nos. 1 54, 207,209,320,32L,324/20t1 Page 5 of'l I ; \ I,| .l tl,i 'I iI :I,t '{ :l II I )I a ; I 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 bhe 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 lhe cover note relates has been registered or to such other authority 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 liability which the policy purporLs to cover in the case ofthaL person or those classes ofpersons."

¶3The question which has to be answered in this case is as to ' phether the three deceased persons who were golng in the canter tq purchase their buffaloes were sitting in the said vehicle as gfatuitous passengers or were 'i ridpemed goods. To answer this sitting in the cantor with the question; testimony of PW-S is iqlevant; there is no dispute to the fact that the said deceased I persons were going in the cantor to purchase buffaloes; the purpose was to go in the cantor to purchase these buffaloes and to cQme 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 vehicle with his goods or is carrying his articles with him. Purpose and the import of this legislation i.e. : tthe,Motor Vehicles Act which is a benevolent legislation has been ,,- '' MAi irpprar Nos.154, 207,20g,320,32r,324t201L Page6ofll ,,tl ,t I 'i I I ,l

1.1t, ll

1., ,,,1 ';:l .ir' ;tr "1 i '; i, tl I Ii, , " r| i | ,q'/ rl \ 'l I'I ri:l engfoaffecl, to ensure that speedy compensation is afford,ed to the .:til viitlrns of an unfortunate abcident and this has to be ]<ept in mind. ' !1 " il - rl Testimbnv of PW-S has to be thus viewed and examined in this {l'." bqci<ground. The whoie purpose of sitting in this cantor was to go il, to lthe ,market to purchase the buffaloes and to come back with .il al tlfqp in the same veh.icle. This is clear from the version of PW-S. '1 I -t I The words 'passenger', 'gratuitous passenger' and 'non-gratuitous I l. i! pqi$enger' have not been defined in the Motor Vehicle Act. Leained Tribunal had examined the facts from this angle as also tbe purpose of the enactment of the legislation. It had rigLtty noted that the aforenoted persons (deceased) were neither 'paid' and nor 'gratuitous passengers'; they were sitting in the cantor s r41ith the deemed articles; insurance company could thus not ward off its liability. The finding of the Tribunal on this count-suffers ftom no infirmity.

¶4In 2009 ACJ 1t9 National Insurance Co.Ltd. Vs. Saro-iamma ancl Ors. a similar situation has arisen; d vegetable vencler was tr:aveliing in a Tempo to procure vegetables for his shop when the unfortuirate accident occurred; accident had occurred before he had reached his destination point. The evidence had come ol record that the vehicle had been hired by him for the purpose of MAC APPEAL, Nos. L 54, 207,209,320,321,3241201 L PageTofll 'IF, + l. ' l"nl tI t"f .,lil i i jl transportation of his goocls; he not being a gratuitous passenger and nor a fare paid passenger insurance company was held liable' This court fincis support from the ratio of this judgment delivefed iby the Karnataka Bench. ! 1ls. A reading of Section 147 of the Motor Vehicle Act in fact t i i ,t.urty shows. that if the death or injury has occurred to any I persol including Lhe owner of the goods or his authorized representative"in the vehicle, insurance company is 'Iiable' Evidence in the present case shows that the accident had occurred before the victim could reach the destination point to purchase their buffaloes. 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 though the good,s were not in the vehicle when the vehicle met with the accid.ent but the vehicie was proceeding to reach the place of its clestination, 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 vehicle had met with an accident, it had to be deemed that the goods were with them. 11 f thus clear that the finding of the .learned Tribunal on this count suffers from no Mac appnm Nos. 1 54, 207,209,320,32t,3241201'1 I'a!e8ofll \9 ' 1. i :: " MAC APPEAL Nos. 1 54, 2O7,2O9'320'321"32412011 z-_--:- Page 9 ol-1l ___rr.E._Hdzari . 7-\^ a t rJetnJ_ \\ infirmity. dismissed. Appeais of the insurance company are accordingly 6,Theothertlrreeappealsfiledbytheclaimantsofthe deceased victims are aggrieved by the fact that under the head of 'love aucl affectiolr' compensation has been granted on a low count. This is the only challenge'

¶7- Asgar AIi was the .deceased victim;hewas40yearsofageonthed"ateoftheaccident.His minimum wages had been taken into account. He was married had a wife and three children. Loss of love and affection has been quantifiecl at Rs.10,000/-. AII children were dependents' Keeping in view the ratio of the judgment of this court in the case of APPEALNo.318/2008decid'ed,on24.3.2009,theamountawarded under the head of 'loss of love and affection' needs to be enhanced. There is no doubt that the widow and the minor children have lost out on the 10ve and affection which would have beenshowered.uponthembythed,eceased.Theywereintheir growing and formative years when they lost out on these blessings onaccountofthed'eathoffheirfather.Theamountawarded under the head of 'Iove and affection' is accord"ingly enhanced ,F 1l-s a c( C;;;;;: 770054 ';l .t 4rt ,SA - !*,! il The Award is modified on this B.glaimPetitionNo'260/201.0-DeceasedwasSattar;hewas 40 years of age; his minimum wages have been taken into account; benefit of future prospects has been given' He had a wife,twominorchildrenandanordagedmother;inviewofthe enhancement of the awarded amount under the head of ,Ioss of Iove arrd affection' in claim petition no.263l2OL0 'Ioss of love and affection' in this case is also enhanced from ns'ro,ooo/- to Rs.l-,00,000/-. This is the only modification made'

¶9The third claim Petition is Deceased Babu Ran was also 40 years of age; his minimum wages Ir"ave been taken into account; benefit of future prospects has been granted..Inthiscasealsothevictimwasnarriedandhehada wife,twominorchild.ren.Inviewoftheenhancement.ofthe awardecl amount under the head of 'Ioss of love and affection' in claim petition no.2631201-0 'Ioss of iove and affection' in this case isalsoenhancedfromRs.l0,000/-toRs.].,00,000/-.Thisisthe only modification made. L0. The statutory amounts be insurance company. The awarded A I FT ;ry' L'/ \5 rt ) I r from Rs.l-0,000/- to Rs'L,00,000/-' score onIY. released amount favour released of the to the IN be MAC APPEAL No s. 1 5 4, 207,209,320,321-'324 | 20t 1' Page l0 ol I I i 44e :_:__r, Courts, Delh'i - 11^^-- ," _ r_r-vu}$ \t, ants in terms of the directioirs contained in the Award dated i.20r 0. All the appeals are d.isposed of. IL/' tr-- ruonnMEET rcAUR, J. MAC APPEAL Nos. i. b4, ZO7,2Og,32O,32t,Z24t2Ot L Pagell ol'lt

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJudgment:27.9.2011 it.e MAC APPEAL No. 3241201L JAGWATI & ORS. .Appellants Through: MrJ.N.Singh,Advocate. Versus MOHD. SAZID @ SHOKEEN & ORS. ...........Respondents Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates for the R-3. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR L. 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. I. (OTal) =/ For order see MAC APPEAL No.L S4l20tI. ) ./; II I'tr