Hazra & Ors v. Mohd Sazid @ Shokeen & Ors

IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofJudgment.- 27.9.2011 MAC APPEAL No. 321/2011 HAZARA & 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: BON-BLE MS. JUSTICE INDERMEET KAUR

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to the Reporter or not? Yes

¶3Whether the judgment should be reported in the Digest? Yes A00 INDERMEET KALUR, 1. (Oral) For order see MAC APPEAL No. 154/2011. SEPTEMBER 27, 2011

INDERMEET KAUR, J. 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. Palle I Of I I I-- POI * 1 IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofjudgment: 27.9.2011 Rill. ) "'m +NIAC APPEAL No. 154/2011 and CM Nos. 8699/2011 & 36,44/2011 ORIENTAL INSURANCE COMPANY LTD. ........... Appellant Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates. Versus H.P ZARA ORS. .......... Respondents Through: Mr.J.N.Singli, Advocate. AND 1MAC APPEAL No. 207/2011 and CM Nos. 4890/2011 & 1,905/2011 Offil ENTAL INSURANCE COMPANY LTD. .......... Appellant Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates. Versus ASMA-A & ORS. Respondents Through: Mr.J.N. Singh, Advocate. AND MAC APPEAL No. 209/2011 and CM Nos. 4925/2011 & 84 f6j ^ 82 0 ^ ORIENTAL INSURANCE COMPANY LTD. ........... Appellant Throucrh: Mr.Santosh Paul and Ms.Mohita

Bagati, Advocates. Versus .......... Respondents Mr.J.N,Singh, Advocate. 1AC APPEAL Nos. 154, 207,209,320,321,324/2011 . . ...... .... . . ...... . . ...... . I kGWATI DEVI & ORS. Through AND MAC APPEAL No. 32.Q/2011 ASMAA ORS. .......... Appellants Mr.j.N.Singh, Advocate. Through: Versus MOHD. SAZID SHOKEEN & ORS . ........... Respondents Through: Mr.Santosh Paul and Ms.Mohita Bagati, fit! Advocates for the R-3. AND MAC APPEAL No. 321/201 .......... Appellants HAZARA ORS. Through: Mr.J.N.Singh, Advocate. Versus ........... Respondents ^40HD. SAZID SHOKEEN & ORS. Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates -3. for the R AND MAC APPEAL No. 324/2011 T1 ORS, ....... .-Appellants JAGWA Through: Mr.j.N.Singh, Advocate. Versus MOHD, SAZID SHOKEEN & ORS . ........... Respondents Through: Mr.Santosh Paul and Ms.Mohita Bagati, Advocates for the R-1 CORAM: H'ON-BLE MS. JUSTICE INDERMEET KAUR MAC APPEAL Nos.154, 207,209,320,321,324/2011 K FWI

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referf ed to the Reporter or not? Yes

¶3Whether the judgment should be reported in the Digest? Yes 1pqDEIkMEET IKAUR, 1. (Oral) of six appeals which are This judgment shall dispose pe-n ! din g before this Court; three of which have been filed by the lnsura^nce Company and balance three by the claimants of the sons had died in an :deceased victims. Record shows that three per hich had occurred in the intervening night of 13-ccident w a open canter; the deceased were 14,6.2007 while travelling in an Asgar Ali and Babu Ram; Sattar had died at the spot; Babu Satta^ vl^ Rl^ ries in the hospital. Ram and Asgar Ali had succumbed to their inju The claimants of the deceased victims had filed three claim petitioi.-is before the Motor Accident Claim Tribunal., One eye His Witness PW-5 Anil Kumar had been examined in evidence. t estimony was to the effect that he along with his uncle Bhagwat, Asgar Ali, Babu Ram, Sattar and other persons were going to Rawatsar in a canter to purchase buffaloes; the cantor was being driven by Shokeen when their vehicle was hit by the offending 11 age 3 ot'l I IVfAC APPEAL Nos. 154, 207,209,320,321,324/2011 I N ,in truck which was coming on the wrong side as result of which all the persons sitting in the cantor sustained injuries; pursuant to which the aforenoted persons namely Babu Ram, Asgar Ali and -5 had sustained injuries. In his cross-Sa:'ttar had died; PW examination he had denied the suggestion that he was not an eye-witness; his categorical denial was that he was not sleeping at that 6me, he had also denied the suggestion that the accident had d because of the negligence of the driver of their canter. occurre TOstin-iony of PW-5 was examined in depth and detail by the

¶71 leArn6d Tribunal.

¶2iThe question which was posed before the Tribunal was whetoef the Insurance Company could ward off its liability in. terms of Section 147 of the Motor Vehicles Act. Section 147 of the sa'ld Act reads as under: "147. Requirements of policies and limits of liability

(1) In order to comply with the requirements of this Chapter, a N policy of insurance must be a policy which-

(a)is issued by a person who is an authorised insurer, or

(b)insurer 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 of the death of or bodily '[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; MAC APPEAL Nos.154, 207,209,320,321,324/2011 Page 4 ofl I

(ii) against the death of or bodily injury to any passenger of a T, 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-J

(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

i sured by the policy or in respect of bodily injury n sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-l v^

(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 liability. Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a ri third party shall be deemed to have been caused by or to have a sen out of, the use of a vehicle in a public place notwithstanding that the person who is dead of injured or the property 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 referred to in sub-section (1), shall cover any liability incurred in respect JiM4 of any accident, up to the following Its, namely:-

(a)save as provided in clause (1)), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of -rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the c7ommencement 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. -poses of this Chapter

(3) A policy shall be of no effect for the pur unless and until there is issued by the insurer in favour of the person by whom the policy is effected a ceitificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other pre scribe d. matters; and ^MAC APPEAL Nos.154, 207,209,320,321,324/2011 Page 5 of' I I ^O M 'I " ji -ticulars and matters may be prescribed in different different forms, paj cases.

(4)Where a cover note issued by the insurer under the provisions 1^ I li of this Chapter or the rules made thereunder is not followed by a policy toll, of insurance within the prescribed time, the insurer shall, within seven days of the expiry 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 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 liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of tha t person or those classes of persons." to

¶3The question which has to be answered in this case is a-,, whether the three deceased persons who were going in the canter to purchase their buffaloes were sitting in the said vehicle as gratuitous passengers or were sitting in the cantor with the IJ deemed goods. To answer this question; testimony of PW-5 is relevant; there is no dispute to the fact that the said deceased the persons were going in the cantor to purchase buffaloes, E, purpose was to go in the cantor to purchase these buffaloes and to come back with the said articles; in this intervening period the unfortunate accident occurred. The proposition is well settled

4.1 EfFir that the liability of the insurance company extends to a person g Fj,^q^ 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. the Motor Vehicles Act which is a benevolent legislation has been MAC APPEAL Nos-154, 207,209,320,321,324/2011 Page 6 ol'I I w, Loll a t U -e ng^afted to ensure that speedy compensation is afforded to the victims of an unfortunate accident and this has to be kept in mind. Testimony of PW-5 has to be thus viewed and examined i n this background. The whole purpose of sitting in this cantor was to go -to themarket to purchase the buffaloes and to come back with them in the same -vehicle. This is clear from the version of PW-5. 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 angle 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 wi the deemed articles; insurance company could thus not ward off its liability. The finding of the Tribunal on this count suffers r m no infirmity. o

¶4In 2009 ACJ 119 National Insurance Co.Ltd. Vs. Sarolainina I Ors. a similar situation has arisen; a vegetable vender was an a 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 bad been hired by him for the purpose of MAC APPEAL, Nos.154, 207,209,320,321,324/2011 Page 7 of'] I M It I U-1^ . . .. !R 0) ratuitous passenger transportation of his goods; he not being a g and nor a fare paid passenger insurance company was held liable. pt,, This court finds support from the ratio of this judgment delivered _E, by the Karnataka Bench. A reading of Section 147 of the Motor Vehicle Act in fact A -y has occurred to any C learly -shows that if the death or injur person including the owner of the goods or his authorized s liable. 'Y1 representative in the vehicle, insurance company i t case shows that the accident had Evidence in the presen occurred before the victim could reach the destination point to rchase their buffaloes. The vehicle had been hired by them only PU F for transporting the goods and they were travelling in this vehicle r this purpose which was the transportation of their goods; even though the goods were not in the v phicle when the vehicle met eeding to reach the with the accident but the vehicle was proc place of its destination., in such a scenario it cannot be said that Me victims were gratuitous or paid passengers. The vehicle i.e. -te 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. It is thus clear that the finding of the learned Tribunal on this count suffers from no MAC APPEAL Nos. 154, 207,209,320,321,324/2011 Page 8 of I I L M A, I , infirmity. Appeals of the insurance company are accordingly dismissed. 11`^

¶6The other three appeals filed by the claimants of the deceased victims are aggrieved by the fact that under the head of 'love and affection' compensation has been granted on a low -i t count. This is the only challenge.

¶7Claim Petition No.263/2010 - Asgar Ali was the deceased S vic tim; he was 40 years of age on the date of the accident. His minimum wages had been taken into account. He was married had a wife and three children. Loss of love and affection has been quantified at Rs . 10,000/-. All children were dependents. Keeping a in view the ratio of the judgment of this Court in the case of CE Kaflash Kaur & Anr. Vs. New India Assurance Co. Ltd., MAC APPEAL No.318/2008 decided on 24.3.2009, the amount awarded 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 love and affection which would have been showered upon them by the deceased. They were in their growing and formative years when they lost out on these blessings on account of the death of their father. The amount awarded under the head of 'love and affection' is accordingly enhanced MAC A-PPEAL Nos. 154, 207,209,320,321,324/2011 Page 9 of I I I Hazari courLs, Delhi - 1100,54

1.1 "Is Hazari co. Urts, Delhi .- 110054 I NA I _C_ s 1\4 from RS. 10 , 000/- to Rs.1,00,000/-. The Award is modified on this score only. S. Claim Petition-No.260/2010-Deceased was Sattar; he was 40 years of age; his minimum wages have been taken into account; benefit of future prospects has been given. 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 love and affection' in claim petition no.263/2010 'loss 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 third claim petition is claim -petition No.262/2010. Deceased Babu Rain was also 40 years of age; his minimum wages have been taken into account; benefit of future prospects has been granted. In this case also the victim was married and he had a wife, two minor children. In view of the enhancement of the ;p-arded amount under the head of 'loss of love and affection' in aw J^Q -ion no.263/2010 'loss of love and affection' in this case claim petili is also enhanced from Rs.10,000/- to Rs . 1 , 00 , 000/-, This is the only modification made. in favour of the The statutory amounts be released

¶10be released to the insurance company. The awarded amount MAC A PEAL Nos.154,207,209,320,321,324/2011 Page 10 of'11 MAC APPEAL Nos. 154, 207,209,320,321,324/2011 Page 11 Of I I n igi V claimants in terms of the directions contained in the Award date I d ^5,11.2010-All the appeals are disposed of. SEPTEMBER 27, 2011

INDERMEET KAUR, J. nandan