Ashok Kumar vs Birendra Kumar Singh And Others

Ananda Sen, J

This appeal is directed against the judgment dated 12.03.2008, passed by the Additional District & Sessions Judge-cum-Motor Vehicle Claims Tribunal Judge, Lohardaga in Compensation Case No.129 of 1998, whereby the Motor Vehicle Claims Tribunal has dismissed the claim of the claimant-appellant under Section 166 of the Motor Vehicles Act.

This appeal is by the claimants for compensation.

The case of the claimant-appellant is that on 13.06.1996, he was going to Lohardaga from Ranchi by a Truck bearing Registration No. BR 14G 5151, some miscreants tried to stop the vehicle, but the driver did not stop the Truck and tried to flee in high speed. Meanwhile the miscreants hurled bomb on the truck which blasted on the front windscreen of the Truck, causing grievous injuries on claimant’s face. He was treated for a long period and because of the said injury he also became ugly. Further case of the claimant is that the truck was insured with the Oriental Insurance Company at the time of the accident. Thus, the claimant has claimed compensation amounting to Rs.3,00,000/- (Rupees Three Lakh) alongwith interest @ 18% per annum from the insurance company.

The owner of the Truck appeared before the Tribunal and submitted that the case is not maintainable and the amount of compensation is excessive. He admitted that at the time of accident, the truck was insured with the Oriental Insurance Company, hence he is not liable to pay the compensation amount to the claimant.

The insurance company also appeared before the Tribunal. The case of the insurance company is that the claim case was filed after lapse of three years of the occurrence and it is time barred. Further case of the insurance company is that the claimant was traveling in the offending truck as a gratuitous passenger, hence the owner of the truck has violated the terms and conditions of the insurance policy and, therefore, the insurance company is not liable to pay any compensation to the claimant.

The Motor Vehicle Claims Tribunal, Lohardaga, on the basis of the pleadings of the parties, has formulated the following issues:-

Is the case as framed maintainable?

Has the claimant valid cause of action for the case?

Was the claimant sustained permanent disablement in an accident arisen out of use of motor vehicle on the place of occurrence at the relevant time?

Is the claimant entitled for the claimed amount?

The claimant-appellant, in support of his claim, adduced three witnesses including himself, i.e., P.W.1 Suman Kumar, who accompanied the claimant on the date of occurrence and he has supported the case of the claimant. P.W.2 Ashok Kumar is the claimant himself and P.W.3 Dr. Shambhu Nath Choudhary, who had examined the claimant and had found multiple injuries on his face and chest. He proved his prescription but did not say anything about percentage of permanent disablement. The claimant also exhibited several documents. Ext.1 is the certified copy of the FIR, Ext.2 is Charge Sheet, Ext.3 is the photocopy of the driving license, Ext.4 is the insurance policy, Ext.5 is the prescription of the Doctor and Ext.6 is the medical certificate.

On the basis of the evidences led by the parties and after going through the records, the Tribunal came to the conclusion that the claimant could not establish the fact that at the relevant point of time he was travelling by the offending vehicle with the grocery goods and he has sustained permanent disablement because of the accident, which has arisen out of a motor vehicle and, thereby dismissed the claim case holding that the claimant is not entitled for any compensation from the opposite parties.

Being aggrieved by the aforesaid judgment of the Motor Vehicle Claims Tribunal, the claimant moved this Court by filing the instant appeal praying therein for compensation.

Learned counsel appearing for the claimant-appellant submitted that the Tribunal has erred in considering the FIR and the deposition of the witnesses which clearly proves that on account of usage of vehicle, the accident arose. Further, it was the specific case of the claimant, supported by another eye witness that the claimant was travelling with his grocery goods in the truck, thus, he cannot be considered as a gratuitous passenger. Learned counsel further submitted that the Tribunal has ignored the medical documents and the deposition of the doctor, which proves that the claimant was badly injured and his face was severely affected by the said injury.

Learned counsel for the Insurance Company submitted that the Tribunal has correctly dismissed the compensation case as the claimant failed to prove that he was travelling by the truck with his grocery goods, thus, as per the Insurance Company, the claimant was a gratuitous passenger of the truck. He submits that if any compensation is at all payable, the same has to be paid by the owner of the vehicle.

Considering the submissions of both the parties and going through the records, I find that P.W.1 in his statement on oath, has submitted that the claimant was travelling along with him in the truck, when some robbers tried to intercept the truck and hurled bomb. The driver of the truck did not stop until they reached Lohardaga. He has stated that because of the explosion, all got injured and the claimant sustained injuries on his face. After administering first aid at a local clinic, claimant was referred to Ranchi. P.W.2 who is the claimant himself has stated in the same line as was stated by the P.W.1. In his cross-examination, he stated that he has a shop, but there are no documents. He had gone to collect some articles for his shop. He stated that there were injuries in his body, however, there is no fracture, but one ear was damaged and there was injuries on the face. He submitted that there is no paper regarding his income. P.W.3 is the doctor who examined the claimant and found multiple injuries on his face and chest caused by splinters due to the explosion.

The issue, therefore, which falls for consideration is whether the claimant was a bonafide passenger of the truck, travelling as the owner of the goods and whether the claimant is entitled for any amount of compensation and if yes to what extent.

The analysis of the evidence clearly suggests in unequivocal terms that the claimant was a passenger, travelling in the truck in question. The issue is whether he was a bonafide passenger travelling as the owner of the goods or not.

P.W.1 Suman Kumar never stated that the claimant was travelling in the said truck along with any of his goods. P.W.2, who is the claimant, in his examination-in-chief has not stated that he was travelling as an owner of the goods, but, in cross examination at paragraph 4, he has stated that he had gone to bring materials for his shop. He stated that he and other owners were sitting near the driver. He has not stated that what are the materials he want to bring nor he had stated that he had taken the truck on hire. There is nothing in his statement to suggest that he had hired the truck and the truck was loaded with his goods. These are the only evidence, which is on record. Admittedly, the truck is a goods carrying vehicle and the evidence is not sufficient that the vehicle was hired by the claimant to carry his goods. The only fact, which is established is that he was a passenger in the goods carrying vehicle. Thus, I hold that the claimant was a gratuitous passenger in a goods carrying vehicle. Claimant being a gratuitous passenger in the goods carrying vehicle, the Insurance Company is not liable to indemnify the owner for the injuries sustained by the claimant.

Now the question is whether the claimant is entitled for any compensation or not. Admittedly, the claimant was a passenger in goods carrying vehicle, which was attacked by the robbers and a bomb was hurled. It is also evident that the claimant sustained injuries. P.W.3 the doctor has stated in his evidence that the claimant sustained multiple injuries on his face, neck and front of his chest. There were splinters present. Thus, there is no hesitation to hold that the claimant is entitled for compensation.

From the evidence of P.W.2 – the claimant, I find that the claimant has stated that he runs a shop and was earning Rs.5,000/- per month. He only stated that his capacity to earn has decreased. There is nothing on record that the claimant has become permanently disabled. Even the doctor at paragraph 5 of his evidence has stated that he cannot say how many parts are permanently disabled and the expense of his treatment. Thus, there is no material to suggest that as to what loss the claimant has sustained, but the fact remains that he sustained injuries and was under treatment. Since the claimant had sustained bodily injuries and mental trauma arising out of the accident, which involved use of motor vehicle, he is entitled to be compensated. Though there is no document on record as to how much he had spent, but considering the nature of injuries and the mental agony, which he had suffered, I am of the opinion that a lump sum amount of Rs.75,000/- would be a just amount which the claimant is entitled to.

As it has been held earlier that the Insurance Company is not liable to pay any compensation, because there was violation of the terms of policy as the claimant was a gratuitous passenger, it is the owner of the vehicle, who is to pay the amount of compensation.

Before proceeding further, it is relevant to take note of the fact that the owner had appeared before the Trial Court and in the present appeal, vide order dated 01.12.2013, a Coordinate Bench of this Court has held that the notice on respondent No.1-the owner of the vehicle is validly served.

Thus, I direct the respondent No.1-the owner of the vehicle to pay the amount of compensation of Rs.75,000/- to the claimant within 60 (sixty) days from today, failing which this amount will carry an interest @ 7% per annum from today till the same is paid or recovered.

This miscellaneous appeal stands allowed only to the aforesaid extent.