New India Assurance Company Ltd. vs Bhaurao

S.B. Shukre, J.—This appeal is preferred against the judgment and award passed in Claim Petition No.398 of 1995 on 19.12.2001 by the Motor Accident Claims Tribunal, Nagpur. The claim petition was filed u/s 166 of the Motor Vehicles Act, 1988 by the respondent No.1 against the respondent No.2 - owner of the offending vehicle, a truck bearing Registration No. MHG-6960, the appellant-the insurer of this vehicle and one Prakash Kumar-the driver of the said Truck, who was driving it at the time of accident, claiming compensation for the permanent disability sustained by him because of the injuries suffered by him in the accident with which the said vehicle met in the evening of 5.5.1995. At that time, the respondent No.1 claimed that he was travelling by the said truck as a labourer and that he had boarded it at Butibori as he was asked by the driver of the truck as to whether he would come on to the truck for the purpose of loading and unloading of the goods to which the respondent No.1 had consented. Initially, when the petition was filed by the respondent No.1, his case was that he had boarded the truck at Butibori because he wanted to go to village Gumgaon, his own village and the said truck was proceeding towards that village. Later on, the respondent No.1 amended his pleadings and contended that at the time of accident he was travelling by the said truck as a labourer and not as a gratuitous passenger. The accident had occurred due to dash given by the offending truck to another truck which was standing in stationary condition on Wardha road. In this accident, the injuries suffered by the respondent No.1 ultimately led to causing of permanent disability in him to the extent of 40%. The petitioner, therefore, sought compensation for the loss of earning medical expenses and other usual counts from the appellant and the respondent Nos.2 and 3.

The claim was contested by respondent No.2 - owner of the offending truck as well as by the appellant-the insurer of the offending truck. While respondent No.2 admitted ownership and insurance of the truck, she denied all the contentions of respondent No.1. The appellant accepted the ownership and insurance of the offending truck, but denied rest of the contentions of the respondent No.1. By way of specific pleadings, the appellant submitted that since the respondent No.1 was travelling by the offending truck as a gratuitous passenger at the time of accident, there occurred a breach of terms and conditions of the insurance policy and, therefore, it was not liable to pay any compensation to the respondent No.1.

The Tribunal framed in all four issues and after considering the evidence available on record and hearing the rival parties found that the appellant and respondent No.2 were jointly and severally liable to pay compensation of Rs.75,000/- together with 9% interest from the date of petition till realization to the respondent No.1 and accordingly delivered its judgment and award on 19.12.2001.

Being aggrieved by the same, the appellant is now before this Court in this appeal.

I have heard Mr.A.J.Pophaly, learned counsel for the appellant and Mr.Raju Dhoble, learned counsel for the respondent No.1. Nobody appeared for respondent Nos.2 and 3. With their assistance, I have carefully gone through the memo of appeal, impugned judgment, award and the record of the Tribunal. Now, the only point which arises for my determination is :

"Whether the judgment and award of the Motor Accident Claims Tribunal, Nagpur dated 19.12.2001 passed in Claim Petition No.398 of 1995 is vitiated due to non-framing of issue and non-recording of finding on a material aspect of the case, and if so, whether the matter is required to be remanded back to the Tribunal for a decision afresh ?"

Mr.A.J.Pophaly, learned counsel for the appellant has taken me through the defence taken by the appellant by way of specific pleadings in the written statement filed vide Exhibit-21 and submitted that the defence so specifically taken by the appellant has not been considered by the learned Member of the Tribunal in its proper perspective in view of the law laid down by the Hon''ble Apex Court in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, He further submitted that the learned Member ignored the law laid down in the said case of Asha Rani by which, the Hon''ble Apex Court had overruled the decision rendered by the Hon''ble Apex Court in the case of New India Assurance Company Vs. Shri Satpal Singh and Others, He, therefore, submits that such a judgment cannot be sustained in law and it needs to be held that the appellant is not liable to pay any compensation to the respondent No.1 as there is evidence to show that at the relevant time, the respondent No.1 was travelling as a gratuitous passenger in a goods carriage vehicle.

On the other hand, Mr.Raju Dhoble, learned counsel for the respondent No.1 has taken me through the evidence brought on record and submitted that the evidence adduced by respondent No.1 that he had boarded the offending truck on the request of his driver for the purpose of loading and unloading of the goods, has not at all been controverted by the appellant and, therefore, it has been duly proved by the respondent No.1 that at the relevant time, he was travelling by the offending truck as a labourer, and not as a gratuitous passenger. He, therefore, further submits that in view of the law laid down by the learned Single Judge of this Court in the case of National Insurance Co. Ltd., Diamond Chambers, 2nd floor, 18th June Road, Panaji-Goa Vs. Smt. Ashwini Balu Gaude and others it would have to be held that the insurer is liable to pay compensation.

Having regard to the rival arguments, it would be necessary for me to first consider as to how the defence set up by the appellant as regards breach of conditions of the insurance policy on account of travelling by respondent No.1 by offending truck allegedly as gratuitous passenger has been dealt with by the learned Member of the Tribunal.

It is seen from the impugned judgment and award that the learned Member has not framed any issue on this aspect of the matter although he ought to have been framed an issue to the effect-whether the insurance company has proved that the owner of the offending truck has committed a breach of terms and conditions of the policy on account of carrying the respondent No.1 in a goods carriage vehicle ? and if so, whether the insurance company is exempted from its liability to pay any compensation to the insured person ?

If such an issue had been framed by the learned Member, it would have enabled the parties, especially the appellant to lead appropriate evidence thereon and make an attempt to prove their respective stand. But, because of non-framing of the issue, and the issue pertains to material aspect of the defence taken by the appellant, the appellant has been deprived of the opportunity to prove its case. Therefore, the impugned judgment and award cannot be sustained in law.

It is further seen from the impugned judgment and award that the learned Tribunal instead of specifically dealing with the defence so taken by the appellant, has simply placed reliance upon the law laid down by the Hon''ble Apex Court in the case of Satpal Singh (supra) to find that the Insurance Company cannot be absolved of it''s liability despite the breach of conditions and carrying of a passenger in a goods carrying vehicle. It appears that the decision of the Hon''ble Supreme Court rendered in the subsequent case of Asha Rani (supra) was brought to the notice of the learned Member. This decision was of a larger Bench than the decision rendered in the case of Satpal Singh (supra). Besides, in the decision of Asha Rani, the Hon''ble Supreme Court in paragraph 30 of the judgment has specifically held that Satpal Singh''s decision was being overruled by observing thus :

"For the forgoing reasons, I am in respectful agreement with My Lord the Chief Justice of India that the decision of this court in New India Assurance Company Vs. Shri Satpal Singh and Others, has not laid down the law correctly and should be overruled."

Inspite of this, learned Member had the courage to say that unless and until earlier view was not overruled, the learned Member "bona fide" felt that earlier view still held the field. The learned Member went on to further observe that when two views are possible, one must be adopted in favour of the person who is entitled as a beneficiary on the basis of an enactment. I do not understand as to how, in view of the law laid down in the case of Asha Rani (supra), two views were possible at the time when the judgment and award under challenge were delivered.

So, what emerges from the above discussion is that it was absolutely necessary for the learned Member of the Tribunal to record a finding as to whether or not the appellant-Insurance Company had, true its stand, proved that at the relevant time the respondent No.1 was travelling by the offending truck, a goods carriage vehicle, as a gratuitous passenger. This finding would have further enabled the learned Member to consider application of the law laid down in the aforestated case of Asha Rani appropriately. Therefore, I agree with the learned counsel for the appellant that the learned Member has committed a serious illegality in not considering the defence taken by the appellant in it''s proper perspective. Now, framing of additional issue as per said defence of the appellant and it''s adjudication in accordance with law seems to be a necessity to subserve the cause of justice and the Tribunal is well equipped to do it. In the circumstances, I find that this is a fit case for remand to the Tribunal for a decision afresh in accordance with law after framing of additional issue, as indicated in the earlier part of the judgment.

Learned counsel for the appellant and learned counsel for the respondent No.1 have also referred to me few more cases covering points relating to liability for gratuitous passenger, extraordinary powers of the Hon''ble Supreme Court to direct the Insurance Company to pay compensation and recover the same from the owner of the vehicle and liability of the Insurance Company in respect of coolies travelling in a goods carriage vehicle. However, it is not necessary to consider these cases at this stage as the matter is being remanded to the Tribunal for a decision afresh.

The point thus answered as in the affirmative and the appeal deserves to be allowed.

A) The appeal is allowed and the impugned judgment and award are hereby quashed and set aside.

B) The matter is remanded to the Motor Accident Claims Tribunal, Nagpur for a decision afresh in accordance with law.

C) It is directed that the Tribunal shall frame additional issue on the lines suggested in the judgment and after considering the evidence on record, shall decide the issue together with the other issues already framed, in accordance with law.

D) Parties are at liberty to lead additional evidence only on the additional issue.

E) The Tribunal is requested to decide the matter as far as possible within six months from the date of appearance of the parties before it.

F) Parties are directed to appear before the Tribunal on 24th February, 2014.