United India Insurance Company Limited And Ors vs Chokhi And Ors

These five miscellaneous appeals have been preferred by the appellant United India Insurance Company Limited for assailing the judgment-cum-award dated 24.04.2003 passed by the learned Motor Accident Claims Tribunal, Udaipur in separate claim applications filed by the respective claimants seeking damages on account of death of Ratna, Sukha, Heeralal and Meghraj and injuries to Baluram in a road accident, which took place on account of overturning of the dumper No.RSJ 2522 because of rash and negligent driving by its driver. The dumper was insured with the appellant insurance company. The Tribunal accepted the claim applications, quantified the dmanages and held that the owner and driver of the insured vehicle as well as insurance company jointly and severally liable to satisfy the award by its common judgment-cum-award dated 24.04.2003, which is assailed in these appeals.

Mr. Sanjeev Johari, learned counsel representing the appellant insurance company, vehemently and fervently urged that the deceased persons were travelling in the dumper as gratuitous passengers. As many as 25 to 30 people were being plied in the dumper, which was being used to transport people and not goods and hence, the same was being used in contravention of the policy's conditions. The insurance company did not cover the risk of the passengers travelling in the commercial transport vehicle and as such, the insurance company was not liable to indemnify the claims. He, thus, urged that the impugned award is bad in the eyes of law to the extent, the appellant insurance company was held jointly liable to satisfy the award with the owner and the driver.

Per contra, learned counsel representing the respondents, vehemently and fervently opposed the submissions advanced by Mr. Johari. They urged that the insurance policy, which was proved on record of the claim proceedings, clearly depicts that an amount of Rs.60 was charged by the insurance company towards coverage of 4 labourers in the dumper. The learned Tribunal formulated specific issue in this regard and held that the insurance company while issuing the policy had charged a premium of Rs.30/- for the driver and cleaner and Rs.60/- for the 4 labourers and hence, it was liable to cover the risk of the four deceased persons. They further submitted that no evidence was led by the insurance company to show that as many as 25 to 30 people were travelling in the dumper or that the same was being used for transporting passengers. They, thus, urged that the Tribunal was absolutely justified in accepting the claims and holding the insurance company and the owner and driver of the dumper responsible to satisfy the award.

In rejoinder, Mr. Sanjeev Johari referred to the charge-sheet Ex.1, wherein it is mentioned that as many as 20 to 25 people were sitting in the dumper when it overturned and thus, as per him, it can safely be assumed that the dumper was being used for transporting passengers and thus, there was a clear breach of policy conditions. He, thus, urged that the use of the insured vehicle in contravention of the policy conditions entitled the insurance company to be exonerated from the liability to indemnify the claimants.

I have given my thoughtful consideration to the submissions advanced at bar and perused the material available on record.

On a perusal of the evidence available on record, it is clear that the claimants clearly stated that 4 deceased persons i.e. Ratna, Sukha, Heera Lal and Meghraj and the injured Balu were engaged as daily waged labourers on the dumper in question. The witness Sunanda Acharya, being the owner of the dumper, admitted this fact in her cross-examination. The insurance company's witness N.A.W.2 Pukhraj Hingad did not make any assertion whatsoever in his testimony that 20 to 25 people were travelling in the dumper when the same overturned. No such suggestion was given to Smt. Sunanda Acharya as well in her cross-examination. Thus, there is no satisfactory evidence available on record of the case, which can satisfy the court that the dumper was being used for transporting passengers in contravention of the policy conditions. As per the findings recorded by the Tribunal in the impugned judgment, the insurance company had charged a sum of Rs.60/- as premium towards coverage of 4 labourers and this fact was not disputed by the insurance company's witness N.A.W.2 Pukhraj Hingad. Rather, in his cross-examination, he admitted that the policy had been issued for covering the risk of one driver, one cleaner and four labourers, employed by the owner. Manifestly, thus, the liability of the insurance company to cover the risk of 4 labourers cannot be denied.

In this background, the impugned award cannot be questioned to the extent, the accident claims preferred on behalf of the family members of the deceased labourers were accepted holding the insurance company, owner and driver jointly and severally liable to satisfy the award. However, to the extent of 5th labourer Baluram, who received injuries in the accident, the insurance company cannot be held liable to satisfy the award because insurance coverage was only for 4 labourers.

As a result, I find no merit in the Appeal Nos.670/2003, 639/2003, 661/2003 and 746/2003, which are hereby dismissed. However, Appeal No.662/2003 (United India Insurance Co. Ltd. Vs. Baluram @ Valuram & Ors.) is allowed and the impugned award is modified by exonerating the insurance company from liability of satisfying the award. However, the liability of the owner and driver of the offending vehicle to reimburse the claim of Baluram @ Valuram is affirmed.

The record be returned to the trial court.