Mohan Singh & Another v. Nand Ram And Others S

Dev Darshan Sud, J.

This appeal has been preferred by the owner and driver of Mini Truck No. HP-49-0403, which was involved in an accident on 21.11.2000 at around 8 P.M resulting in the death of Het Ram, who was traveling in the vehicle. It is undisputed before me that the truck is a tempo/mini truck and appellant No. 1 is the owner and appellant No. 2 is the driver. The factum of accident is also not disputed.

In appeal, learned counsel appearing for the appellant has questioned the legality of apportionment of liability on the owner on the ground that deceased was not a gratuitous passenger. His alternate submission is that the evidence on record clearly establishes that vehicle was not being plied in violation of the conditions of the insurance policy as the owner had never authorized the driver to undertake any such activity.

Before considering the pleas urged, the facts as pleaded may be considered. The claimants-respondents are the father and mother of the deceased. It is pleaded by them that on 21.11.2000 at around 8 P.M when the truck reached near Sojha, it met with an accident because of the rash and negligent driving of Paras Ram, appellant No. 2. Their son died on the spot and he was removed to PHC Nagwain where he was declared dead by the Medical Officer on duty. Autopsy was conducted confirming his death because of the accident. Compensation of Rs. 10 lacs was claimed.

In reply, the appellants (respondents No. 1 and 2 before the trial Court) denied the allegations of regarding rash or negligent driving and pleaded that the accident was caused because of the sudden mechanical failure of the brakes in the vehicle. It was pleaded that the deceased was traveling as care taker of the goods and it was respondent No. 3 the Insurance Company which was liable to pay compensation.

Respondent No. 3, Insurance Company, took a specific stand that the vehicle was being plied in contravention of the insurance policy and was being used for the purpose of ferrying a marriage party consisting of 25-30 persons, therefore, the Company was not liable.

The learned Tribunal, on the evidence on record, concluded that the vehicle was being used in contravention of the terms of the insurance policy. The mini-truck/tempo was being used for ferrying passengers whereas the insurance policy Ext.RC did not cover such liability. The carrying capacity of the vehicle was one driver and two loaders.

The evidence on record consists of Ext.PA which is the First Information Report lodged by one Dumanu Ram, PW5. It states that on 21.11.2000 the Barat party was proceeding from Sansui to Kigas. There were 60-70 Baratis who were traveling in two vans, one jeep and tempo bearing No. HP-49-0403 (the vehicle involved in the accident), in which the deceased was traveling. He was also traveling in the tempo. He corroborates the factum of the death of Het Ram in the accident and states in cross examination that there were 10-12 other people who were traveling in the tempo, some were sitting in the cabin and some were sitting in the front. RW3 Kushal Ram, who carried out the investigation, found that a barat party consisting of 30-40 people was traveling in the vehicle. He admits that luggage of the baratis and the deceased was also being carried in the tempo. PW1 has proved on record the First Information Report, Ext.PA PW3 is the father of deceased and he admits in cross examination that the tempo was carrying baratis at the time when it met with the accident.

Learned counsel appearing for the appellant urges that it is the Insurance Company which is liable as the tempo was not ferrying the Barat in contravention of the insurance policy, but the deceased was traveling as the owner of goods to load and unload his goods. For this purpose, he places reliance on statements of RWs 1 and 2 (both the appellants herein). RW1 says that the vehicle was insured with respondent No. 3. He had instructed him not to carry the passengers as the vehicle is goods carrier. On the day of accident, the vehicle had been hired by one Dumnu and deceased was to bring the marriage articles from Sohja to Panarsa and the freight was fixed at Rs. 400/-. RW2 repeats the same in his testimony. I cannot accept this evidence. The evidence of one of the Baratis PW5 Dumnu Ram and PW3 Nant Ram, father of deceased, is clear and unequivocal. This is corroborated in all material particulars by the First Information Report. I cannot persuade myself to hold that the accidental vehicle was not carrying baratis. Learned counsel refers to the judgment of the Supreme Court in National Insurance Company v. Swarn Singh & others, 2004 (3) SCC 297 to urge that willful violation of the policy has to be established and it is only in those circumstances that liability can be fastened on the owner and driver. In the present case, mere infraction of the terms of policy without further establishing that such voilation is willful would not exonerate the Company. This plea requires to be rejected straight away. The overwhelming evidence on record is that the mini truck/tempo was being used for ferrying a Barat/marriage party. The submission that this was done deliberately by appellant No. 2 of his own volition cannot be accepted. There is no receipt produced on record to show the freight of Rs. 400/- either having been fixed or received by the owner. In these circumstances, I find no merit in this appeal, which is dismissed. The parties shall bear their own cost.

I hold that appellants No. 1 and 2 are jointly and severally liable to satisfy the award. The amount shall however first be paid/deposited by respondent No. 3 Insurance Company. Thereafter, the amount shall be recovered from respondents No. 1 and 2 by respondent No. 3 in execution. (See National Insurance Company Limited v. Parvathneni and another, (2009) 8 SCC 785).

January 01, 2010 (Dev Darshan Sud) (ms) Judge