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New India Assurance Co. Ltd. Vs. Surjit Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 236 of 1977
Judge
Reported inI(1984)ACC139; [1986]60CompCas58(All)
ActsMotor Vehicles Act, 1939 - Sections 95(2)
AppellantNew India Assurance Co. Ltd.
RespondentSurjit Kaur and anr.
DispositionAppeal allowed
Excerpt:
- .....claim any compensation.10. opposite party no. 4 took pleas identical to the pleas raised by the owner, opposite party no. 3.11. opposite party no. 5 denied its liability for any compensation as the deceased was not travelling either in the course of employment or in pursuance of a contract of employment.12. the tribunal held that the accident took place due to the rash and negligent driving of both the trucks. the tribunal repelled the legal pleas raised by opposite party no. 5. it held that the claimant is entitled to rs. 24,000 as compensation. the tribunal made an award for rs. 24,000 against opposite party no. 5 along with interest at 4% per annum from the date of the petition till the date of payment. the claim was dismissed against the other opposite parties. the parties were.....
Judgment:

O.P. Saxena, J.

1. This is an appeal under Section 110D of the Motor Vehicles Act, 1939, against the award dated February 21, 1977, made by the Motor Accidents Claims Tribunal, Naini Tal (District Judge, Naini Tal).

2. The facts giving rise to this appeal are that on August 8, 1974, at 10.30 a.m. on the Haldwani Lal Kaun Road, within the limits of village Durga Bhagwanpur, P.S. Haldwani, an accident took place in which truck No. USI2385 and truck No. USW 619 collided with each other. Truck No. USI 2385 was on its way from Haldwani to Bareilly. Truck No. USW 619 was coming from the opposite direction. Surjit Singh, aged 45 years, was travelling in truck No. USI 2385. As a result of the accident, the door was opened and he was thrown out. Truck No USI 2385 was also upturned. Surjit Singh received severe injuries and died as a result of the same.

3. Opposite party No. 1, Manjit Singh, is the owner and opposite party No. 3, Govind Singh, is the driver of the truck No. USI 2385.

4. Opposite party No. 2, Sardar Habeli Singh, was the owner and opposite party No. 4, Prahlad, was the driver of truck No. USW 619.

5. Opposite party No. 5, New India Assurance Co. Ltd., was the insurer of the trucks.

6. On February 7, 1975, Smt. Surjit Kaur filed a petition claiming a sum of rupees one lakh as compensation. It was said that the accident took place due to the negligence of the drivers of both the trucks.

7. The petition was contested by opposite parties Nos. 1, 2, 4 and 5.

8. Opposite party No. 1 pleaded that the accident took place due to the rash and negligent driving of truck No. USW 619 and there was no rashness or negligence on the part of the driver of truck No. USI 2385. It was also said that the deceased jumped out of the window and at the same time the truck overturned. The amount of damages claimed has also been assailed.

9. Opposite party No. 2 alleged that the accident took place due to the rash and negligent driving of truck No. USI 2385 which was overloaded. It was said that the deceased was not entitled to travel in the truck and if he did so, he could not claim any compensation.

10. Opposite party No. 4 took pleas identical to the pleas raised by the owner, opposite party No. 3.

11. Opposite party No. 5 denied its liability for any compensation as the deceased was not travelling either in the course of employment or in pursuance of a contract of employment.

12. The Tribunal held that the accident took place due to the rash and negligent driving of both the trucks. The Tribunal repelled the legal pleas raised by opposite party No. 5. It held that the claimant is entitled to Rs. 24,000 as compensation. The Tribunal made an award for Rs. 24,000 against opposite party No. 5 along with interest at 4% per annum from the date of the petition till the date of payment. The claim was dismissed against the other opposite parties. The parties were directed to bear their own costs.

13. The claimant respondent has submitted to the award and has not filed any appeal against the dismissal of the claim against opposite parties Nos. 1 and 3, the owners of the two trucks.

14. The opposite party No. 5 has come in appeal.

15. We have heard the learned counsel for the parties and have gone through the record.

16. At the outset we refer to Section 95(2)(a) of the Motor Vehicles Act, which provides as below:

'(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely- (a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act; 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.'

17. Deceased, Surjit Singh, was not travelling in truck No. USI 2385 either in the course of employment or in pursuance of a contract of employment. He was not entitled to travel in a goods vehicle not meant for carrying passengers on hire or gratuitously. In view of the provisions of Section 95(2)(a) of the Motor Vehicles Act, the insurer is not liable for the death of a passenger travelling in a goods vehicle either on hire or gratuitously. We may refer to Indian Mutual General Assurance Society Ltd. v. Manzoor Ahzan [1977] ACJ 85 (Cal) and Janab Abdul Jabbar Sahib v. Muniammal alias Peddakkaiya [1981] ACJ 543 (Mad).

18. The liability of an insurer is for the purpose of indemnifying the owner. Where no award is made against the owner, the insurer cannot be made liable. In this case also, no award was made against opposite parties Nos. 1 and 3, the owners of the two trucks, and, as such, the insurer, opposite party No. 5, could not be made liable as held in Abdul Ghafoor v. New India Assurance Co. Ltd., AIR 1980 All 410 (decided by one of us, K.N. Singh J.).

19. In view of the above legal position, the award inside by the Tribunal is liable to be set aside.

20. The appeal is allowed and the award is set aside. In the circumstances of the case, there shall be no order as to costs.


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