Co., Ltd. Vs. Rattani & Ors.  INSC 2224 (18 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7399 OF 2008 (Arising
out of SLP (C) No. 1575 of 2007) National Insurance Co. Ltd. .... Appellant
Versus Rattani and others ..... Respondents
is before us aggrieved by and dissatisfied with the judgment and order dated
31st July, 2006 whereby and whereunder an appeal preferred by it was dismissed
in limine by the High Court of Punjab and Haryana at Chandigarh stating :- "
For the reasons in paras 43 & 44 of the award of the Tribunal, we find no
ground to interfere in this matter.
we would have remitted the matter back to the High Court as the appeal of the
appellant under Section 173(1) of the Motor Vehicles Act 1988 (for short `the
Act) has not been considered on merit, but, keeping in view the fact that the
respondent Nos. 1 to 6 being mother, brothers and sisters of the deceased
having been awarded a total amount of compensation of Rupees one lac forty
thousand only, we chose to hear the parties on merit.
accident took place on 15th May, 2002 when deceased Sunil Kumar alongwith other
injured persons, were travelling as members of a marriage party in a Tata 407
vehicle bearing registration No. HR-39-9869.
Indisputably it was a
goods vehicle. The first information report was lodged in relation thereto
wherein the driver of the vehicle was made an accused.
claim petitions were filed by the heirs and legal representatives of the
deceased as well as by the injured before the Motor Vehicles Claims Tribunal,
In the claim
petition in question, the relevant portion of the claim form was filled up as
under :- "Was the person in respect of the whom compensation is claimed,
traveling in the motor vehicle involved in the accident, if so, give the name
of station and start of journey and its destination? Yes, the deceased Sunil
Kumar alongwith others was traveling as a Barati in the Tata 407 being driven
by the respondent no.1 and they were returning after attending the marriage
function from village Jharli to Kusumbi."
Against the column
`cause of accident with brief descriptions' it was stated:- "Brief facts
of the accident are that the deceased Sunil Kumar alongwith others was
traveling in the capacity as Barati in Tata 407 in question and after attending
the marriage function were returning from Jharli to village Kusumbhi in the
Tata 407 which was being driven by the respondent no.1.
The vehicle was being
driven rashly, negligently and at a very high speed and inspite of warning to
the respondent no.1 to drive the vehicle slowly the respondent no.1 continued
driving rashly and negligently and on 15.5.2002 at about 6.30 PM when the
vehicle after crossing Railway Phatak of Dhalwas and were going towards
Sehlanga due to rash and negligent driving of respondent no. 1, the respondent
no.1 lost control on the vehicle resulting to turn turtle and several persons
suffered grievous injuries and deceased Sunil and one Photographer named Hazari
died at the spot. On the statement of Rameshwar son of Akhey Ram, r/o. Mundhal
Khurd, one of the eye witness and traveling as Barati FIR No. 98 dated
16.5.2002 was lodged against the respondent No.1, which contains the detailed
manner of accident how it took place and be read as part of this petition. The
respondents being the driver, owner and insurer, are jointly and severally
liable to pay compensation to the petitioners."
a reference has been made to the first information report bearing No. 98 dated
16th May, 2002, which was lodged against the driver, first respondent in the
claim petition, we may also notice the relevant portion of the contents thereof
from the award of the Tribunal.:- "...He referred to the contents of FIR
Ex. P2 wherein it is mentioned that all the members of marriage party were the
occupants of the four wheeler and there was no mention that dowry articles or
some furniture etc. were loaded in the vehicle."
are not oblivious of the fact that ordinarily an allegation made in the first
information would not be admissible in evidence per se but as the allegation
made in the first information report had been made a part of the claim
petition, there is no doubt whatsoever that the Tribunal and consequently the
appellate courts would be entitled to look into the same.
in their depositions, the claimants raised a new plea, namely that the deceased
and the other injured persons were travelling in the said truck as
representatives of the owner of the goods.
M.K. Dua, learned counsel appearing on behalf of the appellant would submit
that in the aforementioned situation there is no escape from the conclusion
that the deceased and the injured were members of a marriage party only and
could not have travelled in a goods vehicle as representatives of the owner of
Subramonium Prasad, learned counsel appearing on behalf of the owner of the
vehicle, on the other hand, submitted that it was for the insurance company to
prove breach of conditions of the insurance policy and the same having not
been done, the judgment of the Tribunal cannot be assailed.
In this connection
our attention has been drawn to the following findings of the Tribunal :-
"In the present case the evidence on record indicates that deceased Sunil
Kumar and other injured were occupying the offending vehicle as being
representative of the owner of the goods.
No evidence was
produced on behalf of the Insurance Company to the effect that deceased and
injured were gratuitous passengers.......All the injured petitioners were cross
examined at length but nothing useful to the case of Insurance Company could be
exacted from them. They deposed that for carrying members of marriage party
there was one bus. Hence it is observed that Insurance Company failed to prove
that insured had violated the terms and conditions of the Insurance Policy.
Deceased Sunil and injured Maru and Rameshwar were not gratuitous passengers in
the offending vehicle being representative of the owner of the goods."
we would not have entered into the realm of appreciation of evidence but as the
High Court failed and/or neglected to do so, we have no other option but to
undertake the job of the High Court. The first information report which was
brought on record, clearly proceeded on the 7 basis that the deceased and the
other injured persons were members of the marriage party.
if the submission of Mr. Subramonium Prasad that in the truck the goods offered
by way of gift by the bride party were being transported is correct, the
deceased and others could not have become the representatives of the owner of
the goods. Even otherwise in view of the averments made in the claim petition
and the first information report the said contention cannot be accepted.
Furthermore in their
depositions the witnesses examined on behalf of the claimants themselves stated
that about 30 - 40 persons were travelling in the tempo truck. All 30 - 40
persons by no stretch of imagination could have been the representatives of the
owners of goods, meaning thereby, the articles of gift.
question as to whether burden of proof has been discharged by a party to the
lis or not would depend upon the facts and circumstances of the case. If the
facts are admitted or, if otherwise, sufficient materials have been brought on
record so as to enable a court to arrive at a definite 8 conclusion, it is
idle to contend that the party on whom the burden of proof lay would still be
liable to produce direct evidence to establish that the deceased and the
injured passengers were gratuitous passengers.
hereinbefore, the First Information Report as such may or may not be taken into
consideration for the purpose of arriving at a finding in regard to the
question raised by the appellant herein, but, when the First Information Report
itself has been made a part of the claim petition, there cannot be any doubt
whatsoever that the same can be looked into for the aforementioned purpose.
admission made in the pleadings, as is well-known, is admissible in evidence
proprio vigore. We, thus, are of the opinion that the Tribunal as also the High
Court committed a serious error in opining that the insurance company was
Reliance placed by
the learned counsel on a decision of this Court in National Insurance Co. Ltd.
v. Baljit Kaur and Others [(2004) 2 SCC 1] is misplaced. The question which
arose for consideration therein was as to whether the words "any
person" shall include a gratuitous passenger despite 9 the amendment made
in Section 147 of the Act by reason of the Motor Vehicles (Amendment) Act,
Following New India
Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223], it was categorically held:
"20. It is,
therefore, manifest that in spite of the amendment of 1994, the effect of the
provision contained in Section 147 with respect to persons other than the owner
of the goods or his authorized representative remains the same.
Although the owner of
the goods or his authorized representative would now be covered by the policy
of insurance in respect of a goods vehicle, it was not the intention of the
legislature to provide for the liability of the insurer with respect to
passengers, especially gratuitous passengers, who were neither contemplated at
the time the contract of insurance was entered into, nor was any premium paid
to the extent of the benefit of insurance to such category of people."
In National Insurance
Co. Ltd. v. Cholleti Bharatamma and Others [(2008) 1 SCC 423], this Court
"27. The learned
counsel appearing for the respondent, submitted that from the aforementioned
finding, it is evident that the respondent was travelling as the owner of the
10 goods. We do not think that the said submission is correct. PW 2, in his
"I am doing
tamarind business. I witnessed the accident which took place about 3 years back
at about 6 a.m. at Borrampalem junction beyond Talluru. At the time of the
accident I was in the crime lorry by the side of the driver. Myself and 6
others were carrying tamarind in that lorry belonging to us. We boarded the
lorry along with our load of tamarind at Dharamavaram to go to Rajanagaram. We
were selling the tamarind at Rajanagaram in retail by taking the tamarind there
in our lorry from our village of Dharamavaram."
28. The Tribunal,
therefore, correctly recorded that according to PW 2, he was travelling with
his goods as owner thereof and not the deceased."
We, therefore, in the
facts and circumstances of the case, have no hesitation to hold that the
victims of the accidents were travelling in the truck as gratuitous passengers
and in that view of the matter, the appellant herein was not liable to pay the
amount of compensation to the claimants.
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside in so far as the liability of the appellant herein is concerned. The
appeal is allowed. However, in the facts and circumstances of the case, there
shall be no order as to costs.