P.C. Verma and B.S. Verma, JJ.
1. All these appeals arise out of the same motor accident and out of the common judgment and award passed by the Claims Tribunal and similar questions are involved for determination in these appeals, therefore, all the cases are being disposed of by this common judgment.
2. All these appeals have been preferred under Section 173 of Motor Vehicles Act, 1988, (in short 'the Act') against the judgment and award dated 24.4.2004 passed in M.A.C. Case No. 5 of 1999, Bhopal Singh v. Jalpac India Ltd.; M.A.C.P. No. 15 of 1999, Tulsi Karki v. Jalpac India Ltd.; and M.A.C.P. No. 1 of 1999, Liladhar Bhatt v. Jalpac India Ltd., by the Motor Accidents Claims Tribunal/District Judge, Nainital (in short 'the Tribunal'), whereby learned Tribunal has allowed the claim petition and has awarded Rs. 6,67,000 as compensation along with interest at the rate of 9 per cent per annum, as mentioned in the impugned order, in favour of claimant-respondent No. 4 Nandi Devi against opposite party No. 2-appellant in the first case under Section 166 of the Act. In the second case, claimant No. 1 Tulsi Karki has been awarded sum of Rs. 1,20,000 as compensation along with interest at the rate of 9 per cent per annum. In the last case, the claimants Liladhar Bhatt and Savitri Devi have been awarded compensation worth Rs. 1,20,000 along with interest at the rate of 9 per cent per annum, as mentioned in the impugned order. Aggrieved, the insurance company, appellant, has come up in appeal for setting aside the impugned judgment and award passed by the learned Tribunal mainly on the ground that the driver of the vehicle involved in the accident was not holding a valid driving licence nor he was appointed as such by the insured and that the vehicle involved in the accident was not legally transferred in the name of R.P. Bansal, who has not been arrayed as party and the Tribunal has failed to appreciate the evidence on record properly.
3. Brief facts, giving rise to the present appeal, are that in the night of 16/17.7.98 Shankar Datt Bhatt, Mahendra Singh Bisht and Hayat Singh Karki (the deceased) were coming back to Haldwani from Nainital by Maruti car No. WNW 3745, driven by one Rajeev Kumar Agrawal alias Ritesh Bansal alias Monti. The driver was driving the said car rashly and negligently and as soon as the said car reached near the bend of observatory, it fell into a ravine with the result that all the aforesaid persons Shankar Datt Bhatt, Mahendra Singh Bisht and Hayat Singh sustained grievous injuries and Shankar Datt and Hayat Singh died on the spot, while the third person Mahendra Singh succumbed to his injuries in the A.I.I.M.S., Delhi. The deceased Mahendra Singh was aged 28 years and it has been alleged that he was earning Rs. 1,00,000 per annum. Claim Petition No. 5 of 1999 has been filed for compensation for his death. Deceased Shankar Datt was aged 26 years and he was earning Rs. 5,000 per month. Claim Petition No. 1 of 1999 has been preferred by his dependants/legal heirs for compensation, while Claim Petition No. 15 of 1999 has been preferred by the legal heirs/dependants of the deceased Hayat Singh Karki alleging that deceased was aged 26 years and he was earning Rs. 5,000 per month.
4. The opposite parties in all the cases have taken similar stand in their written statements. The opposite party No. 1 has asserted in its written statement that the ill-fated Maruti car was registered in the name of Eithalbold Estate Pvt. Ltd. and the said vehicle was sent to the opposite party No. 1 on 13.8.1990 for use by the General Manager of the opposite party No. 1 at Haldwani. Subsequently, this car was sold to R.P. Bansal on 15.2.1994. After the sale of Maruti car, said R.P. Bansal is the owner of the vehicle and opposite party No. 1 has no concern with it. It has been alleged that Rajeev Kumar Agrawal is the driver of the said car, who was not an employee of the opposite party No. 1 and the opposite party No. 1 is not liable to pay compensation.
5. The opposite party No. 2 appellant has alleged in its written statement that the deceased Shankar Datt Bhatt and his two associates had taken the vehicle from the factory by force which fell in the khad and the vehicle was not being plied for the purpose of the factory and there was no relationship of driver and owner of the vehicle, therefore, the insurance company is not liable to pay compensation. It has been pleaded that compliance of Section 146 of the Act was not being adhered to, therefore, the appellant insurance company is not liable to pay compensation.
6. Opposite party Nos. 3 and 4, R.P. Bansal and Rajeev Kumar, have pleaded that they have been wrongly impleaded in the case.
7. On the pleadings of the parties, the learned Tribunal framed as many as five issues in the case. Ultimately, the Tribunal has held on issue No. 1 that the motor accident resulting into injuries and consequent death of the deceased was caused due to rash and negligent driving of the driver of ill-fated car, Rajeev Kumar Agrawal. The learned Tribunal took issue Nos. 2, 3 and 4 together and has come to the conclusion that the sale of the vehicle in favour of R.P. Bansal has no bearing in the case and the insurance policy stands in existence in the name of opposite party No. 1, therefore, the insurance company is liable to pay the compensation. Finally, learned Tribunal has awarded compensation in favour of the claimants as mentioned earlier.
8. We have heard learned counsel for the appellant, Mr. Tanveer Alam Khan as well as learned counsel for the respondents Mr. Anil Kumar Shah, Mr. G.B. Pandey, Mr. Neeraj Upreti, Mr. B.K. Gupta and have carefully gone through the entire material available on record including the impugned judgment and award.
9. It has been vehemently argued on behalf of the appellant that the vehicle was not legally transferred in the name of R.P. Bansal and he was not arrayed as party to the proceedings, therefore, the finding of the learned Tribunal is perverse and not sustainable. We have considered the submissions made by the learned counsel for this score.
10. The contention of learned counsel for the appellant that R.P. Bansal in whose name the vehicle was transferred was not made a party is totally misconceived. From the record, it is evident that R.P. Bansal has been arrayed as opposite party No. 3 in the claim petition and he has also filed his written statement. It is true that Maruti car No. WNW 3745 was insured in favour of Jalpac India Pvt. Ltd. and that this vehicle was sold in the name of R.P. Bansal. This fact is corroborated by the statement of Kundan Singh Mehta, DW 1, Jeewan Bahuguna, DW 2, who has been examined on behalf of insurance company appellant, has stated on oath that the said vehicle was insured for third party risk by the appellant company, but there was no insurance for passengers. It is on the strength of deposition of this witness, DW 2, it has been submitted that the insurance company is not liable to pay compensation for the injuries or death of the passengers travelling by the said vehicle. It is admitted by the insurance company that the vehicle was insured to cover third party risk. Insurance policy (paper No. 5-C/4) is on the record of M.A. Claim Petition No. 1 of 1999. From a perusal of the insurance policy, it is evident that vehicle was authorised to carry four persons, therefore, we are of the consistent view that the insurance company was liable to cover the third party risk in the present case, even if the owner or purchaser has not given any intimation of transfer of vehicle to the insurance company. We are supported in our view by the Hon'ble Apex Court verdict in the case of Rikhi Ram v. Sukhrania MANU/SC/0078/2003 : [2003]1SCR872 . In para 3 of the judgment, the Apex Court has, inter alia, observed that 'However, we would like to give further reasons that the liability of an insurer does not come to an end even if the owner of the vehicle does not give any intimation of transfer to the insurance company'. In para 7 it has been observed by the Hon'ble Apex Court that 'we hold that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act'. Similar view has been taken by Apex Court in the case of G. Govindan v. New India Assurance Co. Ltd. MANU/SC/0251/1999 : [1999]2SCR476 and it has been held in this case that since insurance against third party is compulsory and once the insurance company had undertaken liability to third party incurred by the persons specified in the policy, the third party's right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy. The facts of the present case are fully covered by the verdict of the Apex Court given in the aforementioned two cases. None of the contentions raised on behalf of the appellant insurance company is tenable.
11. It has been lastly contended on behalf of the appellant that the deceased persons were gratuitous passengers in Maruti car, therefore, in view of the case-law laid down by the Hon'ble Supreme Court in the case of Dr. T.V. Jose v. Chacko P.M. 2001 ACJ 2059 (SC), the liability of the insurer towards third party risk under the policy does not cover liability towards gratuitous passengers. We are in full agreement with the view taken by the Hon'ble Supreme Court in the aforesaid case. But in the instant case, the appellant insurance company has failed to prove on record that the deceased persons were gratuitous passengers. It is true that in its written statement, in the additional pleas, a plea has been raised by appellant that the deceased persons forcibly took away Maruti car No. WNW 3745 from the factory of respondent No. 1, but the appellant has failed to lead any evidence worth the name on this count. Had it been a factual position, at least F.I.R. to that effect would have been lodged by the respondent No. 1. The most important aspect of the case, which goes to the root of the matter, is that none of the witnesses produced from the side of the opposite parties including the appellant has said a single word that deceased persons forcibly took possession of the ill-fated Maruti car or that they were gratuitous passengers in the vehicle involved in the accident. There is no finding to that effect in the impugned judgment and the award.
There is clear-cut finding of the learned Tribunal that in the policy, it does cover third party risk for four persons. The learned Tribunal has found that the vehicle was not being driven for personal use of Rajeev Kumar, who was driving Maruti car on the fateful day, therefore, by no stretch of imagination, it can be said that the deceased persons were gratuitous passengers, especially when the stand taken by appellant insurance company is that the deceased persons had forcibly taken over possession of the vehicle from the factory of respondent No. 1. The contention of the appellant is not substantiated either by any documentary evidence or by oral evidence. In our view, the appellant cannot take benefit from the law laid down by Hon'ble Apex Court in the case of Dr. T. V Jose (supra). Mere plea cannot take the seat of proof. Had the appellant been able to prove that the deceased were gratuitous occupants in the car, the appeal was liable to be allowed on this ground alone; but the appellant has failed to substantiate its case before the learned Tribunal.
12. No other point was urged or argued before us in these appeals.
13. In the result, the appeals are devoid of merit and are liable to be dismissed.
14. All the three appeals, preferred by Oriental Insurance Co. Ltd., appellant, are dismissed. The judgment and award under appeal is upheld. No order as to costs.
15. The amount in deposit with this court be remitted to the Motor Accidents Claims Tribunal concerned, for being paid to the claimants.