United India Insurance Company Limited Vs. Parpudi Krishnakumari and ors. - Court Judgment

Excerpt:
motor vehicles - party to insurance - section 149 of motor vehicles act, 1988 - claim before accidents claim tribunal regarding death of pillion rider of insured vehicle - insurance policy permitted vehicle to be used for domestic, business and pleasure purpose - person riding on pillion held to be third party to insurance. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - indeed, when the policy itself recognises that the seating capacity of the scooter is 1 +1, it is reasonable to, infer that the policy covers the pillion rider as well. this is a strong circumstance which improbabilises the case of the cross-objectors, even if ex. 11. in the result, for the above reasons, the appeal and the cross-objections fail and are accordingly dismissed.v.v.s. rao, j.1. one parupudi srinivasa rao, aged about 28 years was travelling on a scooter as pillion. the said scooter bearing no. ap 31 a 468 met with an accident as a result of rash and negligent driving of the person driving the scooter. said srinivasa rao died in the accident near yendada bus stop at k.m.stone no. 6/ 7. his wife, two minor children and mother filed o.p.no. 693 of 1992 on the file of motor vehicle accidents claims tribunal-cum-iii additional district judge, visakhapatnam. the claim was opposed by the insurance company. they also alleged that the vehicle was driven by srinivasa rao and that the insurance policy does not cover him. alternatively, it is alleged that the insurance policy does not cover risk of pillion rider on motorcycle. the amount claimed was also disputed. the claimants examined p.w.1 (wife of the deceased) and p.w.2 (mother of the deceased) and marked exs.a.1 to a. 13, including the insurance policy, as ex.a.11. the respondents examined r.w.1, assistant of the insurance company and rw2, owner of the scooter besides marking exs.b.1 to b.7. after framing the relevant issues, the tribunal recorded a finding that the accident occurred due to rash and negligent driving of the driver of the vehicle. on the question of compensation, the learned tribunal arrived at multiplicand at rs. 1500/- per month. on the date of accident the age of the deceased was determined as 28 years and applying the multiplier of 14, a total sum of rs. 1,68,000/- towards loss of annual dependency and an amount of rs. 15,000/-towards loss of consortium. feeling aggrieved by the award, the insurance company filed this appeal.2. the learned counsel for the appellant sri k.l.n. rao submits that as per ex.a11/b.4 policy pillion rider is not covered under the policy. he also would submit that as per the copy of the f.i.r. which is marked as ex.b.1 the deceased himself was driving the vehicle and therefore the policy does not cover the same. the also placed reliance on the judgments reported in surjit singh v. santosh kumari, 1989 acj 466, the-new india assurance co. v. marni ramana, : 1996(2)alt549 , and sada nirmala v. indrapaul singh, : 1997(2)alt275 . these submissions have been refuted by the learned counsel for the respondents sri murali lincoln.3. before appreciating the rival contentions, it is necessary to refer to ex.b.4, >policy. in the policy it is mentioned that seating capacity of bajaj chetak scooter is 1 +1. the limitations as to use of the vehicle are also mentioned in the policy. these are, the insured vehicle can be used only for social, domestic and pleasure purposes and for insured's business or profession. the policy does not, however, cover the use of the scooter for hire or reward or for organized racing, pace making, reliability trials, speed testing etc. it is nowhere specifically mentioned that the policy does not cover the pillion rider. indeed, when the policy itself recognises that the seating capacity of the scooter is 1 + 1, it is reasonable to, infer that the policy covers the pillion rider as well.4. insofar as ex.b.1 and/or a.4 copy of f.i.r. is concerned, the same is registered on information given by one parupudi venkata rao. it reveals that on 4.7.1990 at about 8.00 p.m. parupudi srinivasa rao, driving the scooter ap 31 a 468 with s. dhana koti (fifth respondent herein), the scooter mechanic and that he was driving the scooter in an intoxicated condition when the accident occurred at k.m. stone 6/7 at yendada. ex.a.4 was marked by p.w.1. the contents thereof were not proved by examining the person who recorded the f.i.r. or the inspector of police who investigated into the offence. the f.i.r. also contains the statements given by the sixth respondent herein, who is the owner of the scooter and the uncle of the deceased. he only gave opinion that srinivasa rao died when he was driving the scooter in intoxicated condition. in the absence of any proof of this, the statements made in the f.i.r. cannot be accepted. therefore, the contention of the learned counsel that the deceased was driving the scooter is, therefore, rejected.5. in surjit singh's case (supra), on the conclusion that the pillion rider was neither carrying for hire or reward the punjab high court held that policy does not cover passenger on the pillion. in marni ramana 's case (supra) this court placing reliance on sections 95(a) and 95(b)(i) of the motor vehicles act, 1939 and following the judgment of the supreme court in pushpabai v. ranjit g.& p. co., : [1977]3scr372 , held that gratuitous passengers, who are not carried for hire or reward cannot be considered as third party for the purpose of third party insurance. similar view was taken in sada nirmala's case (supra). these authorities, in the considered opinion of this court, cannot be taken as laying down law that pillion rider is not covered under the insurance policy at all times.6. the question in this case is whether or not pillion rider is covered as a third party under the policy depends on the terms/ additional terms of the policy and the legal provisions. as seen from ex.b.4, policy, seating capacity of the vehicle insured is 1+1 and though the driver is excluded, the policy does not specifically exclude the pillion rider. though the policy adumbrates the limitations as to use of the vehicle insured, the same does not specifically exclude the pillion rider. the theory that it is always possible for a pillion rider to pay hire or fare cannot always be true. indeed, the policy itself mentions that the vehicle can be used for domestic, business and pleasure purposes. therefore, when owner/driver of the vehicle uses the vehicle he can always take a member of his family, or wife or a servant or brother on the pillion and such pillion would be necessarily third party to the insurance.7. the view taken by punjab and haryana high court in surjit singh 's case (supra) and this court in marni ramana's case (supra) and sada nirmala's case (supra) that gratuitous passenger is not covered under the policy is no more res integra in view of the binding judgment of the supreme court in new india assurance co. ltd. v. satpal sing, : air2000sc235 , wherein it was laid down. under clause (ii) of the proviso to section 95(1) of the motor vehicles act, 1939 (for short 'the old act') the insurance policy was not required to cover liability in respect of the death of or bodily injury to persons who were gratuitous passengers of that vehicle. but the proviso to section 147(1) of the motor vehicles act, 1988 (for short, 'the new act') shows that it is a recast provision by placing the erstwhile clause (iii) as the present clause (ii). in other words, clause (ii) of the proviso to section 95(1) of the old act is totally non-existent in the proviso to section 147(1) of the new act. moreover, under section 147(2) of the new act there is no upper limit for the insurer regarding the amount of compensation to be awarded in respect of death or bodily injury of a victim of the accident. it is, therefore, apparent that the limit contained in the old act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle..... therefore, under the new act an insurance policy covering third-party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class.8. in view of the ratio in satpal singh 's case (supra), it cannot be said that being a gratuitous passenger, the deceased srinivasa rao is not covered under the policy. the learned counsel for the appellant did not raise any other submission.9. as noticed, the learned tribunal awarded a sum of rs. 1,83,000/- against the claim of rs. 2,50,000/-. the petitioners in o.p.no. 693 of 1992 filed cross-objections seeking enhancement of the compensation. the learned counsel for the respondents/ cross-objectors submits that the tribunal erred in fixing the multiplicand at rs. 1,500/-when the deceased being a tailor and income tax assessee and was earning not less than rs. 3,000/- per month. it is further stated that even in the cross-examination p.w.1 was suggested that the monthly income of the deceased would be rs. 2,000/-and not rs. 3,000/-. therefore, the respondents/cross-objectors seek enhancement on this ground.10. the evidence of p.w.1 is not placed before me. the tribunal came to a conclusion that the claim of p.w.1 - wife of the deceased is exaggerated. therefore, taking into consideration the skill of the deceased in stitching and the evidence on record, with regard to the age of the deceased, the tribunal fixed the multiplicand at rs. 1,500/- per month. further, in the petition filed by the cross-objectors they themselves claimed that the deceased was earning rs. 50/- per day. this is a strong circumstance which improbabilises the case of the cross-objectors, even if ex.a.2 and a.8, income tax assessment orders, are taken into consideration. in that view of the matter, the cross-objections are liable to be dismissed.11. in the result, for the above reasons, the appeal and the cross-objections fail and are accordingly dismissed. there shall be no order as to costs.