Radheshyam Tiwari Vs. Sarita @ Taran Devi - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - thereafter, the respondent-wife left her matrimonial house on 7.7.1984 for good and therefore, the appellant-husband filed a petition for divorce under section 13 of the hindu marriage act. the learned single judge has also observed that it is well established that the evidence regarding adultery must be clear and cogent both as to the inclination opportunity and conduct so as to lead the irresistible inference that the offence has been committed. 6 ram gopal and he found that this witness is not reliable one.a.k. mathur, c.j.1. this is a letters patent appeal directed against the judgment of the learned single judge of this court dated 6.8.1988 passed in first appeal no. 174 of 1986, whereby the learned single judge has affirmed the judgment and decree passed by the district judge, durg. in civil suit no. 6-a/85 decided on 4.8.1988.2. the brief facts giving rise to this appeal are thus : the appellant was married to the respondent on 25.6.1981. after the marriage they lived together as husband and wife at durg. the marriage was not consummated as the respondent-wife was not keen for the same despite repeated demands by the appellant-husband. the appellant-husband came to know that the respondent-wife had illegitimate relations with her real uncle raghuvir prasad. the respondent-wife used to go away frequently to her father's place at kawardha where she ultimately filed a petition under section 125 of the code of criminal procedure against the appellant-husband for maintenance and that was compromised in 1983. thereafter, the couple had come back to durg to live together. in march, 1984, while living with the husband, the respondent-wife filed a petition again before the judicial magistrate first class, durg, under section 125 of the code of criminal procedure for maintenance. in that petition, the respondent-wife had prayed for maintenance and alternatively had asked that she may be permitted to stay from her husband on her own accord, she will not claim any maintenance. accordingly, that petition came to an end after recording the statements of the appellant-husband and respondent-wife. thereafter, the respondent-wife left her matrimonial house on 7.7.1984 for good and therefore, the appellant-husband filed a petition for divorce under section 13 of the hindu marriage act. in that divorce petition, two pleas were taken by the appellant-husband that the marriage between him and the respondent-wife was not consummated and secondly about the chastity of his wife. the trial court framed five issues and after recording the necessary evidence of both the parties, come to the conclusion that both the allegations have not been stand established. hence, the trial court dismissed the suit. aggrieved against that judgment and decree, the appellant-husband filed an appeal before this court and the learned single judge of this court also affirmed the judgment and decree of the trial court, by judgment dated 6.8.1988. hence this letters patent appeal.3. we have heard the learned counsel for the appellant and perused the records.4. the learned single judge after reviewing all the evidence again, has come to the conclusion that all the witnesses are deeply interested in seeking a finding on the issue of adultery against raghuvir prasad. the defendant-wife also raghuvir prasad both denied on oath the allegations of adultery. the learned single judge has also observed that it is well established that the evidence regarding adultery must be clear and cogent both as to the inclination opportunity and conduct so as to lead the irresistible inference that the offence has been committed. it is also observed that the proof of adultery is very rare. it is a matter of common knowledge that every possible attempt is made to keep it a secret. if the charge is sought to be proved by ocular testimony. court may look upon with disfavour such direct evidence as it is highly improbable that any person could be witness to such act. the learned single judge also examined the testimony of p.w.6 ram gopal and he found that this witness is not reliable one. likewise, the statement of p.w.2 rekhabai, a child witness aged about 8 years, is also vague. likewise the statement of shyam pyari bai that on raghuvir prasad's request, she gave one of her rooms to him for sleeping during night and raghuvir prasad occupied the room with the present defendant-respondent. on over all consideration of statements, the learned single judge found that the evidence of witnesses do not inspire confidence. therefore, in face of concurrent finding of fact of both the courts below it is not open for us to reverse the finding as we do not find any compelling reason for doing the same.5. so far as the second ground of non-consummation of marriage is concerned, mr. m.l. jaiswal learned counsel for the appellant, has not pressed this because he realised that this ground is also very shaky.6. hence, we are of the opinion that in view of the concurrent findings of fact of both the courts below, there is no ground to interfere in this appeal and the same is dismissed. no order as to costs.