New India Assurance Co. Ltd. Vs. Dhanurjeya Khosla and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/532396
SubjectInsurance;Motor Vehicles
CourtOrissa High Court
Decided OnApr-05-1988
JudgeS.C. Mohapatra, J.
Reported in2(1988)ACC323
AppellantNew India Assurance Co. Ltd.
RespondentDhanurjeya Khosla and ors.
Cases Referred(Omana and Ors. v. David and Ors.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. s.c. mohapatra, j.1. insurer is the appellant under section 110-d of the motor vehicles act, 1939 (hereinafter referred to as the 'act'). owner of the vehicle had entered contest and has also appeared in this appeal. there is no allegation of collusion of the claimants and the owner. accordingly, insurer has right to challenge the award only on the grounds available under section 96(2) of the act.2. in this appeal there is no dispute that the deceased was moving in the truck oru 7783 on 13-2-1982 when she full out of the truck and sustained fatal injuries to succumb in the hospital on 17-2-1982 she was a daily labourer engaged to load earth on the truck to be brought to the work-site while returning on the truck with morum with others, the truck faced with the accident negligence in driving the vehicle and the compensation awarded is not in dispute. the only dispute is that the insurer is not liable since the deceased was not engaged by the owner and as such she was only a gratuitous passenger in the truck and the insurer is not liable. 3. the policy (ext. a) discloses that premiurn has been paid covering the risk in respect of four coolies, driver and cleaner. deceased who was to load earth on the truck to be carried was a coolie. accordingly, on the plain reading of the policy, there is no doubt that the insurer is liable for the compensation awarded.4. mr. p. roy, the learned counsel for the appellant submitted that the coolies engaged by the owner would only be covered and on the evidence it being clear that the deceased was engaged by respondent no. 1 and not the owner, the insurer would not be liable.5. several decisions were cited by mr. p. roy in support of his submission that insurer would not be liable for injuries to passengers in a goods vehicle. they are:(a) 1972 acj 295 (clive insurance co. ltd. and ors. v. jogendra singh and anr.);(b) 1976 acj 426 (the united india fire and general insurance co. ltd. and anr. v. mrs. savar kanwar and ors.);(c) 1977 acj 58 (nimayi chand mohapatra and ors. v. kartika chandra sahu and ors.);(d) 1984 acj 653 (united india insurance co. ltd. v. abdul munaf majur hussain momin and ors.);(e) 1984 acj 680 (oriental fire and genl. insurance co. ltd. v. p. parvathamma and ors.);(f) 1985 acj 780 (new india assurance co. ltd. v. budhai bewa and ors.);(g) 1986 acj 1155 (national insurance co. ltd. v. kailash kumari and ors.), and(h) 1987 acj 905 (omana and ors. v. david and ors.)all the decisions deal with liability of the insurer. however, except the decision of this court reported in 1985 acj 780 (supra), all other decisions relate to gratuitous passengers either in cars, jeeps or vehicle meant for carriage of goods. decision of this court is to the effect that the insurer is liable to cover the risk of a person engaged by the owner of the truck for loading and unloading goods.6. in the present case, the deceased was moving in the truck as a coolie. she was not a gratuitous passenger. the policy covered the risk of four coolies. no evidence has been led that the coolie employed by the owner of the vehicle is only covered under the policy. in the circumstances, in the absence of any evidence to give restrictive meaning to the term of the policy, i am inclined to hold that the deceased was covered under the policy and the insurer is liable to pay the compensation.7. in the result, the appeal is dismissed. no costs.
Judgment:

S.C. Mohapatra, J.

1. Insurer is the appellant under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act'). Owner of the vehicle had entered contest and has also appeared in this appeal. There is no allegation of collusion of the claimants and the owner. Accordingly, insurer has right to challenge the award only on the grounds available under Section 96(2) of the Act.

2. In this appeal there is no dispute that the deceased was moving in the truck ORU 7783 on 13-2-1982 when she full out of the truck and sustained fatal injuries to succumb in the hospital on 17-2-1982 She was a daily labourer engaged to load earth on the truck to be brought to the work-site While returning on the truck with morum with others, the truck faced with the accident Negligence in driving the vehicle and the compensation awarded is not in dispute. The only dispute is that the insurer is not liable since the deceased was not engaged by the owner and as such she was only a gratuitous passenger in the truck and the insurer is not liable.

3. The policy (Ext. A) discloses that premiurn has been paid covering the risk in respect of four coolies, driver and cleaner. Deceased who was to load earth on the truck to be carried was a coolie. Accordingly, on the plain reading of the policy, there is no doubt that the insurer is liable for the compensation awarded.

4. Mr. P. Roy, the learned Counsel for the appellant submitted that the coolies engaged by the owner would only be covered and on the evidence it being clear that the deceased was engaged by respondent No. 1 and not the owner, the insurer would not be liable.

5. Several decisions were cited by Mr. P. Roy in support of his submission that insurer would not be liable for injuries to passengers in a goods vehicle. They are:

(a) 1972 ACJ 295 (Clive Insurance Co. Ltd. and Ors. v. Jogendra Singh and Anr.);

(b) 1976 ACJ 426 (The United India Fire and General Insurance Co. Ltd. and Anr. v. Mrs. Savar Kanwar and Ors.);

(c) 1977 ACJ 58 (Nimayi Chand Mohapatra and Ors. v. Kartika Chandra Sahu and Ors.);

(d) 1984 ACJ 653 (United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain Momin and Ors.);

(e) 1984 ACJ 680 (Oriental Fire and Genl. Insurance Co. Ltd. v. P. Parvathamma and Ors.);

(f) 1985 ACJ 780 (New India Assurance Co. Ltd. v. Budhai Bewa and Ors.);

(g) 1986 ACJ 1155 (National Insurance Co. Ltd. v. Kailash Kumari and ors.), and

(h) 1987 ACJ 905 (Omana and Ors. v. David and Ors.)

All the decisions deal with liability of the insurer. However, except the decision of this Court reported in 1985 ACJ 780 (supra), all other decisions relate to gratuitous passengers either in cars, jeeps or vehicle meant for carriage of goods. Decision of this Court is to the effect that the insurer is liable to cover the risk of a person engaged by the owner of the truck for loading and unloading goods.

6. In the present case, the deceased was moving in the truck as a coolie. She was not a gratuitous passenger. The policy covered the risk of four coolies. No evidence has been led that the coolie employed by the owner of the vehicle is only covered under the policy. In the circumstances, in the absence of any evidence to give restrictive meaning to the term of the policy, I am inclined to hold that the deceased was covered under the policy and the insurer is liable to pay the compensation.

7. In the result, the appeal is dismissed. No costs.