United India Insurance Co. Ltd. vs Smt Gangu Potu Naik And Others on 11 April 1990

Bombay High Court
United India Insurance Co. Ltd. vs Smt Gangu Potu Naik And Others on 11 April, 1990
Equivalent citations: [1991]70COMPCAS410(BOM)
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT
Kamat J.

1. This appeal challenges the award dated June 30, 1986, made in favour of the original claimant, Smt. Gangu Putu Naik, in Claim Petition No.30 of 1981 by the Motor accidents Claims Tribunal at Panaji. Regard being had to the short controversy involved in this appeal, a brief reference to the facts may be useful.

2. Respondent No.1, Smt. Gangu (original claimant), instituted a claim petition on the averment that her son. Yoganand, aged about 28 years, died in an accident on the night of March 25, 1981. It is her case that the truck bearing registration number plate GDS 4020 was taken to Bombay a few days earlier for transportation of goods and the accident occurred on its return trip to Goa at a place called Ladfam, a village between Bicholim and Dodomarg. On a culvert, the truck dashed against the railings and then turned on its side with the result that the deceased, Yoganand, who was in the suffered injuries as a result of which he died instantaneously in the cabin itself. The said truck was driven at the relevant time by respondent No.2, Rajendra, and owned by respondent No.3, Surya Mahadev Gaonkar. On the basis that he was earlier working for Ciba and Co. and as a casual worker in the business of decoratrive illuminations was earning about Rs.1,000 a month. According to her, by this income he supporting her and his younger brother and sister. A claim for compensation made was Rs.2 lakhs.

3. In answer to this claim petition, respondent No.2, the driver, set up a plea, while not disputing the accident, that respondent No.3, owner, had sent the deceased as a casual helper on the truck on this trip. In so far as the cause of death is concerned, the driver set out that when the truck was about to collide against the railing on the culvert, the deceased, Yoganand, jumped out of the cabin as a result of which he came to die.

4. In so far as the written statement of respondent No.3, owner of the vehicle, is concerned, it was his case that he does not know the deceased, Yoganand, and the trip made by the driver to Bombay on March 17, 1981, was never authorised by him. According to him, he entrusted the truck to respondent No.2, driver, on March 16, 1981, to get the same inspected by the Directorate of Transport at Panaji, Goa, and when the truck did not return on the next day, his inquiry revealed that though the driver had got the truck inspected by the Directorate of Transport on 16th itself, without his knowledge and consent, at the instance of Rajesh Roadways, Margao, Goa, a transport company, the truck in question had left for Bombay on obtaining an advance of Rs.1,000 from Rajesh Roadways for transporting their goods. At any rate, the driver was not in his employment, says the owner.

5. In so far as the insurer is concerned, at whose instance the present appeal is now filed, the defence led is that the insurers cannot be saddled with any liability whatsoever in respect of the death of the deceased, Yoganand, as risk of such person was never required to be covered under the provisions of the Motor Vehicles Act nor was it covered by the policy under which the vehicle was insured at the relevant time.

6. Regard being had to the controversy involved in this appeal, it may not be necessary to make a reference to all the issues framed but suffice it to make a reference to issues Nos. 5 and 6 which read as under :

“5. Whether opponent No.2 proves that opponent No.1 is not employee of opponent No.2 and opponent No.2 is not liable to pay any compensation to the applicant ?
6. Whether opponent No.3 proves that the risk of the deceased was not covered by the policy ? ”
7. Further, regard being had to these issues, it is clear that the owner disclaimed his liability saying that the driver was not in his employment. That deceased, Yoganand, was a gratuitous passenger in the truck and this being so the insurer tried to disclaim its liability on the ground that no risk of gratuitous passenger is covered by the policy.

8. In the first place, it may be recorded that, on the basis of the evidence before the Tribunal, the compensation awarded to Smt. Gangu, the first respondent, is in the sum of Rs.40,000 with interest at the rate of 8% per annum from the date of institution of the petition to be paid jointly and severally by the insurer, the insured (owner) and the driver. Neither the driver nor the owner have challenged the award made. The factum of accident is indeed not challenged and much less can it be done so by the insurer. As mentioned earlier, the sole challenge is based on a point that no liability of a gratuitous passenger had been covered by the policy and, therefore, the appellant-insurer cannot be made liable to pay along with the owner and the driver.

9. When notice of this appeal was given to the first respondent, cross- objections have been lodged on her behalf by which respondent No.1 (original claimant) prays that the compensation be enhanced to Rs.2 lakhs as claimed in the original claim petition.

10. Since the factum of accident is not denied, it is not necessary to refer to the entire evidence. In view of the cross-objections filed, the evidence on behalf of the original claimant in so far as the income of the deceased, Yoganand, is concerned as spoken to By A.W. 1, Mukund Chodenkar, the attorney of the original claimant and otherwise the brother-in-law of the deceased, Yoganand, has to be looked into. He says that some time prior to March 17, 1981, respondent No.2, driver, had come to take the deceased, Yoganand, to go on the truck on a trip to Bombay and its return. He says that Yoganand was working for Ciba for some time before the accident and produced several letters of appointment, exhibit 25, collectively). In addition to the income by way of salary from Ciba and Co., he says that deceased, Yoganand, used to work for him for fixing decorative lights during the marriage season and festivities as a result of which he used to pay to Yoganand Rs.30 per day plus Rs.10 for food. He, however, mentions that this decorative lights business was available between December to May next and depending upon the marriages in the season, the work available would be between 10 to 15 days in a month.

11. The story of the deceased, Yoganand, working with Ciba and Co. is confirmed and fully corroborated by Vishnu Mahatme, A.W. 4, who claims to be the personnel officer (plant) working for Ciba and Co. According to him, Yoganand Naik was being recruited time and again as a temporary hand starting from the year 1978-79. He was taken in 1979-80 and there- after in 1980-81. The last time his tempoarary services were terminated according to him were on February 5, 1981, with the end of the packing season. According to records as on that day, Yoganand was getting a salary all inclusive of Rs.780 per month working as a packer.

12. This evidence, however, found favour with the learned Tribunal and regard being had to this evidence, the Tribunal awarded a flat compensation of Rs.40,000 to the original claimant.

13. In so far as the finding on issues Nos.5 and 6 is concerned, the Tribunal accepted the story of the original claimant that the fact of the driver having taken Yoganand on a trip to Bombay could not make him a gratuitous passenger but it must have been for obtaining services from him. The Tribunal also found that the driver was to meet all the expenditure of Yoganand in relation to his food, etc., on the trip and this being so, he had gone on the truck as a helper and, therefore, by no stretch of imagination could he be held as a gratuitous passenger. The story of the owner that the trip was not authorised or that the driver was not in his employment was negatived.

14. As mentioned earlier, this is the bone of contention now made in this appeal by the insurer. Shri Rebello, learned counsel appearing for the insurer, now says that it is undeniable that the insurance policy which is on record does not cover the risk of a gratuitous passenger. In fact, there is no controversy on this subject. Shri Rebellow now points out that there is no evidence led by the original claimant and there is nothing available on the record to suggest that the deceased, Yoganand, was in the employ of the owner and had accompanied the driver on that trip to Bombay and its return in that capacity.

15. By now, we have made abundant reference to the record and it may be pointed out that, barring the statement of A.WA.1 , there is nothing on record suggesting employment of the deceased, Yoganand, with the owner. When the accident occurred, it is clear from the evidence of Vishnu Mahatme (A.W. 4), that the temporary employment of Yoganand with Ciba and Co. had come to an end on February 5, 1981. A.W. 1 had stated that the driver had come calling upon Yoganand to accompany him on the trip to Bombay starting on March 17, 1981, and, accordingly, Yoganand had gone on that trip. The further fact remains that, in so far as the defence of the owner is concerned, while he disclaimed knowledge of the deceased, Yoganand, he suprisingly comes with a defence that the driver was not in his employment and the trip made by the driver to Bombay carrying goods of Rajesh Roadways was itself unauthorised and that at any rate he was not aware of such trip and he came to know about it only on the evening of March 17, 1981, when he went in search and made inquiries by approaching the office of Rajesh Roadways at Margao. Though he had never engaged the driver to make the trip to Bombay, he categorically seeks of the engaged of the driver to get the truck inspected by the Directorate of Transport on March 16, 1981, otherwise devoid of particulars. This defence, in our view, is highly suspect and is made with an ulterior view to disclaim or disown liability arising out of the accident but, however, we need not presently confine ourselves to that.

16. This matter can be looked at from a different standpoint. Regard being had to the pleadings, issues Nos. 5 and 6, which are extracted above, were framed. The facts relating to these issues were totally within the special knowledge of respondent No. 2, driver and respondent No.3, owner. None of them entered the witness box. It is common ground that neither the driver nor the owner was persuaded to enter the witness box to tender evidence and the company remained content by restricting its evidence only to the production of a certified true copy of the policy of insurance covering the truck during the relevant period. In our view, the question as to whether the deceased, Yoganand, was taken as helper on the trip and, therefore, under the employment of the owner could not have been within the knowledge of the original claimant but it was within the special knowledge of the owner and the driver.Having raised an issue, respondent No.2, owner, did not tender evidence and on the contrary avoided the same. Equally, the insurer did not do anything in the matter despite the driver, in the written statement, stating that owner had sent Yoganand as a helper on the trip. It, therefore, stands to reason that the deceased, Yoganand, made the trip to Bombay on March 17, 1981, to help the driver in transporting the goods and to make the return trip from Bombay to Goa. This being position, nothing survives in this appeal and the appeal is, therefore, liable to be dismissed.

17. Coming to the cross-objections filed on behalf of the original claimant, it may be seen that though young life is lost in an accident, the fact remains that Yoganand was employed only as a temporary hand during the season with Ciba and Co. and whenever so employed, he would get an amount of Rs.780 per month. This job would normally last only during the packing season for a period of about 6 months in a year and ending in February of a given year. In so far as the income of Rs.30 in the matter of casual work for his brother-in-law in the decorative illumination business is concerned, the same again is not fixed and regular and would depend upon several factors. Admittedly, the original claimant, Smt. Gangu, claims to be the dependant. She was at the relevant time aged 65. Smt. Gangu used to depend on her son for running the household. In our view, the dependency is established in the sum of Rs.5,000 per annum. A flat compensation of Rs.40,000 has already been awarded and considering the age of the dependent mother, in our view, no fault can be found therewith. When invested by way of interest, she can secure that amount of dependency, In this view of the matter, cross-objection are also liable to be rejected.

18. We confirm the award in favour of respondent No.1, Gangu, in the sum of Rs.40,000 together with interest at the rate of 8% per annum from the date of institution of the original application to be paid jointly and severally by the appellant respondents Nos. 2 and 3 in this appeal. We further direct the appellant insurer to deposit the amount awarded in favour of Gangu with 8 weeks from today. On such deposit, the same amount is directed to be paid to the original claimant, Gangu. Costs of Rs.2,000 as directed by the Tribunal is maintained. No costs are awarded as far as this appeal and cross-objections are concerned which are dismissed.