1. This appeal arises out of Judgment and Award dated 21/4/2006, passed by the learned Motor Accident Claims Tribunal, at Mapusa ("Claims Tribunal", for short), in the Claim Petition no. 77 of 2004, whereby the petition has been partly allowed. The parties shall be referred to in the same manner as they appear in the said Claim Petition.
2. The case of the claimants was that the husband of the claimant no. 1 and father of the claimants no. 2 and 3, since deceased, namely Balu Gaude, was working as labourer and on 26/5/2004 he was carrying the goods in the Pickup, bearing registration no. GA-01-U-0562, hired for the said purpose, after the marriage at Valpoi and the Pickup was proceeding to Valpoi and on reaching Rajmyachi Kond at Velgem at 14.15 hours, an accident occurred due to rash and negligent driving of the said Pickup by respondent no. 2. The result was that the Pickup turned turtle causing grievous injuries to the inmates including deceased Balu.
3. The learned Claims Tribunal has held that the vehicle was driven rashly and negligently by respondent no. 2 and that the said Pickup belonging to the respondent no. 1, was insured with respondent no. 3. It has been further held that the deceased was engaged to load and unload, the gift articles of the marriage, in that Pickup and the respondent no. 3 failed to prove that the deceased was a gratuitous passenger in the said Pickup and therefore there was breach of policy of Insurance. It has been held that the deceased died as a result of the injuries sustained in the said accident. The respondents have been jointly and severally held to be liable to pay compensation in the sum of Rs. 3, 45, 500/- to the claimants along with the interest at the rate of 7.5% per annum from the date of the application till the date of award. The amount paid u/s 140 of the Motor Vehicle Act ("M. V. Act", for short) has been ordered to be adjusted against the final compensation.
4. The respondent no. 3 i.e. the Insurance Company is aggrieved by the Judgment and Award.
5. The short point that arises in the present appeal is whether the respondent no.3 is liable to indemnify the owner of the said Pickup, i.e. the respondent no. 1, in respect of the death of the said Balu Gaude and consequently liable to pay the compensation awarded by the learned Claims Tribunal.
6. Mr. E. Afonso, learned counsel for the respondent no. 3, argued that on account of amendment carried out to Section 147 of the M. V. Act, on 14/11/1994, the liability in respect of death or bodily injury to any person including either the owner of the goods or his authorised representative carried in the goods vehicle, is covered and the deceased being gratuitous passenger, his risk is not covered by the Insurance policy. The learned counsel argued that the words "bodily injury to any person", mentioned in said section 147(1)(b), refer only to a third party and not to a passenger travelling in the goods carriage whether gratuitous or otherwise. He has relied upon
7. Per contra, Shri S. D. Padiyar, the learned Advocate, on behalf of the claimants, invited my attention to the Claim Petition filed by the claimants. In paragraph 23 thereof, it has been clearly stated that the deceased was sitting at back side of the Pickup to supervise the marriage presents and other materials which were placed at back side of the Pickup. He then pointed out that AW1, who is wife of the deceased has fully corroborated the averments made in paragraph 23 of the Claim Petition and further in her crossexamination by learned advocate for the respondents no. 1 and 2, she has admitted that the deceased was in the tempo to take care of the gift articles. He further argued that an independent witness by name Raghunath Gawas (AW3), who was also traveling by the same Pickup has stated in his affidavit-in-evidence that the deceased Balu Gaude was employed to take care of the said gift articles from Valpoi to Doda Marg and was traveling along with the gifts and articles in the said Pickup. He submitted that the additional issue framed by the learned Claims Tribunal had put the burden on the respondent no. 3 to prove that the deceased was gratuitous passenger, but the said burden has not been discharged. In this regard, he has relied upon the Judgment of the Hon''ble Apex Court in the case of "Narcinva V. Kamat and another Vs. Alfred Antonio Doe Martins and others" [1985 AIR 1281], wherein it has been held that the burden to prove that there was breach of contract of the insurance policy was squarely placed on the shoulders of Insurance Company. He has also relied upon the Judgment of the learned Single Judge of the Hon''ble Delhi High Court in the case of "Seema Arya Vs. Smt. Sudha Devi and ors." [MAC APP No. 118/2006], in which case also the deceased was traveling in a tempo as a caretaker of the material/goods, which were to be transported to the factory of his employer. The question before the learned Single Judge was as to whose duty it was to prove that the deceased was a caretaker of the goods being loaded on the tempo. Keeping in view the provisions of Section 147 of M. V. Act, the learned Single Judge has held that in order to prove the breach of the Insurance policy, the insurance company will have to prove that the deceased was not owner of the goods or his authorized representative/caretaker of the goods and in order to prove the same, it was the duty of the insurer to summon the owner of the goods. In that case, the insurer had not chosen to summon the employer of the deceased in order to prove that the deceased was not a caretaker and authorized representative of owner of the goods but was merely a gratuitous passenger. The learned Single Judge has placed reliance in the case of "Narcinva V. Kamat" (supra) and has held that the Insurance Company failed to prove the breach of policy and also that the deceased was a gratuitous passenger. It is therefore the contention of the Shri. Padiyar that in view of the evidence produced by the claimants on record, the deceased is proved to be a caretaker of the marriage gifts that were carried in the said Pickup. He would therefore contend that the impugned Judgment and Order holding that the Respondent no. 3 has failed to prove that the deceased was gratuitous passenger does not require any interference.
8. Shri M. Amonkar, learned Counsel for the respondent no.1, has adopted the arguments of Shri Padiyar and has further contended that the finding in the case of "Cholleti Bharatamma"(supra), to the effect that owner of the goods means only the person who travels in the cabin of the vehicle, cannot include the representative of the owner, engaged to take care of those goods.
9. Perused the entire material on record.
10. It is seen that it has been pleaded in paragraph 23 of the claim petition that the deceased was sitting at back side of the Pickup to supervise the marriage presents and other materials which were placed at the back side of the Pickup. "Goods" as defined u/s 2(13) of the M. V. Act includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effect carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers traveling in the vehicle. According to Shri E. Afonso, learned counsel for the respondent no. 3, the marriage gifts would be personal goods. It is seen from the evidence on record that no suggestion has been put to the witnesses that there were no marriage gifts in the said Pickup or that the said articles were all personal goods of the passengers. It is true that in the First Information Report as well as in the Panchanama, it is mentioned that there were passengers in the said pickup. But, it is not mentioned in these documents that there was no person sitting in the Pickup as a caretaker of the goods. It is also true that in the said documents there is no mention that marriage gifts were kept in the said Pickup. However, it is equally true that the said documents do not say that there were no such goods in the said Pickup. It is also not stated in these documents that the deceased was sitting in the Pickup as one of the passengers. There is nothing in support of the contention that the gifts/presents which are received by the married couple, during the marriage, are personal effects and cannot be called as "goods". It is true that AW1 who is wife of the deceased was not traveling in the said vehicle. However, her statement that the deceased was in the tempo to take care of the gift articles has been duly corroborated by independent witness who was traveling in the said Pickup and AW 3, Raghunath Gawas has stated in his affidavit as well as in his cross-examination conducted by the learned Advocate for respondents no. 1 and 2, that the deceased Balu was employed to carry the gift articles. It is pertinent to note that in the cross-examination of AW3, done by learned Advocate for the Respondent no.3, though, a suggestion has been put that he has incorrectly stated that Balu was kept to guard the articles in the said Pickup, however, no suggestion has been put that there were no such articles carried in the said Pickup. It is based on the evidence of AW3 that the learned Claims Tribunal has held that Balu was engaged to take care of gift articles from Valpoi to Doda Marg in the said Pickup.
11. It is true that the case of "Narcinva V. Kamat"(supra) pertains to the valid driving license. However, the principle laid down therein about the breach of contract of insurance applies to this case also and it has been held that the burden to prove that there is breach of contract of insurance is squarely on the shoulders of the Insurance Company. In fact, additional issue framed in the claim petition required the respondent no. 3 to prove that the deceased was a gratuitous passenger. Learned Shri E. Afonso has pointed out that RW1 has stated in the cross-examination that he is not aware if Balu Gawade was working as a cleaner on the said Pick up on the said day. According to the learned counsel, the said answer shows that it is the case of the claimants that the deceased was working as a cleaner on the said Pickup, since this crossexamination is done by learned advocate for the claimants. In my view, the above answer is not given to any suggestion put to this witness. Even otherwise, it is nobody''s case that the deceased was a cleaner. The statement of RW1 that his investigation revealed that there were 30 passengers in the said Pickup, is not sufficient to prove that there were no marriage gifts/goods carried in the said Pickup. The said statement also cannot prove that the deceased was also a passenger. I have no hesitation to agree with the observations of the learned Single Judge of the Delhi High Court in "Seema Arya"(Supra), that in terms of provisions of section 147 of the M. V. Act, in order to prove breach of Insurance Policy, it is the insurance Company which will have to prove that the deceased was not owner of the goods or authorised representative/caretaker of the goods. I fully agree with the finding of the learned Single Judge In the case of "Seema Arya"(supra) that the statements made in FIR are not corroborative evidence to prove that the deceased was a gratuitous passenger as the insurer and owner have to prove that the deceased was not an authorised representative or caretaker of the goods. In the present case, the respondent no. 3 has examined the Investigating Officer namely Narayan Parwar, the then Assistant Sub-Inspector as RW1. However, the respondent no. 3 has not examined the owner of the said goods which were being carried in the said Pickup.
12. Indisputably, the respondent no. 3 would not be liable to indemnify the owner that is the respondent no. 1, in case the deceased was a gratuitous passenger. However, in the present case, in my view, the respondent no. 3 has failed to establish that the deceased was a gratuitous passenger. In the case of "Cholleti Bharatamma"(supra), in paragraph 19 thereof, it has been held that it is well settled that the owner of the goods means only the person who travels in the cabin of the vehicle. I am not inclined to subscribe to the contention of Shri E. Afonso that the owner includes his representative. Therefore, the citation in the case of "Cholleti Bharatamma"(supra) which pertains to the owner of the vehicle cannot be applied to the present case wherein the deceased was traveling as a caretaker of the goods/ marriage gifts which were carried in the Pickup.
13. In view of the discussion supra, I find that the learned Claims Tribunal has rightly answered the additional issue in the negative. The deceased is not proved to be a gratuitous passenger. He is duly proved to be a person who was engaged to take care of the goods/marriage presents which were being carried by the said Pickup. No interference is called for with the impugned judgment and order which is passed on correct appreciation of the evidence on record. Hence, the appeal is dismissed, however with no order as to costs.
