2009(5) ALL MR 199
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

The Oriental Insurance Co. Ltd.Vs.Smt. Mangala Wd/O. Dinesh Bire & Ors.

First Appeal No.266 of 2001

8th May, 2009

Petitioner Counsel: Shri. D. N. KUKDAY
Respondent Counsel: Shri. G. N. KHANZODE

Motor Vehicles Act (1988), S.147 - Liability of Insurance Company - Gratuitous driver - When a person driving the vehicle who is not a workman or employee, engaged to drive or a gratuitous driver of the vehicle which has suffered the accident would not be entitled for compensation on the basis of the Insurance Policy. 2008(5) ALL MR 757 and 2009(1) ALL MR 978 (S.C.) - Ref. to. (Para 5)

Cases Cited:
The Oriental Insurance Co. Ltd. Vs. Meena Variyal, 2007 ALL SCR 1697 : 2007(5) SCALE 269 [Para 4]
HDFC Chubb General Insurance Co. Ltd. Vs. Shantidevi Rajbalsingh Thakur, 2008 ACJ 1280 [Para 4,25]
Traders Pvt. Ltd., Ahmedabad Vs. Sunanda wd/o. Krishna Machivale, 2008(5) ALL MR 757=2009(1) Mh.L.J. 989 [Para 4]
New India Assurance Co. Ltd. Vs. Sadanand Mukhi, 2009(1) ALL MR 978 (S.C.)=2009 ACJ 998 [Para 4]


JUDGMENT

JUDGMENT :- This is an appeal by the Insurance Company who is aggrieved by the award passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.433 of 1994.

2. The Tribunal has awarded the compensation to the tune of Rs.3,61,500/- with 9% interest.

3. The challenge which is argued is based on the ground namely that the driver was a gratuitous driver and was not an employee engaged on wages.

4. In support of the submissions, the learned Advocate Mr. D. N. Kukdey has placed reliance on the following reported judgments :-

1. 2007(5) SCALE 269 : [2007 ALL SCR 1697], The Oriental Insurance Co. Ltd. Vs. Meena Variyal & Ors..

2. 2008 ACJ 1280, HDFC Chubb General Insurance Co. Ltd. Vs. Shantidevi Rajbalsingh Thakur and another.

3. 2009(1) Mh.L.J. 989 : [2008(5) ALL MR 757], Traders Pvt. Ltd., Ahmedabad and another Vs. Sunanda wd/o. Krishna Machivale and others.

4. 2009 ACJ 998 : [2009(1) ALL MR 978 (S.C.)], New India Assurance Co. Ltd. Vs. Sadanand Mukhi and others.

5. The proposition of law namely that when a person driving the vehicle who is not a workman or employee, engaged to drive or a gratuitous driver of the vehicle which has suffered the accident would not be entitled for compensation on the basis of the Insurance Policy from the Insurance Company, is seen to be a proposition on which there is no room for two opinions. Any discussion on the Judgments relied upon by appellant is not needed.

6. Present case is, therefore, to be decided on the basis of the facts as proved and/or disproved.

7. Serious emphasis is given by the learned Advocate for the appellant to urge that the deceased was a gratuitous driver, on the admissions contained in the averment found in claim petition, which reads as follows :-

"4. Occupation of the person dead :

The deceased was recently appointed as Assistant Teacher, in the Vidya Shikshan Prasarak Mandal, Y.M.C.A. Complex, Maharajabagh Road, Nagpur, vide letter No.VSPM/250-A, dated 24/7/1993, in the pay-scale of Rs.1200-30-1560-EB-40-2040 w.e.f. 2/8/1993. However, on the ill-fated vehicle i.e. Tempo Trax Jeep No.MH-31/G5644, was driven by him, as previously, he was working as Driver with the respondent no.1, and, on the request of respondent No.1, even though, he got the Jeep at another place agreed to take a trip along with his friends in the said jeep."

[Quoted from page 18 of the appeal paper book]

8. The learned Advocate has then placed reliance on the oral evidence of the claimants' witness no.1. The relevant ave

"3) On 31.7.1993, deceased Dinesh started for to Panchmari, along with his friends and relatives, by Trax jeep, owned by respdt.1."

[Quoted from page 32 of the appeal book]

9. The claim petition was opposed, and the witnesses were cross-examined by Insurance Company, however, the vehicle owner has not stepped into witness box. The Insurance Company too did not bring any other oral evidence.

10. In the cross-examination, the claimant's witness was questioned about the deceased being not in the employment of the owner of vehicle, and he has deposed as follows:-

"9. I have mentioned in my petition that on the day of the accident, my son, was under the employment of Resptd.-I.

I have only specified about the prospective salary of my son, as a teacher in the petition. Not correct to state, that at the time of the accident, my son was not working as a driver on the jeep of Respdt-I. Averment in the petition, that my son left the employment of Resptd.I, on 27-7-93 is not correct."

[Quoted from page 33 & 34 of the appeal paper book]

11. This witness has proved that on what is shown in the petition that the deceased had got the job as a teacher, however, the deceased was yet in the employment of the vehicle owner as a driver "as previously".

12. As narrated herein before, the case is to be decided on the facts namely whether the deceased was in the employment of the respondent on the given date i.e. as a paid worker.

13. It is clear that the Insurance Company did not make any effort to summon the employer to deny the employer and employee relationship between the insured and the deceased.

14. This Court has once again perused the contents of para 4 of the claim petition. It reveals that deceased had got an employment as teacher and was due to join new assignment on 2-8-1993, while on the fateful day, he was driving the vehicle subject matter and was on the job of driving of the vehicle as before i.e. as an employee.

15. The words in pleading and evidence will have to be read on the whole. In the pleading, he has in a very specific terms quoted the words "Tempo Trax Jeep No.MH-31/G-5644 was driven by him as previously" thereby suggesting that on the basis of the same terms of employment. In the oral evidence, the claimant has specifically mentioned about the employment of deceased. In the cross-examination, instead of getting an admission in favour of the Insurance Company what elicited was in fact, turned out to be filling a lacuna in the examination-in-chief.

16. Last attempt of resurrection was made by learned Advocate Mr. D. N. Kukde arguing that, not only that the Driver was on the wheels gratuitously, but it was a case of gratis lending of vehicle by the owner as the deceased was taking "his friends and relatives", i.e. those of the deceased.

17. Discreet scrutiny of pleadings and evidence denudes the submission of Mr. D. N. Kukde Advocate which is recorded in the foregoing para.

18. Had the driver taken the vehicle for a joy or pilgrim trip for his own friends and relatives, there was no occasion for the claimants to plead that deceased took the trip to Pachmadhi at the request of the vehicle owner. Moreover, the fact pleaded by claimants that owner requested the deceased to drive the vehicle has not been denied by the owner or the Insurance Company.

19. Further all these arguments of Insurance Company are not based on any enquiry, investigation etc. caused by the Insurance Company, and witnesses thereof being identified. All these submissions are seen to be a product of ingenuity of legal advise.

20. In these premises, it is clear that the attempt of Advocate Mr. D. N. Kukde is to any how urge that the Insurance Company has no liability, however, this attempt has no factual support in the trial Court. An appellate lawyer has his limitation on the facts proved by parties in the trial Court.

21. The proof of facts namely that the deceased was an employee with the vehicle owner and drove the vehicle on the request of the owner "as previously" suggests that he had not severed the employer employee relation. Though he had secured a new job, was yet to join new employment, and hence, undertook the trip i.e. journey at the request of the vehicle owner i.e. in continuation of the employment.

22. The employer and employee relationship is thus, duly proved and the Insurance Company has failed to discharge its burden on rebuttal. Alleged admission in the pleading that the deceased had left the job as driver is thus a literal interpretation and not based on factual aspects. Surrounding facts and evidence proves that the deceased was in the employment of the insured as a driver. Appellant is attempting to take disadvantage of immature mofussil drafting.

23. In these premises, it would be extremely hard to get persuaded to believe that the deceased was a gratuitous driver and not a salaried or paid driver.

24. The Insurance Company is thus, contesting the claim based on its interpretation and rather on uncontroverted evidence of the claimant. It is exerting by mincing the words and trying to secure something out of nothing.

25. The Insurance Company has failed to prove that the deceased was driving the vehicle gratuitously, and that, as found in the Judgment of this Court 2008 ACJ 1280, HDFC Chubb General Insurance Co. Ltd. Vs. Shantidevi Rajbalsingh Thakur and another and in specific para 44 thereof, no liability was attracted towards the Insurance Company.

26. This conclusion leads to result that the appeal has no merit and deserves to be dismissed and is dismissed with costs.

Appeal dismissed.