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2005 DIGILAW 1705 (RAJ)

The New India Assurance Company Ltd. v. Badami

2005-07-04

J.R.GOYAL

body2005
Judgment J.R.Goyal J.-Since, all these four appeals arise out of the same accident, hence are being disposed of vide this common Judgment 2. A fateful accident took place on 03/07/1991 at about 7 p.m. when a Jeep bearing registration No. RPI-5738 driven by Dhanna Lal collided with the train at the Railway Crossing of Baniya Wale Kothi in a bid to pass through the crossing fastly. In this accident, apart from dirver Dhanna Lal, Smt. Rukmani, her 8 months old son Dinesh and one another girl Rekha aged 5 years died and Badami sustained serious injuries. 3. Legal heirs of the deceased Smt. Rukmani, Dinesh and Kumari Rekha filed separate claim petitions and injured Badami also filed claim petition for compensation. All these claim petitions were disposed of vide common Judgment dated 06.08.1994 by Motor Accident Claims Tribunal, Jaipur City, Jaipur. 4. Aggrieved from the award of compensation passed by the Tribunal, the New India Assurance Company Ltd. has preferred these appeals. 5. A short question which arises for consideration in all these four appeals is, whether in the Act only policy issued under the Motor Vehicles Act, 1988 (in short the Act of 1988), the Insurance Company is liable for the death or injury to gratuitous passenger travelled in a private vehicle? 6. Assailing the impugned Judgment , it has been contended by learned Counsel for the appellant-Assurance Company that involved Jeep in the accident was private vehicle and insured as Act only Policy, thus, the New India Assurance Company is not liable for compensation on account of the death or injuries sustained while travelling in such vehicle as a gratuitous passenger. In support of his arguments, reference has been made to the Judgment s delivered in the cases of United India Insurance Co. Ltd. vs. Hamu Ram & Ors, reported in 2004 RAR (Raj.) page 308, Dr. T.V. Jose vs. Chacko P.M. & Ors., reported in 2001 ACJ 2059 (Supreme Court) and United India Insurance Co. Ltd. vs. Celinamma, reported in 2003 ACJ 623 (Supreme Court). 7. Ltd. vs. Hamu Ram & Ors, reported in 2004 RAR (Raj.) page 308, Dr. T.V. Jose vs. Chacko P.M. & Ors., reported in 2001 ACJ 2059 (Supreme Court) and United India Insurance Co. Ltd. vs. Celinamma, reported in 2003 ACJ 623 (Supreme Court). 7. Learned Counsel for the respondents supported the impugned Judgment and contended that in Section 147 of the Act, the Insurance Company is not absolved in respect of the persons carried in or upon the vehicle and that the term any person used in Section 147 (1) (B) (i) of the Act includes every person who incurs death of or bodily injury caused by use of any motor vehicle and the passenger of any vehicle is covered by third party risk. 8. I have considered the rival contentions. This factual position is not disputed that accident took place on 03.07.1991 and as such provisions of Section 147 of the Act of 1988 would be applicable. It is also not in dispute that involved vehicle in the accident was a private Jeep and insured with appellant-the New India Assurance Co. Ltd. for the period from 11.07.1990 to 10.07.1991 as Act only policy. It is also evident from the policy Exh. A1 that no extra premium has been paid by the insured to cover any other risk not compulsorily coverable under the Act of 1988. The controversy referred above has been set at rest by now that when vehicle is insured for the Act only policy (third party) then such policy shall not cover the liability in respect of death of or bodily injury to a gratuitous passenger. A co-ordinate bench of this Court has considered this point in detail in the case of United India Insurance Co. Ltd. vs. Hamu Ram & Ors.s case (Supra), wherein it was held that any person referred in Section 147 (1) (b) do not include gratuitous passenger and private vehicle which is insured for the Act only policy (third party), the Insurance Company is not liable for the death of or any bodily injury to gratuitous passenger. Honble Supreme Court also held in the case of Mallawwa vs. Oriental Insurance Co. Ltd. reported in 1999 ACJ 1 (Supreme Court) that gratuitous passenger in a goods vehicle is not entitled to insurance coverage, if the policy is taken to cover the risk compulsorily coverable under the statute (Act Only). Honble Supreme Court also held in the case of Mallawwa vs. Oriental Insurance Co. Ltd. reported in 1999 ACJ 1 (Supreme Court) that gratuitous passenger in a goods vehicle is not entitled to insurance coverage, if the policy is taken to cover the risk compulsorily coverable under the statute (Act Only). In the case of Dr. T.V. Joses Case (Supra), Honble Supreme Court held that a gratuitous passenger travelling in a private vehicle is also not entitled to insurance coverage under the Motor Vehicles Act, 1939, if the policy is taken only to cover the risk compulsorily coverable under the statute. 9. Here, it is pertinent to mention that Honble Supreme Court in the case of New India Assurance Co. Ltd. vs. Satpal Singh, reported in 2000 ACJ 1 (Supreme Court) took the view that under the New Act of 1988 gratuitous passengers are entitled to be covered under the Act policies but this Judgment was lateron overruled by the Honble Supreme Court in the case of New India Assurance Co. Ltd. vs. Asha Rani and Ors., reported in 2001 ACJ 1847 (Supreme Court), wherein while dealing with Section 147 of the Act it was held that gratuitous passengers travelling in the goods vehicle are not entitled for the coverage under the Act only policy. 10. Keeping in view the entire facts and circumstances of the case in the light of the above referred Judgment s, I am of the view that gratuitous passengers travelling in a private vehicle are not entitled for insurance coverage in the Act only policy (third party). 11. The net result of the aforesaid discussion is that the findings recorded by the Tribunal on the question of liability of the appellant-New India Assurance Company Ltd. cannot be sustained and are required to be set aside. 12. Accordingly, the present appeals are allowed. The impugned Judgment and award is modified in the manner that while maintaining the award of compensation to the claimants, it is held that the appellant-New India Assurance Co. is not liable for payment of compensation. However, it is made clear that whatever amounts may have so far been paid by the appellant, it shall be entitled to recover from the owner. The parties are left to bear their own costs.