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2005 DIGILAW 3105 (RAJ)

United India Insurance Co. Ltd. v. Maru Kanwar

2005-11-23

VINEET KOTHARI

body2005
Judgment Vineet Kothari, J.-This appeal is directed against the award dated 01.09.1998 passed by MACT, Barmer deciding the Claim Petition No. 57/1997. 2. The Tribunal decided the issue No. 3 against the appellant Insurance Company and held on the basis of decision of the Hon’ble Supreme Court in the matter of Amrit Kumar Sood vs. Kaushilya Devi reported in 1998 (2) RLW 229 (SC) and other case laws that if any passenger was giving as a gratuitous passenger in a private vehicle, the risk would also be covered by the insurance policy and, therefore, the Insurance Company would be liable to pay the compensation in question. The Tribunal awarded Rs. 4,51,600/-in favour of the claimants on account of death of one Aasu Singh who was travelling in the Jeep No. RJ-21/0110 which met with an accident on 012.1996 and the passenger of the said vehicle Aasu Singh died as a result of said accident. 3. Shri R.K. Mehta learned Counsel appearing on behalf of Insurance Company submitted that the learned Tribunal has committed an error in holding the Insurance Company liable in view of the fact that the policy in question Exhibit NA-2 was only “Act only” policy in which no additional premium was paid by the insured covering the risk of any person other than the driver and khalasi and the basic premium for insurance of the vehicle is Rs. 240, Rs. 15 Rs. 255, with Rs. 13/-as service tax. Total Rs. 268/-was paid by the insured in respect of the said jeep. 4. Thus according to the learned Counsel for the Insurance Company the Insurance Company could not be held liable to pay the award sum to the claimants. He relies on the following Judgment s of the Hon’ble Supreme Court as well as of this Court in this regard:- 1 2005 (1) TAC 4 SC : National Insurance Company vs. Challa Bharathamma, 2. 2005ACJ 1801 : M.V. Jayadevappa & Anr. vs. Oriental Fire & Gen. Ins. Co. Ltd. & Ors., 3. 2005ACJ 721 : National Insurance Company Ltd. vs. Bommithi Subbayamma & Ors., 4. 2005RAR 465 (Raj.) : Varju & Ors. vs. United India Insurance Co. Ltd. & Ors., 5. 2004RAR 162 (Raj.) : United India Insurance Company Ltd. Jodhpur vs. Buddha Ram & Ors. 5. vs. Oriental Fire & Gen. Ins. Co. Ltd. & Ors., 3. 2005ACJ 721 : National Insurance Company Ltd. vs. Bommithi Subbayamma & Ors., 4. 2005RAR 465 (Raj.) : Varju & Ors. vs. United India Insurance Co. Ltd. & Ors., 5. 2004RAR 162 (Raj.) : United India Insurance Company Ltd. Jodhpur vs. Buddha Ram & Ors. 5. On the strength of these Judgment s learned Counsel for the appellant Insurance Company submits that Section 147(1)(b) of the M.V. Act makes it clear that the policy must be a policy which insures the person or class of person specified in the policy and since undisputedly in the instant case the policy Exhibit NA-2 does not insure the person or class of person involved in the present case namely gratuitous passengers of the jeep, the Insurance Company cannot be held liable. He also relied upon the decision Full Bench in the matter of United India Insurance Company Ltd. & Ors. vs. Bindu & Ors. reported in 2003 ACJ 1331 wherein under the old law also the Court held, that under Section 95(1) of the old Act, the Insurance Company would not be liable for a gratuitous passenger travelling in a private vehicle under an “Act only” policy. 6. As far as this proposition of law is concerned about “the Act only” policy the learned Counsel appearing for the claimants-respondents failed to controvert that this position of law is now well settled and possibly cannot be controverted. He, however, submits that claimant should not be deprived of the payment of compensation as awarded by the Tribunal and the Insurance Company may be directed to pay the compensation to the claimants and further Insurance Company may recover such compensation from the owner and driver of the offending vehicle. 7. Nobody, appear from the side of owner and deliver in the present case despite survive. 8. Heard, learned Counsel for the parties and after perusal of the record this Court is of the view that the appeal of the Insurance Company deserves to be allowed to the extent of finding of Tribunal in the impugned award on Issue No. 3 holding the Insurance Company liable in the matter. In view of the policy in question being “Act only” policy the Insurance Company cannot be said to have covered the risk of a gratuitous passenger the deceased Aasu Singh who was travelling in the said jeep. In view of the policy in question being “Act only” policy the Insurance Company cannot be said to have covered the risk of a gratuitous passenger the deceased Aasu Singh who was travelling in the said jeep. Therefore, it is held that Insurance Company would not be liable to pay the compensation to the claimants. The owner and the driver of the said jeep Virendra Kumar and Hakam Singh would be jointly and severally liable for the payment of compensation in question. 9. However, in view of the directions given by the Honble Supreme Court in the matter of M/s. National Insurance Co. Ltd. vs. Baljeet Kaur reported in AIR 2004 SC 1340 and even in the cases cited above, it is considered expedient to directed that the Insurance Company would make the payment of compensation awarded by the Tribunal, on the said owner of the jeep providing adequate and sufficient solvent security to the satisfaction of the learned Tribunal so that the Insurance Company may recover the compensation paid by it to the claimants from the said owner and driver of the jeep out of the security so furnished before the Tribunal. Jeep No. RJ 21/0110 if not already transferred by the said owner of the vehicle shall remain in attachment and shall not be transferred by him. Besides, the said vehicle other adequate solvent security of owner himself or other third party having sufficient solvency shall be furnished before the Tribunal to the satisfaction of the Tribunal. Upon such security being furnished the amount of compensation may be paid by the Insurance Company to the claimants in the manner as already directed by the Tribunal and the Insurance Company would be free to recover such payment from out of the security so furnished before the Tribunal without being required to undergo any other execution proceedings or the like. 10. With these observations, the present appeal is allowed. No order as to costs. The parties are directed to appear before the Tribunal on 16.01.2006. The requisite proceedings may be undertaken by the Tribunal and completed within a period of six months.