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2005 DIGILAW 341 (HP)

NEW INDIA ASSURANCE COMPANY v. VEENA DEVI

2005-09-13

SURJIT SINGH

body2005
JUDGEMENT Surjit Singh, J.: Appellant-New India Assurance Company is aggrieved by the award dated 14.9.1998 of Motor Accident Claims Tribunal, Rampur Bushahr, whereby liability for payment of compensation, awarded to respondents Veena Devi and others, the dependants Devku Devi, who died in an accident of a truck, has been imposed upon it (the appellant) on account of its being the insurer. 2Appellants plea is that the deceased was a gratuitous passenger on board the truck and this fact is borne out from the evidence and the pleadings and therefore, the liability could not have been imposed upon it. 3. I have heard the learned counsel for the parties and perused the record. 4. The learned Tribunal has rejected the plea of the appellant for two reasons. First the deceased, even if a gratuitous passenger, was a third party and hence her risk was covered by the policy. Reliance is placed by the learned Tribunal on a Full Bench decision of Gauhati High Court in New India Insurance Company Ltd. Vs. Satyanath Hazarika, [1989 ACJ 685] and a Division Bench judgment of our own High Court in New India Insurance Company Ltd. Lachhmi Devi, [1996 ACJ 496 (HP)]. The second reason recorded by the learned Tribunal for rejecting the appellants is that the deceased had paid Rs.15/- as hire charges and so she could not be said to be a gratuitous passenger. 5. As regards the first person given by the Tribunal in support of the finding that the insurer is liable to pay the compensation, the same cannot be endorsed. The precedents relied upon by the learned Tribunal are no longer a good law. Honble Supreme Court in New India Assurance Co. Ltd. Vs. Asha Rani and others [(2003) 2 Supreme Court Cases 223] and Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy and others [(2003) 2 Supreme Court Cases 339] has authoritatively held that Section 147 of the Motor Vehicles Act, 1988 does not enjoin any obligation on the owner of the vehicle to get his vehicle insured for the risk of any passenger traveling in a goods carriage and the insurer will have no liability therefor. 6. So far as the second reason is concerned, the same appears to be well founded. A reading of the insuranse policy Ext RD tendered in evidence by the appellant itself shows that it covered the risk of the deceased. 6. So far as the second reason is concerned, the same appears to be well founded. A reading of the insuranse policy Ext RD tendered in evidence by the appellant itself shows that it covered the risk of the deceased. Section 2 of the policy pertaining to liability of third parties, inter-alia contains the following clause:- "Except so far as is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable in respect of death and/or bodily injury to any person who is not employee of the insured and not being carried for hire or reward, other than owner of the goods or representative of the owner of the goods, being carried in or upon entering or mounting or alighting from the Motor Vehicle described in the schedule of this Policy." 7. A reading of the above reproduced clause shows that the liability of the insurer is excluded only in the case of a passenger, who is not an employee of the insured and is not being carried for hire or reward. In the present case, the deceased as per averments in para-10 of the petition had paid Rs.15/- as hire charges for traveling by the truck, in question. The appellant did not lead any evidence in support of the allegation that the deceased was on board the truck as gratuitous passenger, inspite of the fact that the petitioner categorically alleged in para-10 of their petition that the deceased had paid Rs.15/-, on account of hire charges, for traveling by the truck. 8. The learned counsel for the appellant urged that in view of the law laid down by the Honble Supreme Court in New India Assurance Co. Ltd. Vs. Asha Rani and others, [(2003) 2 SCC 223] and Oriental Insurance Co. Ltd. vs. Devireddy Konda Reddy and others, [(2003) 2 SCC 339], the Insurance Company is not required to pay the compensation The argument has been stated only to be rejected. It is true that Section 147 of the Motor Vehicles Act does not require that the risk of the passenger, being carried in a goods carrier, should be covered by the insurance policy, but there is nothing in the Motor Vehicles Act prohibiting the insurer to cover such a risk. It is true that Section 147 of the Motor Vehicles Act does not require that the risk of the passenger, being carried in a goods carrier, should be covered by the insurance policy, but there is nothing in the Motor Vehicles Act prohibiting the insurer to cover such a risk. By a contract between the insurer and the insured, i.e. the owner of the vehicle, any risk can be covered besides those statutorily required to be covered. 9. For the reasons recorded in the preceding paragraph, it cannot be said that the deceased was a gratuitous passenger or the risk of her death was not covered by the insurance policy. Consequently, the appeal is dismissed.