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2009 DIGILAW 227 (JK)

Oriental Insurance Co. Ltd. v. Surinder Kumar

2009-05-15

SUNIL HALI

body2009
1. Feeling aggrieved by the award passed by the Presiding Officer, Motor Accidents Claims Tribunal, Kathua dated 24.01.2007 to the tune of Rs. 2,60,000/- in favour of respondent no.1, the present appeal has been filed by the appellant. 2. Respondent No. 1 while traveling in a Maruti Van bearing registration No. JKS-6870 met with an accident near Mazaar Baba Raday Shah Kora Kapoora Road falling under the jurisdiction of Police Station, Fareedkote (Punjab). The said Maruti Van is stated to have dashed against a Jeep bearing registration No. HRL-5054 coming from the opposite direction. On account of said accident, respondent no. 1 suffered serious injuries, as a result of which he was hospitalized. He suffered fractures on his right leg at two places rendering him permanently disabled. A claim petition came to be filed by him before the Motor Accidents Claims Tribunal, Kathua. 3. FIR No. 26 dated 22.2.1999 was registered in Police Station, Fareedkote. The said FIR has been filed by one Chander Shekher. 4. The Tribunal after hearing the parties passed the aforementioned award. It is this order of the Tribunal, which is subject matter of challenge before this court. 5. I have heard learned counsel for the parties and perused the record.The appellant-company has questioned the award on the following two counts:- 1. That FIR was registered against the driver who was driving the Jeep no. HRL- 5054 and not against the driver of the Maruti Van. 2. That the award has been passed in violation of the terms and conditions of the insurance policy. It was specifically stated that the policy did not cover the risk of the passengers carried by it. 6. On the other hand, the respondents have contended that there is no evidence on the basis of which it can be said that the accident took place due to rash and negligent driving by the Driver of the Jeep No. HRL 5054. The respondents have not produced any witness to support this contention. They failed to prove the conditions of the policy. Only photo-stat copy of the policy has been produced, which has not been proved. 7. It is not in dispute that vehicle in question was insured with the appellant-company. The respondents have placed copy of the policy. The respondents have not produced any witness to support this contention. They failed to prove the conditions of the policy. Only photo-stat copy of the policy has been produced, which has not been proved. 7. It is not in dispute that vehicle in question was insured with the appellant-company. The respondents have placed copy of the policy. While going through the contents of the policy, it stipulates that the vehicle can be used for social, domestic and pleasure purpose and for insureds own business. The policy does not cover use for hire or reward or for organized racing. This policy has not been proved by the respondents. As a matter of fact, the respondents have not examined any witness in support of their case. 8. Issue nos. 1 & 2 have been proved. The issue no. 1 dealt with question of respondent/claimant suffered injuries on account of rash and negligent driving by the driver of the offending Maruti Van bearing registration No. JKS 6870. In respect of issue no. 3, the respondents have failed to adduce evidence and have not been able to discharge its onus of proof. 9. The plea taken by the appellant-company in this appeal is that insurer is not bound to discharge its liability on account of fact that vehicle was being driven in violation of conditions of insurance policy. It was specifically stated that driver of the vehicle did not possess a valid licence at the time of accident. The other contention of the appellant is that vehicle was not used for hire, as such, insurance company is not liable to discharge his liability. 10. There is nothing on record to show that the vehicle was being used for hire purpose. Going by the terms and conditions of the insurance policy produced by the appellant-company, it clearly reveals that vehicle can be used for social, domestic and pleasure purpose and for insureds own business. The appellant has failed to prove that vehicle was being used for hire purpose. The appellant in support of their contentions have relied on the judgments reported in 2008 (4) Supreme 329, entitled, O. I. Co, ltd. Vs. Sudhakaran KV and Ors., 2001 ACJ 2059, entitled, Dr. T.V. Josh Vs. Chacko P.M. Ors., 2002(2) Supreme 170, Liability of Insurance Co. 11. The aforementioned judgments cover the cases where private car is used for hire purpose. Vs. Sudhakaran KV and Ors., 2001 ACJ 2059, entitled, Dr. T.V. Josh Vs. Chacko P.M. Ors., 2002(2) Supreme 170, Liability of Insurance Co. 11. The aforementioned judgments cover the cases where private car is used for hire purpose. Any passenger who is traveling in a private vehicle without taking the policy for covering the risk of passengers, if un-authorisedly carry passengers for hire or reward, the insurance company cannot be mulcted with the liability. There is no dispute with respect to this preposition of law. The appellant company has not proved this fact that the vehicle was on hire. Consequently, no liability can be imposed on it. Failure on their part to prove this fact will not exonerate the appellant company for paying the compensation. 12. The respondents in support of their contentions have placed reliance on the judgments reported in AIR 1994 J&K 1, entitled, New India Assurance Co. vs. Hurmat Begum and Ors, 1998- ACJ, 531 SC, entitled, Amrit Lal Sod and another vs. Kaushelya Devi Thapar and others, 2004 ACJ 701, Madras High Court, entitled Natrajan vs. D. Chanderasekaran (D.B), and 1995 ACJ 974 Karnataka High Court entitled, Shantabai and Ors. Vs. Shekappa and Ors. 13. The principle laid down in the aforementioned judgments is that any person would undoubtedly include an occupant of the car who is gratuitously traveling in the Car. The judgments further reveal that a passenger traveling in a private jeep and was not traveling on hire, the insurance company is liable to pay the entire amount. I, therefore, hold that there is no need to interfere with the award passed by the learned Tribunal. Accordingly, this appeal is dismissed. The record of the Tribunal be send back.