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2009 DIGILAW 651 (CAL)

National Insurance Co. Ltd. v. Sunita Ghosh

2009-08-24

B.Bhattacharya, Prasenjit Mandal

body2009
JUDGMENT Bhattacharya AND Mandal, JJ. 1. THIS appeal is at the instance of the insurance company and is directed against an award dated 10.9.2007 passed by the Motor Accidents Claims Tribunal, Second Court, Burdwan, in M.A.C. Case No. 491 of 2006 thereby disposing of the claim application under section 166 of the Act by directing the insurance company to pay a sum of Rs. 2,65,500 with interest at the rate of 8 per cent per annum from the date of filing of the claim application till realization of the entire amount. Both the owners of the vehicle and the insurance company were, however, held liable. 2. BEING dissatisfied, the insurance company has come up with the present appeal. A pure question of law arises for determination in this appeal. 3. THERE is no dispute that the vehicle concerned was a goods vehicle and the said vehicle was hired by the victim for the purpose of carrying chhana to Durgapur. The accident, however, occurred not at the time when those goods were being carried to Durgapur; it occurred at the time of coming back when the vehicle was empty, but the hirer was travelling in the said empty vehicle. 4. THE learned Tribunal below, however, held that the insurance company was liable to pay the amount. Before this court, when the appeal was taken up for hearing, as Mr. Banik, the learned advocate appearing on behalf of the claimants-respondents, vehemently contended before us that the onus was upon the insurance company to show that it had not taken any extra premium even for covering the accident where gratuitous passengers are involved and in the absence of the original insurance policy we should hold against insurance company, Mr. Das, the learned advocate appearing on behalf of the appellant, came with an application under Order 41, rule 27 of the Civil Procedure Code thereby praying for relying upon the duplicate copy of the insurance policy kept with the insurance company. It appears from the said document that the insurance company had not taken any other liability than one prescribed under section 147 (1) of the Motor Vehicles Act, 1988. 5. WE, accordingly, admitted the said document as additional evidence as the same was necessary for effective adjudication of the disputes involved in this appeal. WE gave liberty to Mr. Banik's client to produce evidence in rebuttal. Mr. 5. WE, accordingly, admitted the said document as additional evidence as the same was necessary for effective adjudication of the disputes involved in this appeal. WE gave liberty to Mr. Banik's client to produce evidence in rebuttal. Mr. Banik, however, fairly conceded that in view of the fact that the duplicate copy of the policy has been produced before us, he did not dispute the genuineness of such document and as such, did not avail of opportunity to give evidence in rebuttal. 6. AFTER hearing the learned counsel for the parties and after going through the materials on record, we are of the view that in this case, admittedly, the victim having died at the time of coming back from Durgapur when the goods which he intended to carry was no longer there, his position was no better than that of a gratuitous passenger and, therefore, it is the owner of the vehicle who was alone liable to pay compensation. The position would have been different if at the time of going to Durgapur with the goods the accident occurred and in that event, the liability would have fallen upon the insurance company. We, therefore, find that in the facts of the present case, the learned Tribunal erroneously made the insurance company liable for the compensation. 7. WE, accordingly, modify the award impugned thereby exonerating the insurance company of the liability to make payment of the amount and by restricting the liability to the owner of the vehicle alone. 8. THE appeal is, thus, allowed. The owner of the vehicle, respondent No. 5 is directed to pay the awarded sum since modified by us within a month from today. 9. SINCE we have already allowed the appeal, the insurance company is permitted to withdraw the entire amount deposited before the learned Registrar General of this court. 10. IN view of disposal of the appeal itself, the connected appeal being CAN 444 of 2008 has become infructuous and the same is disposed of accordingly. Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities. Appeal allowed.