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2010 DIGILAW 235 (ALL)

UNITED INDIA INSURANCE COMPANY LTD. v. SHIVNATHI

2010-01-19

SANJAY MISRA

body2010
JUDGMENT : SANJAY MISRA, J. 1. The final hearing of the cause list has been revised. Mr. Vipul Kumar, Learned Counsel for the Appellant, is present. None appears on behalf of the Respondents. 2. This first appeal from order has been filed against the award dated 17.1.2004 in Motor Accident Claim Petition No. 418 of 1993, Shivnathi v. Narmada Prasad passed by the Motor Accidents Claims Tribunal/ Additional District Judge, Court No. 17, Allahabad, at the instance of United India Insurance Company Ltd. Permission u/s 170 of the Motor Vehicles Act was granted by the Tribunal on 9.8.2000. 3. Mr. Vipul Kumar, Learned Counsel for the Appellant, has referred to the findings recorded by the Tribunal on issue No. 1 and states that the finding was that the deceased Bhawar Singh was travelling on the bonnet of the tractor, when the accident occurred and he was found to have come under the wheels. He states that a tractor is used only for agricultural purposes and no passenger can sit on the bonnet and, therefore, the Tribunal having not found the reason of death to be due to rash and negligent driving by the driver of tractor has awarded compensation u/s 140 of the Motor Vehicles Act. According to him, the insurance company could not be made liable under the aforesaid provision, which provides that the liability is to be of the owner or owners of the vehicles. Learned Counsel for the Appellant has further stated that the Tribunal has committed an illegality in not giving the right to the insurance company to recover the amount of compensation from the owners. 4. He has placed reliance on a decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Rattani and Others, (2009) 2 SCC 75 , to state that when a gratuitous passenger is not permissible under the insurance policy, it would be breach of terms and conditions of such policy and the insurance company cannot be made liable to pay the amount of compensation to the claimants. 5. Ltd. Vs. Rattani and Others, (2009) 2 SCC 75 , to state that when a gratuitous passenger is not permissible under the insurance policy, it would be breach of terms and conditions of such policy and the insurance company cannot be made liable to pay the amount of compensation to the claimants. 5. Having considered the submission of the Learned Counsel for the Appellant and perused the record, it is quite clear that the Tribunal has not found any rash and negligent driving by the driver of the tractor and has concluded that the claimants would be entitled to compensation under the no fault principle, since the death occurred from an accident arising out of the use of motor vehicle. There is no evidence on record to enable this Court to interfere with the finding that death of Bhawar Singh occurred due to an accident arising out of the use of motor vehicle and as such the said finding would stand confirmed. 6. In so far as making the insurance company liable u/s 140 of the Motor Vehicles Act without giving right to recover the amount of compensation awarded u/s 140 from the owner is concerned, the same appears to be suffering from an error in law. When a passenger cannot travel on the bonnet of the tractor under the insurance policy then the accident which occurred due to negligence of such passenger cannot entitle the claimants to demand compensation from the insurance company, even if the finding is that the driver was not driving the vehicle rashly and negligently, primarily because the provision of Section 140 relates to liability to pay compensation on the principle of no fault by the owner of the vehicle and not the insurance company and secondly that deceased was travelling on the bonnet of the tractor which was in violation of the insurance policy and hence the insurance company could not be made liable to pay compensation for such occurrence without a right to recover the amount from the owner. It is stated that the Appellant has deposited the entire decretal amount and by the interim order dated 20.4.2004, the claimant-Respondent No. 1 was made entitled to withdraw half of the amount without security and remaining half of the amount with security. From the aforesaid circumstances, it appears that claimant-Respondent has been paid the entire amount. 7. It is stated that the Appellant has deposited the entire decretal amount and by the interim order dated 20.4.2004, the claimant-Respondent No. 1 was made entitled to withdraw half of the amount without security and remaining half of the amount with security. From the aforesaid circumstances, it appears that claimant-Respondent has been paid the entire amount. 7. In view of the aforesaid circumstances, the Appellant insurance company could not be made liable to pay the compensation without giving right to recover it from the person/owner of the vehicle. Consequently, the appeal stands allowed. The Appellant insurance company shall have the right to recover the amount of compensation paid by it to the claimants from the owner of the tractor No. 70-D 9277 as on 7.7.1993. No order is passed as to costs.