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2012 DIGILAW 1133 (RAJ)

New India Assurance Co. Ltd. v. Chotti Devi

2012-05-04

MOHAMMAD RAFIQ

body2012
RAFIQ, J.—This appeal has been filed by the appellant-insurance company against the award passed by the Motor Accident Claims Tribunal, Tonk dated 5.12.2001. 2. Contention of learned counsel for the appellant is that the deceased was travelling in the vehicle as a passenger, whereby the policy conditions of the insurance were violated, therefore, the insurance company be exonerated from the liability of payment of compensation. 3. Shri Sandeep Mathur, learned counsel for the claimant-respondent has argued that the deceased was travelling in the vehicle as a non-fare paying passenger and risk of non-fare paying passenger is covered because the premium has been charged by the insurance company. 4. Shri Tripurari Sharma, learned counsel for the appellant has argued that the deceased in the present case, cannot be considered to be a non-fare paying passenger because he was travelling in the vehicle as owner of the goods and for that purpose Sec. 147 could not cover the risk of the owner of the goods prior to amendment brought about in Sec. 147 w.e.f. 14.11.1994 as held authoritatively by Supreme Court in New India Assurance Co. Ltd. vs. Asha-Rani- (2003) 2 SCC 223 . 5. Although, Shri Sandeep Mathur, learned counsel for the claimant has sought to argue with the help of judgement in M/s. National Insurance Co. Ltd. vs. Baljit Kaur & Ors.- AIR 2004 SC 1340 that Supreme Court has diluted the law laid down by Asha Rani, supra to say that the amendment has prospective application, but I am not inclined to upheld the aforesaid submission. 6. The Supreme Court in the case of Baljit Kaur, supra had taken the same approach and has observed that in view of peculiarity attached to that case, interest of justice would be sub-served if the appellant in that case i.e. insurance company is directed to satisfy the award, if not already satisfied, and recover the same from the owner of the vehicle for which purpose the insurance company would not be required to file the separate suit, but may directly institute a proceeding before the executing court, but that direction was issued by the Supreme Court in exercise of its extraordinary power under Article 142 of the Constitution. The ratio of the judgment of Supreme Court in Asha Rani still holds feet. The ratio of the judgment of Supreme Court in Asha Rani still holds feet. The judgement of Supreme Court in Baljit Kaur, supra arose out of a case where death of a gratuitous passenger has taken place. 7. Subsequently, the Supreme Court in National Insurance Co. Ltd. vs. Prema Devi & Ors.- (2008) 5 SCC 403 , the judgement of Baljeet Kaur was considered which too arise out of case of gratuitous passenger and it was held that the insurance company cannot be held liable to satisfy and in doing so number of other judgements were relied. In United India Insurance Co. Ltd. vs. Suresh K.K. & Anr.- (2008) 12 SCC 657 = 2009(1) CCR 33 (SC) also the similar view was reiterated by the Supreme Court. 8. On hearing learned counsel for the parties, the appeal is allowed in part. The 50% amount of compensation, having already been paid to the claimants, the insurance company would be entitled to get remaining 50% deposited in the FDR. However, the claimant would be entitled to recover the same from the owner of the vehicle.