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2014 DIGILAW 108 (GAU)

ORIENTAL INSURANCE CO. LTD. v. ABDUL RAZEK

2014-01-28

B.P.KATAKEY

body2014
ORDER These appeals, by the Insurance Company, are directed against the common award dated 7th October, 2002 passed by the learned Member, Motor Accident Claims Tribunal, Kamrup at Guwahati in MAC Case No.272/1998 and MAC Case No.273/1998, awarding an amount of Rs.78,000/- and Rs.90,000/-, respectively, as compensation, inclusive of no fault award, with interest @ 9% per annum from the date of filing the claim petitions till the date of payment, for the injuries sustained by the claimants/respondents in a motor accident occurred on 20th April, 1998 at about 5:00 PM involving the motor vehicle bearing registration No.AMZ-1169 (Truck), in which the claimants were travelling as gratuitous passenger. [2] The respondents/claimants filed the applications seeking compensation under the provisions of the Motor Vehicles Act, 1988 (in short, “the Act”) claiming compensation, which have been registered as MAC Case Nos.272/1998 and 273/1998, contending inter alia that while they were travelling in the motor vehicle bearing registration No.AMZ-1169 (Truck) on 20th April, 1998, which is a goods carrying vehicle, it met with an accident at about 5:00 PM at National Highway No.37 near Rina Petrol Pump (Nelli), as a result of which, they have suffered bodily injuries, resulting in the permanent disablement. [3] The said applications have been contested by the Insurance Company by filing written statements denying the claim and also contending that they being the gratuitous passenger, the Insurance Company is not liable to pay compensation, there being violation of the policy condition. The owner of the motor vehicle did not contest the said proceeding. [4] The claimants in support of the claim examined 3(three) witnesses. The Insurance Company has also examined 1(one) witness. The witnesses were cross-examined by the respective parties. [5] The Tribunal, upon appreciation of the evidence on record, awarded the aforesaid amounts as compensation. Hence, the present appeals. [6] I have heard Mr. S.K. Goswami, learned counsel for the appellant and Ms. P. Bora, learned counsel appearing for the respondent No.1/claimants in both the appeals. The owner has not contested the present proceedings. [7] Mr. [5] The Tribunal, upon appreciation of the evidence on record, awarded the aforesaid amounts as compensation. Hence, the present appeals. [6] I have heard Mr. S.K. Goswami, learned counsel for the appellant and Ms. P. Bora, learned counsel appearing for the respondent No.1/claimants in both the appeals. The owner has not contested the present proceedings. [7] Mr. Goswami, learned counsel appearing for the appellants referring to the pleadings in the claim petitions as well as the evidence adduced has submitted that since the claimants admittedly were gratuitous passengers in respect of the goods carrying vehicle, namely, the truck involved in the accident, the Insurance Company cannot be saddled with the responsibility of satisfying the award passed by Tribunal, there being violation of the conditions of the Insurance Policy (Exhibit-A). The learned counsel further submits that the learned Tribunal was not correct in saddling the responsibility of satisfying the award on the Insurance Company by holding that the Exhibit-A Insurance Policy does not debar carrying passengers. The learned counsel, therefore, submits that the direction issued by the Tribunal to satisfy the award by the Insurance Company may be set aside. [8] Ms. Bora, learned counsel appearing for the claimants, on the other hand, has submitted that though the claimants were the gratuitous passengers in respect of the goods carrying vehicle (truck), since there is no interim order passed by this Court, the Insurance Company ought to have deposited the entire amount as awarded by the Tribunal by taking into account Rs.50,000/- already deposited towards the no fault liability and also the statutory deposit made at the time of filing the appeals before this Court and hence, the Insurance Company may be directed to deposit the entire amount, less the aforesaid amounts already deposited, with liberty to the Insurance Company to recover the same from the owner of the offending vehicle. [9] The Insurance Company has preferred these appeals only on the ground that the claimants being the gratuitous passengers, the Insurance Company is not liable to satisfy the award in terms of the Policy of Insurance (Exhibit-A). This Court is, therefore, not required to go into the other aspects of the matter including the quantum of compensation awarded, except the liability of the Insurance Company. [10] In the claim petitions filed, the claimants have pleaded that they were travelling in the goods carrying vehicle (Truck) as gratuitous passengers. This Court is, therefore, not required to go into the other aspects of the matter including the quantum of compensation awarded, except the liability of the Insurance Company. [10] In the claim petitions filed, the claimants have pleaded that they were travelling in the goods carrying vehicle (Truck) as gratuitous passengers. They, however, tried to improve their case while giving evidence before the Tribunal by saying that they were also carrying goods alongwith them, though the same was not pleaded in the applications filed seeking compensation. Except the statement made by the claimants that they were also carrying goods in the truck, there is no evidence led by the claimants that they hired the vehicle for carrying the goods. Exhibit-A, Insurance Policy also reveals that the Insurance Company is not liable to pay compensation for carrying of gratuitous passenger in the vehicle. The said policy is “act only” policy and not of “comprehensive policy”. [11] That being the position, the Insurance Company cannot be saddled with the responsibility of satisfying the award passed by the learned Tribunal. The responsibility of payment of the compensation under the award rests on the owner of the offending vehicle, namely, the respondent No.2 in these present appeals. [12] In the instant case, though no interim order was passed by this Court in the appeals, the Insurance Company has not deposited the whole amount awarded, which has, however, deposited Rs.50,000/- in each of the MAC Cases towards no fault liability and Rs.25,000/-, each, as statutory deposits before this Court while filing the present appeals. The contention of the learned counsel appearing for the appellants that since the Insurance Company, under the policy, is not liable to pay any compensation, no direction may be issued to satisfy the award with liberty to recover the same from the owner of the offending vehicle, cannot be accepted for the reason that there being no interim order passed, the Insurance Company for the last 10(ten) years has not deposited the awarded amount. Hence, the Insurance Company is directed to deposit the remaining amount as awarded by the Tribunal together with interest taking into account the aforesaid amounts already deposited. Liberty is also given to the Insurance Company to initiate appropriate proceeding before the Tribunal for recovery of the entire amount from the owner of the offending vehicle bearing registration No.AMZ-1169 (Truck). Hence, the Insurance Company is directed to deposit the remaining amount as awarded by the Tribunal together with interest taking into account the aforesaid amounts already deposited. Liberty is also given to the Insurance Company to initiate appropriate proceeding before the Tribunal for recovery of the entire amount from the owner of the offending vehicle bearing registration No.AMZ-1169 (Truck). [13] The Registry is directed to release the statutory deposits made by the Insurance Company to the claimants together with interest, if any, accrued thereon, by account payee cheques and on being identified to the satisfaction of the Registrar General of this Court. [14] The appeals are accordingly allowed to the extent indicated above. No costs.