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2017 DIGILAW 78 (JK)

S. T. Motors v. Shabir Ahmed Lone

2017-02-20

MOHAMMAD YAQOOB MIR

body2017
Judgment (Oral) 1. Award passed by Motor Accident Claims Tribunal, Udhampur dated 26th of September, 2013 and the order dated 21.11.2016, whereunder an application for setting aside the ex-parte award has been rejected, are the subject matter in this appeal. 2. This case has its own chequered history. Considerable delay in final disposal of the case is totally to the disadvantage of the claimants. 3. The short controversy is, as to whether the Insurance Company is liable to indemnify the respondent No.1. 4. Respondent No.1 (claimant) in whose favour the award has been passed was a gratuitous passenger travelling in a petrol tanker, which met with an accident. Whether liability is of the insurance Company or of the owner, same question has been answered in favour of the insurance company in terms of the ex-parte award dated 26.9.2013. The owner and driver (present appellants) have been held liable to pay the award amount. 5. Brief facts of the case: 6. The accident occurred near Jakhani at Udhampur on 11.10.1994 when Tanker No. JKC-9826 in which amongst others, respondent No.1 was also travelling, who got injured. Three other co-passengers died. Four claim petitions bearing Claim File Nos. 97/95, 98/95, 55/95 and 56/95 were disposed of by a common judgment by the MACT, Udhampur. The claimants were held entitled to compensation whereas, respondent No.1, who was ‘the claimant in Claim File No. 97/95 was held entitled to an amount of Rs. 3,84,000/- along with interest @ 12% P.A. Insurance Company was fastened with the liability to indemnify. 7. Against the said judgment, four appeals bearing CIMA Nos.65-A/1999, 66-A/1999, 63-A/1999 and 64/1999 were filed. All the four appeals were disposed of by a common judgment dated 26.9.2001. CIMA Nos.65-A/1999 and 66/1999 were dismissed. In CIMA No.63-A/1999, amount of compensation was varied whereas, CIMA No.64/1999 which pertained to the respondent No.1 was adjourned for further hearing. Before that could be decided, LPA Nos.132/2001, 133/2001 and 134/2001 were filed without any success as the same stands dismissed vide judgment dated 1.12.2005. 8. Subsequent thereto, CIMA No. 64/1999 was decided vide detailed judgment dated 19.12.2002. The case was remanded to the Motor Accident Claims Tribunal, Udhampur for its disposal in accordance with law with a direction that the opportunity should be given to the parties to lead evidence. The doctor be also examined as a witness. 8. Subsequent thereto, CIMA No. 64/1999 was decided vide detailed judgment dated 19.12.2002. The case was remanded to the Motor Accident Claims Tribunal, Udhampur for its disposal in accordance with law with a direction that the opportunity should be given to the parties to lead evidence. The doctor be also examined as a witness. All the points were left to the decision of the Motor Accident Claims Tribunal, Udhampur, In compliance whereof, learned Tribunal after hearing the parties, except the appellants (owner and driver) because they did not appear, passed the award in favour of respondent No.1 on 21.11.2006 for an amount of Rs.6,45.000/- but the owner and driver had been fastened with the liability to pay the amount of compensation. 9. The contention and the issue for determination is as to whether the insurance company shall be liable to indemnify. In this connection, issue No. 4 has been specifically framed and the learned Tribunal has recorded a finding that the respondent No. 1-Shabir Ahmed Lone was a gratuitous passenger, insurer is not liable to indemnify the insured (owner of the offending vehicle). In support, he has placed reliance on the judgment of the Apex Court reported in 2006(3) Supreme 332 . 10. All along from the year 1999, it appears that the owner and the driver have been silently watching the proceedings as fence sitters. When the liability was fastened against them, they filed an application seeking setting aside of the ex parte award dated 21.11.2006 but without any success as the application has been dismissed vide order dated 26.9.2013. 11. Learned Tribunal has passed a well reasoned order and has correctly observed that the driver and owner all through have been irresponsible and irresponsive. They have been silently watching the proceedings as fence sitters in spite of having notice of pendency of claim petition against them. 12. Learned counsel confronted with the findings recorded by the Tribunal has made an effort to claim that the appellants were not served at all. 13. Now, turning to the point as to whether the liability has been correctly fastened, that, in fact, is the center of the controversy. In this behalf, learned counsel would contend that when the Tribunal initially decided all the four petitions including the claim petition of the respondent No.1, a specific issue was framed i.e. issue No. 4 threrein. The learned Tribunal in its judgment dated 28. In this behalf, learned counsel would contend that when the Tribunal initially decided all the four petitions including the claim petition of the respondent No.1, a specific issue was framed i.e. issue No. 4 threrein. The learned Tribunal in its judgment dated 28. 11. 1998 has returned a finding that too after relying on a judgment of this court reported in 1998 KLJ and has concluded that the insurance company was liable to indemnify. Matter was taken up in appeal, same finding was confirmed. Now it is not open to question. 14. The contention of learned counsel at the first blush was found to be attractive but on scrutiny, it is totally without any substance. So far as the award in favour of respondent No.1 is concerned, same has been set aside in the appeal and the case remanded to the Tribunal for deciding it afresh. Evidence has been led again and issue No.4 has been framed regarding liability to be fastened. The learned Tribunal has recorded a finding that the insurance company is not liable to indemnify. The earlier finding recorded no more exists vis-a-vis the respondent No.2. 15. Learned counsel appearing for the respondent No.2 while placing reliance upon the judgment rendered by the Apex Court in the case of New India Insurance Co. Ltd. Vs. Vedwati and Ors, 2007 ACJ 1043 contends that the insurance company by no stretch of imagination is liable to indemnify vis-a-vis gratuitous passengers. Para 14 of the judgment, in this behalf, is relevant to be quoted. “The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.” 16. Mr. P.N. Goja, learned counsel appearing for respondent No.1 (claimant) also relied on the judgment rendered by the Apex Court in the case of M/s National Insurance Co. Ltd vs. Baljit Kaur & Ors, 2004 AIR (SCW) 212. Para 7 of the judgment is relevant to be quoted. “In the case of New India Assurance Co. Ltd. Vs. Mr. P.N. Goja, learned counsel appearing for respondent No.1 (claimant) also relied on the judgment rendered by the Apex Court in the case of M/s National Insurance Co. Ltd vs. Baljit Kaur & Ors, 2004 AIR (SCW) 212. Para 7 of the judgment is relevant to be quoted. “In the case of New India Assurance Co. Ltd. Vs. Asha Rani (supra), it was held that the previous decision in Satpal Singh case, was incorrectly rendered, and that the words “any person” as used in Section 147 of the Motor Vehicles Act, 1988 would not include passengers in the goods vehicle, but would rather be confined to the legislative intend to provide for third party risk. The question in the subsequent judgment in Oriental Insurance Co. Ltd. V. Devireddy Konda Reddy (supra), involved, as in the present case, the liability of the insurance company in the event of death caused to a gratuitous passenger travelling in a goods vehicle. The Court held that the Tribunal and the High Court were not justified in placing reliance upon Satpal Singh case (supra), in view of its reversal by Asha Rani (supra), and that, accordingly, the insurer would not be liable to pay compensation to the family of the victim who was travelling in a goods vehicle.” 17. In view of the clear position of law, it can be safely concluded that the insurance company is not liable to indemnify vis-a-vis the claim of the gratuitous passenger. The finding recorded by the learned Tribunal could not be found fault with. Both the judgment dated 21.11.2006 i.e., the award and the order dated 26.9.2013 whereunder application for setting aside ex parte award has been rejected do not call for any interference so are upheld. 18. Viewed thus, the appeal is found to be without any merit so is accordingly dismissed along with connected MP(s).