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2018 DIGILAW 1217 (GUJ)

UNITED INDIA INSURANCE CO LTD v. BAI SAVITABEN

2018-10-30

MOHINDER PAL

body2018
JUDGMENT MOHINDER PAL, J. 1. All these appeals are taken up together having common question of law and arising from the same accident. 2. These appeals are against the award dated 2.4.2009 passed by the Motor Accident Claims Tribunal (Auxi), 1st Fast Track Court, Panchmahals at Godhra in Motor Accident Claim Petitions No. 809/95, 810/95, 811/95, 812/95, 813/95, 814/95, 815/95, 817/95, 901/95 consolidated with MACP No. 1154/95, in which, respective awards have been passed along with interest @ 9% per annum from the date of filing of the claim petition up to 31.12.2000 and thereafter, at 7.5% until its realization. The appellant being Insurance Company of the Trucks involved in the accident has come in appeal. 3. The facts of the present case are that deceased persons as well as injured claimants of the said claim petitions were doing work as a labourers on motor truck No. GJ-17-T-3110 owned by the original opponent no. 2. On 21.5.1995, the deceased persons as well as injured claimants were travelling in the said truck as labourers. They were going towards Vaghjipur for loading the wheat bags and after loading the wheat bags, they were returning to Godhra in the said truck. The original opponent no. 1 was driving the said truck in rash and negligent manner and with an excessive speed. At about 18.00p.m., when the said truck was passing through the sim of village Dumelav, near curve, on Vaghjipur to Godhra road, the original opponent no. 1 could not control over the truck due to excessive speed and the truck left the road and then turned turtle. Due to this accident, Mohanji, Budhabhai, Shanabhai, Dhanabhai, Kokilaben as well as Gemabhai died, whereas, Kamlaben, Sardarsinh, Ramanbhai, minor Nandaben and minor Amitaben sustained permanent partial disability due to the injuries in the said accident. Therefore, the dependents of the deceased and injured persons have filed the aforementioned claim petitions to get the compensation. The Tribunal vide impugned judgment and award, has awarded the compensation, against which, the Insurance Company has preferred the present appeals. 4. Learned counsel for the appellant-Insurance Company has submitted that the Tribunal erred by not considering the fact that the deceased and injured were gratuitous passengers travelling in goods vehicle, and therefore, Insurance Company cannot be held liable to pay the compensation. 4. Learned counsel for the appellant-Insurance Company has submitted that the Tribunal erred by not considering the fact that the deceased and injured were gratuitous passengers travelling in goods vehicle, and therefore, Insurance Company cannot be held liable to pay the compensation. It is also submitted that the Tribunal has erred in considering that some passengers were employees of owner and without identifying the employees and some persons were mid-way passengers, and without such pleadings, the Tribunal has considered the mid-way passengers and employees of the truck and passed the award which requires to be set aside. 5. Notice was served upon the respondents. However, no reply has been filed. 6. Learned counsel appearing on behalf of the appellant-Insurance Company has submitted that the truck in question was insured with the Insurance Company as goods carrier. According to him, the passengers traveling in the Truck were gratuitous passengers who have paid fare for traveling and once they are gratuitous passengers, in view of the law laid down by the Apex Court, the Insurance Company of Truck GJ-17- T-3110 could not have been held liable to pay the compensation. In support of these arguments, he has also referred to the cross examination of the witnesses available on file. 7. This Court has considered the arguments of both the sides. The main arguments of learned counsel for the petitioner are on the point that the travelers being gratuitous passengers, Insurance Company cannot be held liable to pay the compensation. In order to ascertain the fact that the persons traveling in the Truck were gratuitous passenger, he has referred to the pleadings of the parties and findings recorded by the Tribunal, wherein, it has been said that in the Truck Registration No. GJ-17-T-3110, the passengers traveling were midway passengers/gratuitous passengers. 8. From the ocular version as well as from the cross examination brought on record, this Court has no doubt that the passengers traveling in the Truck were gratuitous passengers and the truck in question was registered as vehicle for commercial purposes to carry the goods. 9. The question regarding liability of the Insurance Company in the case of gratuitous passengers travelling in the commercial vehicle has been discussed by the Apex Court in the judgment reported in the case of National Insurance Co. Ltd. V/s. Rattani and Others, (2009) ACJ 925. 9. The question regarding liability of the Insurance Company in the case of gratuitous passengers travelling in the commercial vehicle has been discussed by the Apex Court in the judgment reported in the case of National Insurance Co. Ltd. V/s. Rattani and Others, (2009) ACJ 925. This decision has been further followed by our own High Court in a case of United India Insurance Company Ltd. V/s. W/o. Decd. Bhikhabhai Premjibhai Kathiriya and Others made in First Appeal No.2121 of 2008 dated 18.11.2013. 10. Hon'le Apex Court in the case of National Insurance Co. Ltd. V/s. Rattani and Others has held that, "We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accident were traveling in the truck as gratuitous passengers and in that view of the matter the appellant herein was not liable to pay the amount of compensation to the claimants". Similarly, our own High Court in the case of United India Insurance Company Ltd. V/s. W/o. Decd. Bhikhabhai Premjibhai Kathiriya and Others has held that, where persons were traveling as gratuitous passengers in a goods vehicle, the Insurance Company cannot be held liable to pay the compensation, and the directions that the amount be first paid by the Insurance Company and to recover the same from driver and owner of the vehicle, can only be given in exercise of powers conferred under Article 142 of the Constitution of India by the Supreme Court in peculiar facts and circumstance of the case. However, High Court and the Courts below are not within their jurisdiction to pass such orders. 11. As discussed in the afore-going paragraphs, the appellant-Insurance Company of the Truck No. GJ-17-T-3110 could not be held liable to pay the compensation payable to the claimants. 12. In view of the aforementioned discussions, First Appeals 982/2010 to 991/2010 preferred by the United India Insurance Co. Ltd. are allowed. The Insurance Company is absolved of its liability to pay the compensation to the claimants. The claimants shall be at liberty to recover the same from the driver and owner of the Truck bearing registration No. GJ-17-T-3110 with 9% interest. The Appellant-Insurance Company are entitled to refund the amount lying in the Tribunal with accrued interest. Ltd. are allowed. The Insurance Company is absolved of its liability to pay the compensation to the claimants. The claimants shall be at liberty to recover the same from the driver and owner of the Truck bearing registration No. GJ-17-T-3110 with 9% interest. The Appellant-Insurance Company are entitled to refund the amount lying in the Tribunal with accrued interest. If any amount received by the claimants in pursuance to earlier order by this Court, the said amount with 9% interest would be recovered by the Insurance Company from the driver and owner of the vehicle. 13. All these appeals are disposed of accordingly.