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2018 DIGILAW 923 (RAJ)

NATIONAL INSURANCE CO. LTD. , JAIPUR v. JAGANNATH

2018-04-05

SABINA

body2018
JUDGMENT : Sabina, J. Appellant has filed this appeal, challenging the award dated 20.12.1995 passed by the Tribunal, whereby, appellant was directed to indemnify the insured. 2. Learned counsel for the appellant has submitted that the injured respondent No.1 was travelling in a trolley attached to a tractor after paying the necessary fare. Tractor-trolley in question had been insured with the appellant but the same could have been used for commercial purposes and could not be used for carrying passengers. In these circumstances, the insurance company was liable to be absolved of its liability to indemnify the insured in view of the decision of the Hon'ble Supreme court in New India Assurance Company Limited v. Asha Rani & Ors, (2003) ACJ 1 : ( AIR 2003 SC 607 ), wherein, it has been held as under:- "It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury." 3. None has appeared on behalf of the respondents despite service. 4. Appeal filed by the appellant was initially dismissed by this court. Hon'ble Supreme Court has remanded the case to this court for a fresh decision in accordance with the decision given in Asha Rani's case vide order dated 3.3.2003. 5. Order dated 3.3.2003 passed by the Hon'ble Supreme Court reads as under:- "Heard learned counsel for the parties. Leave granted. The High Court by the impugned judgment dismissed the appeals of the appellants herein following the judgment of this Court in the case of New India Assurance Company v. Satpal Singh & Ors, (2000) 1 SCC 237 : ( AIR 2000 SC 235 ). The said judgment of this Court has since been overruled by a 7-Judge Bench judgment in the case of New India Assurance Co. Ltd. v. Asha Rani & Ors, (2002) 9 SCALE 172 : ( AIR 2003 SC 607 ), therefore, these appeals have to be allowed accordingly the judgment under appeals is set aside. We remand these appeals back to the High Court to dispose of the same in accordance with the judgment of this Court in the case of New India Assurance Co. Ltd. v. Asha Rani and Others. The appeals are allowed." 6. We remand these appeals back to the High Court to dispose of the same in accordance with the judgment of this Court in the case of New India Assurance Co. Ltd. v. Asha Rani and Others. The appeals are allowed." 6. Since, in the present case, the vehicle-in-question was a commercial vehicle and had been insured with the appellant as a commercial vehicle, the same could not have used for carrying passengers. As per the witnesses examined by claimants before the Tribunal, they had paid fare for travelling in the trolley. Thus, in the present case, the vehicle-in-question was being used for purposes other than it had been insured. Hence, the insurance company was not liable to indemnify the insured. 7. Accordingly, this appeal is allowed. It is ordered that the insurance company is not liable to indemnify the insured.