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2019 DIGILAW 2759 (RAJ)

National Insurance Company v. Kamala Devi

2019-10-24

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - Appellant / Insurance Company has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 claiming the following relief:- "It is, therefore, prayed that the appeal be allowed, the impugned award be set aside and the claim petition be ordered to be dismissed as against the appellant with costs through out." 2. An unfortunate accident had happened on 13.01.1997 when deceased Ram Kumar, after doing the work in connection with his engagement with the owner of the tractor bearing registration No.RJ 13-R 9681, was travelling in the tractor; while the said tractor was being driven rashly and negligently by its driver Banwarilal, Ram Kumar fell down from the tractor, resulting into his death. 3. Learned counsel for the appellant / Insurance Company submitted that deceased Ram Kumar, who was travelling in the tractor, admittedly, as a passenger / workman cannot be indemnified by the Insurance Company, in light of the fact that he cannot be considered as a third party. 4. Learned counsel for the appellant / Insurance Company has relied upon the judgment rendered by Hon'ble Apex Court in United India Insurance Company Limited Vs. Tilak Singh & Ors., (2006) 4 SCC 404 ; Oriental Insurance Company Limited Vs. Brijmohan & Ors., (2007) 7 SCC 56 ; The Oriental Insurance Company Limited Vs. Meena Variyal & Ors., (2007) 5 SCC 428 and; National Insurance Company Limited Vs. Savitri, (2013) 11 SCC 554 . 5. Learned counsel for the respondent, however, submitted that the order of pay and recovery can be passed in light of the judgment of Hon'ble Apex Court in the matter of Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors., (2017) 4 SCC 796 and in the matter of National Insurance Company Limted. Vs. Baljit Kaur, (2004) 2 SCC 1 , which is a full Bench of judgment. 6. In his rejoinder argument, learned counsel for the appellant / Insurance Company submitted that in Baljit Kaur (supra), the passenger not covered under the insurance, has been categorically held to be not worth indemnifying in the accidental case. 7. Learned counsel for the appellant / Insurance Company in rejoinder argument further submitted that the earlier case of Savitri and Meena Variyal (supra) have not been considered in the subsequent judgment, and therefore, by adhering to the doctrine of per incuriam, the previous judgments shall prevail. 8. 7. Learned counsel for the appellant / Insurance Company in rejoinder argument further submitted that the earlier case of Savitri and Meena Variyal (supra) have not been considered in the subsequent judgment, and therefore, by adhering to the doctrine of per incuriam, the previous judgments shall prevail. 8. After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that admittedly deceased Ram Kumar was travelling in the tractor, as a passenger / workman, and thus, the Insurance Company is not required to indemnify any claim arising out of death of Ram Kumar. 9. In view of the above, the appeal is allowed to the extent that the liability created in the impugned award shall lie upon the other respondent excluding the Insurance Company / appellant. However, it is made clear that in case any amount has already been paid and received by the claimant, the Insurance Company shall have a limited right to recover the same from the owner of the tractor. All pending applications stand disposed of.