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2019 DIGILAW 445 (MP)

United India Insurance Company Ltd. v. Anguribai

2019-06-25

G.S.AHLUWALIA

body2019
ORDER 1. This miscellaneous appeal under section 173 of Motor Vehicles Act has been filed against the award dated 29.11.2013 passed by 8th Motor Accident Claims Tribunal, Gwalior in Claim Case No. 149/2012. 2. Since the factum of accident has not been denied by the parties, therefore, suffice it to say that the deceased Bhagirath aged about 45 years lost his life in a vehicular accident which took place on 15.3.2012. 3. Challenging the findings given by the Claims Tribunal by which the Insurance Company has been held to be liable, it is submitted by the counsel for the appellant/Insurance Company that since the deceased was traveling in a transport vehicle and, therefore, the Insurance Company is not liable to indemnify the insured because of violation of terms and conditions of insurance policy. 4. Per contra, the counsel for the claimants by inviting the attention of this Court to the evidence of Pancham (PW2) and Narendra Singh (PW3), submitted that the villagers had purchased the transformer and the deceased was travelling in the offending vehicle as a representative of the owners of the transformer and since the offending vehicle was a small transport vehicle (Vikram Loading Auto), therefore, he did not have any space to sit in the cabin and under these circumstances, it cannot be said that any terms and conditions of the insurance policy has been violated and the Claims Tribunal has rightly held that the Insurance Company is jointly and severally liable to pay compensation. 5. Heard the learned counsel for the parties. 6. It is submitted by the counsel for the appellant that since the deceased was not sitting in the cabin of auto but he was sitting with the transformer and, therefore, in the light of the judgment passed by the Supreme Court in the case of National Insurance Company Limited v. Cholleti Bharatamma and ors. reported in (2008) 1 SCC 423 , the Insurance Company is not liable to pay compensation. 7. It is the case of the claimants that the transformer was being transported in a Vikram Loading Auto. Thus it is clear that the offending vehicle was a small auto rickshaw type loading vehicle in which there is no cabin so that the owner of the goods can sit in the cabin. The Co-ordinate Bench of this Court in the case of Bajaj Allianz General Insurance Co. Thus it is clear that the offending vehicle was a small auto rickshaw type loading vehicle in which there is no cabin so that the owner of the goods can sit in the cabin. The Co-ordinate Bench of this Court in the case of Bajaj Allianz General Insurance Co. Ltd. v. Prem Bai and ors. reported in 2016 ACJ 1634 after considering the judgment passed by the Supreme Court in the case of Cholleti Bharatamma (supra) has held as under : "6. If the entire judgment of the apex Court is perused, then it is decided that the owner of the goods and his representative can travel in the goods vehicle and the insurance company is liable to pay compensation. In the present case, the vehicle was a small autorickshaw type loading vehicle in which there was no cabin so that the owner of the goods could sit in the cabin. In the case of Cholleti Bharatamma (supra) the apex Court did not express the view that if a representative of the owner of the goods is not sitting in the cabin then it would be the violation of the policy condition. Hence, it is not so material that the deceased was sitting in the cabin or not." 8. Thus, this Court is of the considered opinion that in absence of evidence to show that there was any space in the cabin of the auto rickshaw for the deceased to sit, it cannot be said that the deceased was allowed to travel in the auto rickshaw in violation of the terms and conditions of the insurance policy. 9. Accordingly, this Court is of the considered opinion that the Claims Tribunal did not commit any mistake in holding that the Insurance Company is jointly and severally liable to pay the compensation. Accordingly, the award dated 29.11.2013 passed by 8th Motor Accident Claims Tribunal, Gwalior in Claim Case No. 149/2012 is hereby affirmed. 10. The appeal fails and is hereby dismissed.