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2021 DIGILAW 1557 (RAJ)

New India Assurance Company Limited v. Gheesa Ram

2021-08-19

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. Since these appeals arise out of the common judgment dated 22.11.1999 passed by the Motor Accident Claims Tribunal, Sojat City Camp Jaitaran, therefore, they are being disposed of by this common judgment. 2. The present appeals were preferred against the judgment and award dated 22.11.1999 passed by the Motor Accident Claims Tribunal, Sojat City Camp Jaitaran in Claim Case No. 15/97 and 16/97, whereby the learned Tribunal while deciding the claim petitions of the respondents-claimants awarded compensation to the tune of Rs.19,000/- and Rs.1,15,000/- respectively. 3. Learned Tribunal after framing of the issues, evaluating the evidence and after hearing the counsel for the parties, decided the claim petition of the claimants. 4. Learned counsel for the appellant-Insurance Company has assailed the finding of the Tribunal on issue No.2. He submits that while awarding the compensation against the appellant, the learned Tribunal in its finding treated the injured respondent as third party. He further submits that it is apparent on the face of the record that the vehicle insured with the appellant was a goods carrying vehicle and the respondent-claimants were travelling as fare pay passengers. He submits that the factum of the respondent-claimants travelling as fare payee passengers is proved from the pleadings of the claim petitions preferred by the respondent-claimants before the Tribunal which are reproduced as under:- 5. He therefore submits that the finding recorded on issue No.2 treating the injured persons as third party is contrary to the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Savitri Devi & Ors. (2013) 11 SCC 554 . 6. Per contra, learned counsel appearing for the respondents-claimants submits that the finding of fact arrived at by the Tribunal does not call for any interference by this Court on the ground that the Tribunal appreciated the material brought on record before arriving at the conclusion. He therefore prays that the appeals preferred by the Insurance Company may be dismissed and the claimants may be allowed the compensation as awarded by the Tribunal. 7. I have considered the submissions made at the Bar and have gone through the judgment as well as the record of the case. 8. The factum of the accident with the offending vehicle is not disputed. 7. I have considered the submissions made at the Bar and have gone through the judgment as well as the record of the case. 8. The factum of the accident with the offending vehicle is not disputed. However, it has come on record by the conclusive evidence that the vehicle involved in the accident was a goods carrying vehicle and therefore, it was not open for the respondent-claimants to travel in the same as a passenger. It is also noted that in the pleadings of the respondents-claimants before the Tribunal, they stated that claimants were travelling in the subject truck from Kaneja to Beawar after paying the fare to the driver of the truck. Thus, it is apparent on the face of record that the respondents-claimants were traveling in the goods carrying vehicle as passengers and the same was not permitted. Since the Insurance Company had not covered the risk of the passengers traveling in the goods carrying vehicle, the liability to pay the compensation in the present case cannot be fastened on the appellant - Insurance Company. It is settled proposition of law that fare payee passengers travelling in a goods carrying vehicle do not fall in the category of third party and therefore, they cannot be treated as third party. 9. Since the Tribunal in its finding treated the claimants-respondents as third party while awarding the compensation, therefore the same is not sustainable in law and the Insurance Company is not liable to pay the compensation in the present case. 10. On this issue, Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Savitri Devi (supra) held as under:- "8. After having gone through the award of the Claims Tribunal and the judgment and order passed by the leaned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured only as "goods carrying vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. Admittedly, the appellant Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of the Workmen's Compensation Act." 11. In view of the discussion made above, the appeals are allowed to the extent that the liability to pay the compensation cannot be fastened on the appellant-Insurance Company and thus, the appellant - Insurance Company is absolved from paying the compensation in the present case. 12. Mr. Jagdish Vyas, learned counsel appearing for the appellant - Insurance Company submits that the Insurance Company has paid certain amount to the respondent-claimants and in view of the decision of this case, the Insurance Company may be allowed to recover the amount so paid by them from the owner of the vehicle. Ordered accordingly. 13. It is also made clear that the respondents-claimants will be free to recover the amount awarded by the Tribunal from the owner of the vehicle.