National Insurance Company Limited vs Kashmir Kaur and Others

K. Kannan, J.—The appeal is by the Insurance Company denying liability on the ground that the deceased was sitting on the mudguard and no liability could arise by anyone who is travelling in the tractor except for the driver. The issue of liability of an Insurance Company for a person travelling on the mudguard of tractor has been dealt with in great detail with reference to the decisions of the Hon''ble Supreme Court and all High Courts in Oriental Insurance Company Limited v. Gurmel Kaur and Ors. in FAO No. 5063 of 2006, decided on 24.08.2010: The New India Assurance Company Limited v. Surinder Kaur in F.A.O. No. 635 of 2005. decided on 01.09.2010 and United India Insurance Company Limited v. Sunita Devi and Ors. in FAO No. 2656 of 2007. decided on 12.08.2010. The liability cast on the Insurance Company was, therefore, not justified and the award against the Insurance Company is set aside. The right of enforcement of the claim for the claimants shall be only against the owner of the vehicle which is involved in the accident.

The counsel is unable to say whether the claimants have secured the enforcement of the award against the Insurance Company. If the Insurance Company has already paid the money or any portion of the amount, the right of recovery shall be available for the insurer only against the insured and not against the claimants.

The appeal is allowed but subject to the observations made above. The amount of Rs. 25,000/ - which has been deposited by the Insurance Company shall be permitted to be withdrawn by the Insurance Company.