New India Assurance Co. Ltd. vs Heeralal and Others

Goutam Bhaduri, J.

This is an appeal by the Insurance Company, against the award dated 25th January, 2003, passed in Claim Case No. 59/2002 by Fourth Additional Motor Accident Claims Tribunal (Fast Track Court), Raigarh (C.G.) whereby an award of Rs. 1,51,000 was passed as against the claim of Rs. 6,92,000. Brief facts of the case are that a claim petition was filed by the husband and the children of the deceased Rambai on the pleadings that on 30th June, 1999 a truck bearing No. M.P.-26D-3954 met with an accident whereby Rambai who was travelling in the said truck died while Mangli Bai sustained severe injuries. This fact is not in dispute that the truck bearing No. M.P.-26D-3954 was covered under the insurance issued by the New India Assurance Company Limited on the date of accident.

During the course of trial, the owner of the truck Seetaram Agrawal remained ex parte while the driver of the offending vehicle did not file his written statement. The reply was filed by the Insurance Company while one of the person Ashok Kumar Agrawal who has also arrayed as non-applicants has filed his written statement and denied the claim of the claimants.

Learned Tribunal as against the claim made for Rs. 6,92,000 by the claimants, i.e. legal heirs of the deceased Rambai, has passed an award of Rs. 1,51,000. By such award, the learned Tribunal has held the Insurance Company liable along with other non-applicants and directed to pay the amount of award and the liability has been fastened over the Insurance Company jointly.

Learned Counsel for the appellant Insurance Company would submit that Rambai the deceased was travelling as a gratuitous passenger and therefore, the liability which has fastened over the Insurance Company is completely illegal. He would further submit that the deceased was travelling in the goods carriage vehicle as a gratuitous passenger and therefore, there was a clear breach of policy and the policy did not cover such passenger, who were travelling in the goods vehicle, therefore, it was submitted that, the Insurance Company cannot be held liable for the same.

I have heard the learned Counsel for the appellant at length and perused the record.

In order to ascertain the liability of the Insurance Company, the documents and the evidence of Insurance Company was perused. The Insurance Company on their behalf has examined their officer Shri A. Toppo as non-applicant witness No. 1. According to the said witness the vehicle was insured by New India Assurance Company for the period of 11th February, 1999 to 10th February, 2000 and it was for the goods vehicle. The copy of the policy was proved as Ex. N.A./1. This witness has also stated that the policy was for goods vehicle wherein the passenger could not have been carried.

Perusal of the policy, which is marked as Ex. NA-1 shows that policy was for goods carriage vehicle. This evidence cannot be side lined. The accident in this case had taken place on 30th June, 1999. Therefore, as per the definition of the goods carriage under Section 2(14) it means motor vehicle constructed or adapted for use solely for the carriage of goods. Section 2(35) of the Motor Vehicles Act described public service vehicles which means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward. Therefore, taking to definition of goods carriage, it leads to expression that in the vehicle wherein the accident occurred, the passenger could not have been carried. Therefore, after examination or the evidence which is available on the record I am of the opinion that the accident happened in a vehicle which was meant for goods carriage and passengers were not entitled for travelling in it. Accordingly it is held that the fastening of liability over the Insurance Company by the Tribunal was wrong as there was a clear breach of policy.

Furthermore taking into fact that with respect to satisfy the liability of the award by the Insurance Company, considering the beneficial object of the Motor Vehicles Act as the claimants cannot be compelled to struggle for recovery of the amount, in view of the fact that the accident had occurred in the year 1999 and almost 15 years have passed and further as per principle laid down in case of National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, , it is directed that the Insurance Company shall first satisfy the liability and thereafter shall be entitled to recover- the same from the owner and driver of the vehicle namely Sitaram Agrawal and Firturam Patel. Further it is directed that the Insurance Company need not to file a separate proceeding and the same shall be recovered in the execution proceeding itself. The appeal is, therefore, partly allowed. No order as to costs.