New India Assurance Company vs Nandlal Lalchand Jaiswani and Others

M.N. Gilani, J.—This appeal is directed against judgment and award dated 20-12-2001, passed by the Motor Accident Claims Tribunal, in Claim Petition No. 152 of 1997, whereby claimants were granted compensation of Rs. 3.00 Lakh on account of death of one Adhyan Meshram, caused in a motor vehicular accident occurred on 17-1-1992, involving truck bearing No. MWY-5097. The deceased left behind him widow and two minor children. Admittedly, on 17-1-1992, the deceased boarded ill-fated goods carriage vehicle for reaching to his native village Pendhari, District Bhandara. Because of rash and negligent driving of the truck, it dashed against the tree and in that the deceased sustained fatal injuries. The deceased was a teacher in the Primary School at Patansawangi. On the basis of the evidence placed before it, the learned Tribunal held that the accident occurred due to rash and negligent driving of the truck. On the point of quantum of compensation, the learned Tribunal assumed yearly income of the deceased at Rs. 26,520/- and after deducting 1/3 amount arrived at figure of Rs. 1,59,120/- being an annual loss of dependency. After applying multiplier by 18, awarded compensation of Rs. 3,18,240/- inclusive of no fault liability amount. The defence raised by the New India Assurance Company Limited-insurer of the vehicle, that the deceased was a gratuitous passenger and, therefore, the insurer is not liable to satisfy the award was turned down by the learned Tribunal after relying upon the decision in the case of New India Assurance Company Vs. Shri Satpal Singh and Others, .

Shri A.J. Pophaly, the learned counsel appearing for the appellant, contended that in view of the decision in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, , the liability arising out of an injury or death of a person travelling in a goods carriage vehicle cannot be fastened on the insurer. The liability, if any, arises has to be solely discharged by the owner and driver of the offending vehicle.

None appeared for respondents.

The controversy involved in this appeal is :

Whether the liability arising out of death or injury to a gratuitous passenger travelling in a goods carriage vehicle can be saddled on the insurer?

In the written statement (Exh.11), filed by the New India Assurance Company-original respondent No. 2, it was specifically pleaded that the deceased was occupying the vehicle as an unauthorized passenger and hence, no liability whatsoever can be saddled on the respondents. The learned Tribunal, in para-5 of its judgment and award, discussed this issue and by relying upon the decision in case of New India Assurance Co. vs. Satpal Singh cited supra held that even the liability arising out of the injury or death of an unauthorized passenger travelling in a goods carriage vehicle, is to be borne by the insurer. From the evidence, brought on record, it is not disputed that the deceased who was primary teacher, had gone to village Khapa. While returning, he boarded the truck to reach to his place -- Patansawangi. On way, the truck met with an accident. It is also not disputed that the vehicle was goods carriage vehicle.

In case of New India Assurance Company Limited vs. Asha Rani and others cited supra, the view taken in Satpal Singh''s case was held to be not good law, and it was observed thus :

If the ratio of Satpal Singh case is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy where for even no premium is required to be paid. Besides, in terms of clause (c) of sub-section (2) of section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh ''s case.

It is not the case of the owner of the vehicle - original respondent No. 1, that by paying extra premium, he got his vehicle insured for any passenger travelling in his goods vehicle. The ratio in case of Asharani was followed in Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., . The view has been reiterated in the case of United India Insurance Co. Ltd. Vs. Suresh K.K. and Another, and this holds the field as on today.

For the reasons aforestated, the appeal succeeds. However, as per the settled legal position, the appellant will have to be directed to satisfy the award at the first instance and recover the amount from the owner of the vehicle.

The judgment and award holding the appellant along with the owner of the vehicle responsible jointly and severally to satisfy the award, is set aside. It is declared that it shall be the sole responsibility of the owner of the vehicle -original respondent No. 1 to satisfy the award.

The record shows that the appellant has deposited the amount under award and the same is lying with the Registry of this Court. Part of it has been withdrawn by the claimant. The Registry shall disburse the balance amount with interest accrued thereon in the following manner :

The amount be kept in fixed deposit in the name of Ranjana wd/o Adhyam Meshram - original claimant No. 1 for a period of 3 to 4 years in any Nationalized Bank, preferably convenient to her, with an arrangement that she shall receive quarterly/monthly interests accrued thereon and on maturity she shall be entitled to receive the principal amount without any reference to this Court.

The appellant shall be at liberty to recover the amount from the owner of the vehicle.

There shall be no order as to costs.