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Judgment
The judgment and order dated 27.09.1999 passed by Chairman, Motor Accident Claims Tribunal, Nagpur in Claim Petition No.455 of 1993 is the subjectmatter of this appeal. The appellant is Insurance Company, which was arrayed as respondent No.3 in the Trial Court.
The only ground on which the impugned judgment and order is challenged is that the vehicle in which the deceased was travelling was a goods vehicle, and deceased was proceeding therein as a gratuitous licencee along with 7 to 8 members of the marriage party. Therefore, the liability can no more be fastened on the Insurance Company. It is submitted that a specific plea to that effect was taken by the appellant in its written statement filed before the Trial Court in para 22. In the last para also it was specifically stated that the deceased was a gratuitous passenger and not permitted by law to travel in the goods vehicle. The said act of the deceased was in contravention to the terms and conditions of the policy, and hence, the appellant cannot be held liable to pay any amount of compensation, interest etc.
The submission of the learned counsel for the appellant is that despite specific plea being raised by the appellant in its written statement, the Trial Court has not considered the same; no issue to that effect is framed nor any finding is given about the same. It is submitted that there is an admission given by the witness Rameshwar Lonkar who was travelling in the same matadoor along with the deceased, that matadoor was a goods vehicle. According to the learned counsel for the appellant, the trial court has totally ignored this evidence and the material admission. According to him, therefore, the impugned judgment and order of the Trial Court cannot be called legal and valid and needs to be quashed and set aside.
In the alternate, it is submitted by the learned counsel for the appellant that as the entire amount of compensation is deposited by the appellantInsurance Company in this Court, and the same is also withdrawn by the respondent Nos.1 to 5claimants, the impugned judgment of the Trial Court can be modified to the extent of exempting the appellant from the liability to pay the amount of compensation, and entitling the appellant to recover the said amount from respondent No.7, the owner of the illfated vehicle.
Respondent No.7 has remained absent, though as per the office note, duly served with notice by way of paper publication. As a matter of fact, respondent Nos.1 to 5 the original claimants are also not present before this Court today. The respondent No.6, who was driver of the vehicle is no more, and the appeal is already abated against him.
In my considered opinion also, as rightly submitted by the learned counsel for the appellant, a specific defence was raised by the appellant in its written statement not only in para 9, 22 and last para, but also in para 21 and para 10 specifically contending that deceased was travelling as gratuitous passenger in a goods vehicle, and therefore, as it was against the terms and conditions of the insurance policy, the appellant is not liable to pay any amount of compensation. However, perusal of the judgment of the Tribunal reveal that this defence is not at all considered by the Tribunal. There is not a single whisper in the entire judgment of the Tribunal about this particular defence, far remain, any discussion to that effect in its reasoning part. No issue is also framed by the Trial Court about the liability of the appellantInsurance Company in view of the specific defence raised by it. Thus, entire judgment and order of the Trial Court is conspicuously silent about it. Despite that the Trial Court has fastened the liability on the appellant jointly and severally along with the owner and the driver of the said vehicle. Since therefore, there appears much substance in the submission of the counsel for the appellant, the impugned judgment and order of the Trial Court cannot sustain as it does not consider the specific plea raised by the appellant.
However, the fact remain that as a result of this judgment and order, the appellant has deposited entire amount of compensation in this Court, and the claimants have also withdrawn the said amount. Therefore, though in the normal circumstances, it would have been proper on the part of this Court to remand the matter to the Trial Court for fresh hearing for consideration of the specific plea raised by the appellant in the written statement, this Court finds that it is not necessary, having regard to the fact that the respondent No.7, the owner of the vehicle has also not chosen to appear before the Tribunal or this Court to raise any contention or to deny this fact. It is pertinent to note that there is specific admission given by witness No.2 for the claimant, namely, Rameshwar Lonkar in crossexamination that the vehicle in which the deceased was travelling was a goods vehicle. Claimant has admitted in the evidence that his father was travelling in matadoor along with members of the marriage party. In view of this, clear cut evidence on record, it follows that the act of deceased in travelling in the matador, which was a goods vehicle, as a gratuitous passenger, being against specific terms and conditions of the insurance policy, joint and several liability to pay the amount of compensation to the claimant cannot be fastened on the appellant. However, as the appellant has already deposited the entire amount, the only relief which can be granted to the appellant, now is right to recover the said amount from the respondent No.7, the owner of the goods vehicle.
As a result, the appeal is partly allowed. The impugned judgment and order of the Trial Court is modified to the extent that the liability of the appellant to pay the amount of compensation jointly and severally is set aside, and it is held that the appellant is entitled to recover the said amount of compensation from respondent No.7, the owner of the offending vehicle. The appeal is partly allowed in the above terms, with no order as to costs.