Ramakant and Another vs Guru Patel and Another

Anil Sharma, J.—Arguments heard finally. This appeal has been filed u/s 173 of the Motor Vehicles Act against the award dated 28.2.2003 passed by 3rd Additional Motor Accident Claims Tribunal (Fast Track Court) Betul, District Betul in M.A. Claim Case No. 15/02, whereby appellants, owner and driver, respectively, have been held liable for payment of compensation amount of Rs. 54,000/- with interest to the respondent no. 1/claimant.

The impugned award has been passed for the injuries sustained by the claimant/respondent no. 1 Guru Patel when he was traveling in the jeep driven by the appellant no. 2 and owned by the appellant no. 1. The learned Tribunal has passed the award against the appellants on the ground that the vehicle was being used for carrying passengers on payment of fare in breach of terms of the insurance policy.

Only question in this appeal is that whether the learned Tribunal is justified in passing the award against the appellants by holding that the vehicle was being used in breach of the terms of the insurance policy on carrying passengers on payment of fare or not.

Learned counsel for the appellants has drawn attention towards the evidence and submitted that there is no evidence on record that the persons traveling in the vehicle had paid any fare but the learned Tribunal has considered the fact that the claimant Guru Patel in his evidence has stated that when the vehicle was stopped by the claimant for traveling there were four persons sitting in rear seat of the vehicle and three persons were sitting in front seat of the vehicle along the driver. He has further stated that from his village Dunav to Multai, rate of fare is Rs. 15/- and his statement has remained unrebutted.

He has further stated in his cross-examination that he knows driver Devru @ Devrao. He has further stated that the jeep was being used for carrying passengers and from Dunav he alone used to travel in the said jeep. He has also stated that Rs. 15/- was taken by way of fare from his village to Multai. Usually, in such vehicles passengers are allowed after taking payment of fare. The fare may be collected by the driver on reaching destination or the passengers gets down. Therefore, there was ample evidence before the tribunal to hold that vehicle was used for carrying passengers on payment of fare. Thus, there was ample evidence before the Tribunal to hold that the vehicle was regularly used for carrying the passengers on taking fare.

Learned counsel for the appellants has cited a judgment of Division Bench of this Court passed in the matter of Manibai and others Vs. Mohd. Ismile and others, in which it has been held that where there was no contract policy with gratuitous passenger, Insurance company is not liable to indemnify the insured with respect of the liability for the death of gratuitous passenger arising out of the accident.

Learned counsel for the appellants has also cited a judgment of Hon''ble Apex Court passed in the matter of National Insurance Co. Ltd. Vs. Prema Devi and Others, in which it has been held that gratuitous passenger can recover the amount awarded from the owners of the offending vehicles.

Learned counsel for the appellants has also cited a judgment of Division Bench of this court passed in the matter of National Insurance Co. Ltd. Vs. Brijlata and Others, in which it has been held that u/s 147(1) of the Motor Vehicles Act, 1988 when it is not proved that vehicle was used for carrying passengers for hire or reward. Insurance company failed to prove that jeep was being used as a commercial vehicle. Insurance company is liable for compensation."

All these above three judgments cited by learned counsel for the appellants are against the appellants and do not help in this case.

In the present case, vehicle of the appellants was not insured as commercial and vehicle was being used for carrying passengers by taking fare from them and the evidence adduced by the Insurance Company is sufficient to hold that vehicle was used in breach of terms of the insurance policy for carrying passengers on hire. Therefore, the learned Tribunal is justified in passing the impugned award against the appellants. Therefore, appeal filed by the appellants is hereby dismissed. No order as to costs.