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Judgment
The appellant-insurance company, through the medium of this appeal, has assailed the award dated 19.11.2018 passed by the learned MACT, Srinagar (for short “the Tribunal”), whereby the claim petition preferred by the claimants, i.e. respondent Nos.1 to 4 was allowed and the appellant-insurance company was directed to pay an amount of Rs. 9,19,000/- along with interest at the rate of 6.5% per annum from the date of institution of the claim petition till its realization to respondent Nos. 1 to 4.
The appellant-insurance company has assailed the award, primarily, on the ground that the deceased was travelling as a passenger in the offending vehicle when she got killed and there was no insurance cover against such unauthorized occupants, therefore, the appellant-insurance company was not liable to pay any compensation on account of her death.
Heard and perused the record.
The record depicts that respondent Nos.1 to 4 filed a claim petition on account of death of Mst. Tahira, who died in a vehicular accident on 18.06.2008, while she was travelling from Baramulla to Hajibal in a Maruti car bearing registration No. JK01B-2225. The appellant-insurance company filed its objections stating therein that the deceased was travelling in the vehicle unauthorizedly, as the owner of the offending vehicle had not taken any coverage in the policy for covering the risk of passenger/occupants and it was also submitted that the driver of the offending vehicle was not holding a valid and effective driving license at the relevant time. Respondent Nos.5 and 6 did not choose to contest the claim petition, as such, they were set ex-parte.
On the basis of the pleadings of the parties, the following issues were framed by the Tribunal:
I. Whether on 18.06.2008 the deceased while traveling in a Maruti Car bearing regd. No. JK01B/2225 from Baramulla to Hajibal, the said vehicle was driven by respondent No. 3 in fast speed, rashly and negligently and the driver of the O/V lost control over his vehicle and turned turtle resulting in death of deceased namely Mst. Tahira? OPP
II. Whether the owner/respondent No. 2 has permitted the driver (respondent No. 3) of the offending vehicle to ply the said vehicle without valid, effective D/L and other vehicular documents and has committed the breach of insurance contract, absolved respondent No. 1 insurance company from it liability on account of petitioners claim? (OPR-1)
III. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion? OPP
The claimants examined respondent No.1 and one Syed Jaleel Ahmad Shah, whereas the appellant-insurance company examined RW Sham Lal Anand, Administrative Officer.
Inasmuch as the appellant-insurance company has confined its challenge strictly to the question of liability, contending that the policy issued to the owner of the offending vehicle did not cover a passenger traveling in the Maruti car, this Court does not deem it necessary to deliberate upon the findings regarding the occurrence or the quantum of compensation awarded by the learned Tribunal.
The perusal of statement of appellant’s witness Sham Lal, reveals that, as per the contract of insurance, the deceased was travelling unauthorizedly in the offending vehicle because the owner of the offending vehicle had not taken any coverage in the insurance policy for covering the risk of passenger/occupants travelling in it, and the owner had only taken third party coverage in the contract of insurance. He further stated that it is evident from the insurance policy that the insurance company has not received any premium for covering the risk of passenger/occupants from the owner, and the owner had availed only third party coverage in the insurance policy. It is worthwhile to observe that the said witness was not cross-examined by the claimants/respondent Nos.1 to 4.
Thus, it becomes evident that the insurance policy purchased by the owner of the offending vehicle did not cover the risk of occupants/passengers of the maruti car i.e. the offending vehicle. The learned Tribunal after taking note of the fact that the premium of Rs.25/- was received under the sub-head 'IMT 29’ Legal liability of Employees of insured, in fact, pertains to occupants of the vehicle, and has observed that it is difficult to believe that it confined to employees of the insured. The Tribunal further observed that undisputedly a private car is used for private purposes, unlike commercial vehicle, and in case of commercial vehicle, employees are insured by its registered owner. Thereafter, the Tribunal proceeded to observe that the premium of Rs.25/- has been received by the appellant-insurance company for occupants of the car other than the owner/driver.
It needs to be noted that the respondent No.5 i.e. owner of the offending vehicle was proceeded ex-parte before the learned Tribunal and in absence of any objection by the respondent No.5 or any plea raised by anyone with regard to premium of Rs.25/- under the sub-head ‘IMT 29’, the learned Tribunal proceeded to observe that the premium has been received by the appellant-insurance company for occupants of the car other than the owner/driver of the offending vehicle, that too in absence of any evidence to that effect. In the opinion of this Court, the learned Tribunal was not right in its approach in returning the said finding.
The Hon’ble Supreme Court of India in the case of Anu Bhanvara v. IFFCO Tokio General Insurance Co. Ltd., (2020) 20 SCC 632 has applied the principle of ‘pay and recover’, in the case of gratuitous passenger.
In view of the above, this appeal is partly allowed and the impugned award is modified to the extent of granting liberty to the appellant-insurance company to recover the award amount from the owner of the offending vehicle. The awarded amount, if deposited in the Registry of this Court and not released already, be released in favour of the claimants as per the shares mentioned in the impugned award, after proper verification and identification.