National Insurance Company vs Samima Begum And Others

Sanjeev Kumar, J

National Insurance Company (hereinafter referred to as the „Company‟) is in appeal against the award of Motor Accident Claims Tribunal, Kishtwar („Tribunal‟ for short) dated 20.12.2004 passed in claim petition titled "Mst. Samima Begum and others vs. National Insurance Company and others.

The impugned award has been assailed by the appellant-Company only on the ground that the deceased Sher Zaman, who died in a motor vehicular accident, was travelling in the offending vehicle as a gratuitous passenger and, therefore, the Tribunal should have followed the law laid down by the Hon‟ble Supreme Court in the case of Manuara Khatun and others vs Rajesh Kumar Singh, AIR 2017 SC 1204 and applied the principle of "pay and recovery".

Mr. Gupta, learned counsel, appearing for the appellant-Company states that there is ample evidence on record to show that the offending vehicle was a goods vehicle i.e Truck carrying cement in which the deceased was travelling as a gratuitous passenger. He, therefore, submits that since the offending vehicle was being driven in violation of the terms and conditions of the Insurance policy, the appellant-Company could not have been held liable to indemnify the insured. Learned counsel, however, fairly submits that in view of the law laid down in the case of Manuara Khatun and others, what was required to be done by the Tribunal was to apply the principle of "pay and recover", but the Tribunal fastened the liability to satisfy the award solely on the appellant-Company without even reserving any right to recover the same from the owner/insured.

Having heard learned counsel for the parties and perused the record, I am of the view that the plea of a gratuitous passenger raised by the appellant-Company for the first time in this appeal cannot be entertained, in that, such plea is essentially a factual plea which is not only required to be specifically pleaded, but proved before the Tribunal.

From a bare perusal of the impugned award, it would clearly transpire that no such objection was ever taken by the appellant-Company before the Tribunal, nor the Tribunal struck any issue in this regard. In the absence of specific pleadings and the issue raised, the parties cannot be expected to lead their evidence on a question of fact.

True it is, the deceased was travelling in a Truck which was carrying cement. This is what has come in the evidence of the respondents-claimants. However, from the evidence, it is not clear, as to whether the deceased was travelling in the Truck in his capacity as owner or an agent of the owner of the cement being carried in the offending vehicle of otherwise. Neither from the pleadings of the parties, nor from the evidence led, it can be said with certainty that the deceased was travelling as a gratuitous passenger in the offending vehicle and, therefore, the principle of "pay and recover" was applicable in the instant case.

Learned counsel for the appellant, however, has not disputed the quantum of compensation and has not raised any other objection to the sustainability of the impugned award.

For the foregoing reasons, I find no reason to interfere with the impugned award. Accordingly, the appeal is dismissed. Let the amount of compensation, if deposited in the Registry of this Court, be released in favour of the rightful claimants strictly in terms of the impugned award.