New India Assurance Co. vs Kokilabai and Others

Deepak Verma, J.—This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter for brevity the "Act") has been preferred by the Insurance Company against the Award dated 7.5.1993, passed in Claim Case No. 10 of 1990 by IInd Addl. Motor Accident Claims Tribunal, Khargone.

Facts material for deciding the said appeal in short are mentioned herein below:

Claimants/respondent Nos. 1 to 3 herein, filed a claim petition before the Claims Tribunal on account of the death of one Prakash Patil who was said to have died in a road accident. He was travelling in a Matador bus bearing registration No. CII 2869. The accident had taken place on 27.6.1990. It has been mentioned in the claim petition that he was aged 26 years on the date of his death and was earning Rs. 50/- per day as Band-Master. It has further been mentioned that as and when he was not engaged in the Band Party, he was also doing other job of manufacturing Tin-Trunks. 3. Respondent Nos. 4 and 6 did not file any written statement. Appellant and respondent No. 5 have filed their written statements denying the claim of the respondents / claimants.

The main thrust of objection raised by appellant/Insurance Company was that the vehicle in question was not registered as a Taxi and premium was also not paid as such, but, was still being run as a Taxi. It has, therefore, been contended that on account of the fact, that vehicle was being used as a Taxi, no liability could be fastened on the Insurance Company.

Parties led evidence to the issues framed by Tribunal. No appreciation of evidence available on record, the Claims Tribunal held that owner and Insurance Company both would be liable to pay compensation to the claimants amounting Rs. 1,61,200/- plus interest @ 12% per annum from the date of application and the costs. Thus from the impugned Award, it is clear that even Insurance Company has been held liable to pay compensation.

Notice of appeal being issued to respondents. They have preferred to file cross-objection under Order 41 Rule 22 of the Code of Civil Procedure, praying for enhancement of the amount of Award.

We have accordingly heard the learned Counsel for parties and perused the record.

The question, whether the deceased Prakash was a gratuitous passenger and, if so, any liability can be fastened on Insurance Company, has now been set at rest.

By the recent judgment of Supreme Court, reported in the matter of New India Assurance Company Vs. Shri Satpal Singh and Others, , it has been held by the Supreme Court in the aforesaid judgment in para-11 which is reproduced herein under:

The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a-vis gratuitous passengers are of no avail while considering, the liability of the Insurance Company in respect of any accident which occurred or would occur after the new Act came into force. 10. In the case in hand, it is not in dispute that the accident had taken place on 27.6.1990, whereas, the new Act came into force w.e.f. 1.7.1989. Thus, the provisions of the new Act would be applicable to the facts of the said case.

Supreme Court in clear terms, has already held that even gratuitous passengers would be covered, if, the vehicle in question was insured. In this case, it is not in dispute that at the relevant point of time, the said vehicle was insured with the appellant Company.

The aforesaid view of the Supreme Court has also been followed by the Division Bench in the matter of Kunwariya Bai Vs. Mohan Lal and Others, Thus, the point which was sought to be raised by learned Counsel for appellant, no more requires any reconsideration. There was no other point raised before us during course of arguments by learned Counsel for appellant.

We have also heard the learned Counsel for respondents/claimants on the cross-objection.

The Claims Tribunal, after properly appreciating the evidence, has come to the conclusion that they would be entitled for a sum of Rs. 1,61,200/-, which, in our considered view, was just and proper. No grounds have been made out for enhancement of the amount of Award, already passed by the Tribunal.

In the cross-objection also, we find that no elaborate details have been given as to why the claimants would be entitled for more amount than what has been awarded by the Claims Tribunal.

Thus, looking the matter from all angles, we find that there is no merit and substance in this appeal. The cross-objection also meets the same fate. The same is also hereby dismissed.

The amount of Award already deposited by the appellant Company, shall now be paid to the claimants as per the terms and conditions of the Award.

Parties to bear their own costs.