New India Assurance Co. Ltd. vs Bane Singh and Others

A.M. Sapre, J.—Insurance Company is not satisfied with the impugned award fastening liability on them by the learned Member of Tribunal and hence they are in appeal. The impugned award is dated 6.8.1996 in Claim Case No. 26/1990. Facts in brief are these.

On 14.1.1988 Makhan -- who was the husband of respodnent No. 3 and son of respondent Nos. 1 and 2-met with an accident when he was crushed by one tractor MPU 5391 and succumbed to the injuries. He was sitting on the bonet of tractor which was owned by respondent No. 4 and driven by respondent No. 5. The claimants claimed compensation for the death of Makhan.

The defence of Insurance Company which alone is relevant for the disposal of this appeal was that no liability can be fastened on the Insurance Company because, the tractor in question was insured with them only for a particular purpose and secondly the policy in question (Ex, D1) did not include the risk of unathorised person sitting on the bonet of tractor. According to Insurance Company, at best such person could be termed as gratuitous passenger and hence risk of such person was not covered in the policy in question.

By impugned award, the learned Member of Tribunal decreed the claim of claimant and passed an award jointly and severally against owner/driver as also against Insurance Company. It is this finding making the Insurance Company liable is challenged in appeal.

Heard Mr. Dandavate, learned Counsel for appellant, Mr. Rajpal, learned Counsel for respondents 1 to 3 and Mr. Trivedi, learned Counsel for respondents 4 to 7.

According to learned Counsel for Insurance Company, this case is covered by the decision of Supreme Court reported in Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, ; Mallawwa and Ors. v. Oriental Insurance Co. Ltd. and Ors. According to learned Counsel since the accident in question occurred in 1988 i.e.,prior to amendment in Motor Vehicles Act, it will be covered under the old Act and hence ratio of Mullawwa''s case (supra) will apply. It was pointed out that it is only after the amendment in Act, the Supreme Court has in the case of New India Assurance Company Vs. Shri Satpal Singh and Others, held that even the risk of gratuitous passengers is covered but not in respect of those accidents which occurred prior to amendment.

In reply, learned Counsel for respondents (claimants) supported the impugned award.

Having heard the learned Counsels for the parties, I am of the view that this case is covered by the decision of Supreme Court in the case of Mallawwa referred supra. Admittedly, the accident in question occurred in 1988 when old Act was in force and hence it did not cover the risk of such person as in this case. Makhan was travelling in the offending vehicle as unauthorised person. He was not travelling as labourer whose risk was covered in Ex. D1 (Policy). He had nothing to do with the tractor in question nor was he in the employment of owner nor was he in any way concerned with the owner. In my view, therefore, the ratio of Mallawwa''s case (supra) will apply and hence no liability on the Insurance Company for the death of Makhan on the strength of policy (Ex. D1) could be passed.

Accordingly, the appeal is allowed. Impugned award is set aside to the extent that Insurance Company is held not liable.

No cost.