New India Assurance Co. Ltd. vs Patel Ratanben Mavji Velji Rabadia and Others

M.D. Shah, J.—This appeal has been filed by the original opponent No. 2-Insurance Company under Sec. 173 of the Motor Vehicles Act, 1988 being aggrieved and dissatisfied with the judgment and award dated 23-2-2007 passed by the Motor Accidents Claims Tribunal Fast Track Court No. 5, Kachchh at Bhuj in MACP No. 566 of 1996 awarding compensation of Rs. 9,95,000/- to the claimants making the appellant jointly and severally liable. Facts in short are that a claim petition was filed by heirs and legal representatives of deceased Mavji Velji Rabadia aged 32 years claiming compensation for death of the deceased which is caused in an accident which occurred on 7-11-1995 on the road between Jakhau Village and Jakhau Bandh road. It is inter alia contended that the deceased was travelling in truck No. GTY-5061 of the ownership of original opponent No. 1 which was being used for M/s. Shamji Maya and Company in which the deceased was also a partner and when the said truck was taken in reverse, the truck turned turtle and fell into sea water, causing fatal injuries to the deceased. After hearing the learned counsel for the parties and considering the oral as well as documentary evidence on record, the impugned award was passed by the Tribunal.

I have heard learned counsel for the appellant and have also taken into consideration oral as well as documentary evidence on record.

However, learned advocate, Mr. D.K. Puj for the original claimant is not present when matter is called out even in the second round.

The learned advocate for the appellant has submitted that occurrence of accident is not disputed. It is further submitted that the alleged truck No. GTY-5061 is running in the name of Patel Vishram Valji Rabadia, who is brother of the deceased. As per the averments made in the claim petition and deposition of the claimant, said truck in which the deceased was travelling was running in the names of opponent No. 1 and deceased and deceased himself was one of the partners in the said truck and policy does not cover such person who was not travelling with goods and hence, according to him, insurance company is not liable to pay any compensation. He has relied on the decisions of Hon�ble Apex Court in the case of Dhanraj Vs. New India Assurance Co. Ltd. and Another, more particularly paragraph No. 10 which reads as under:

In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4,989/- paid under the heading "Own damage" is for covering liability towards personal injury. Under the heading "Own damage", the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance.

He has also relied on the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others,

This Court has gone through the impugned judgment and award more particularly the evidence of Vipulbhai, son of the deceased, Ex. 50 as well as through copy of the policy. It is specifically stated on oath by son of the deceased that truck was running in the names of partnership firm with opponent No. 1-Patel Vishram Valji Rabadia, who was brother of the deceased and deceased was also partner of the said firm. Even otherwise, deceased was not travelling with goods and, therefore, he is deemed to be a gratuitous passenger in the vehicle and, therefore also, insurance company is not liable to pay any compensation. It has been held at head note (A) in Asha Rani (supra) as under:

(a) Motor Vehicles Act (59 of 1988). S. 147 (prior to amendment of 1994)--Liability of insurer-Owner of goods or his authorised representative carried in goods vehicle-Died or suffered any bodily injury in accident-Insurer would not be liable to pay compensation.

New India Assurance Company Vs. Shri Satpal Singh and Others, Overruled.

However, the Tribunal has committed error in holding that truck was goods vehicle as nothing has come on record to show that the deceased was travelling with goods. Therefore, as per Asha Rani (supra), even assuming that the deceased was not partner of the firm, then also, he is a gratuitous passenger and, therefore, in light of judgment of Asha Rani(Supra), insurance company is not liable to pay any compensation.

In view of the above, this appeal is partly allowed. The claim petition is dismissed qua the appellant insurance company i.e. original opponent No. 2 and judgment and award remains as it is qua original opponent No. 1. It is clarified that the amount, if any, which is paid to the claimants in pursuance of the order passed by this court or the Tribunal will not be recovered by the insurance company from the claimants and the insurance company is at liberty to recover from the owner and driver of the vehicle. The amount lying deposited by the insurance company will be refunded to the present appellant-insurance company by the Tribunal. Office is directed to send the R & P to the learned Tribunal forthwith.