Oriental Insurance Co. Ltd. vs Surinder Kumar and Others

Sunil Hali, J.—Feeling aggrieved by the award passed by the Presiding Officer, Motor Accidents Claims Tribunal, Kathua dated

24.01.2007 to the tune of Rs. 2,60,000/- in favour of respondent No. 1, the present appeal has been filed by the appellant.

Respondent No. 1 while traveling in a Maruti Van bearing registration No. JKS-6870 met with an accident near Mazaar Baba Raday Shah

Kora Kapoora Road falling under the jurisdiction of Police Station, Fareedkote (Punjab). The said Maruti Van is stated to have dashed against a

Jeep bearing registration No. HRL-5054 coming from the opposite direction. On account of said accident, respondent No. 1 suffered serious

injuries, as a result of which he was hospitalized. He suffered fractures on his right leg at two places rendering him permanently disabled. A claim

petition came to be filed by him before the Motor Accidents Claims Tribunal, Kathua.

FIR No. 26 dated 22.2.1999 was registered in Police Station, Fareedkote. The said FIR has been filed by one Chander Shekher.

The Tribunal after hearing the parties passed the aforementioned award. It is this order of the Tribunal, which is subject matter of challenge

before this Court.

I have heard Learned Counsel for the parties and perused the record. The appellant-company has questioned the award on the following two

counts:

That FIR was registered against the driver who was driving the Jeep No. HRL 5054 and not against the driver of the Maruti Van.

That the award has been passed in violation of the terms and conditions of the insurance policy. It was specifically stated that the policy did not

cover the risk of the passengers carried by it.

On the other hand, the respondents have contended that there is no evidence on the basis of which it can be said that the accident took place

due to rash and negligent driving by the Driver of the Jeep No. HRL 5054. The respondents have not produced any witness to support this

contention. They failed to prove the conditions of the policy. Only photo-stat copy of the policy has been produced, which has not been proved.

It is not in dispute that vehicle in question was insured with the appellant-company. The respondents have placed copy of the policy. While

going through the contents of the policy, it stipulates that the vehicle can be used for social, domestic and pleasure purpose and for insured's own

business. The policy does not cover use for hire or reward or for organized racing. This policy has not been proved by the respondents. As a

matter of fact, the respondents have not examined any witness in support of their case.

Issue Nos. 1 & 2 have been proved. The issue No. 1 dealt with question of respondent/claimant suffered injuries on account of rash and

negligent driving by the driver of the offending Maruti Van bearing registration No. JKS 6870. In respect of issue No. 3, the respondents have

failed to adduce evidence and have not been able to discharge its onus of proof.

The plea taken by the appellant-company in this appeal is that insurer is not bound to discharge its liability on account of fact that vehicle was

being driven in violation of conditions of insurance policy. It was specifically stated that driver of the vehicle did not possess a valid licence at the

time of accident. The other contention of the appellant is that vehicle was not used for hire, as such, insurance company is not liable to discharge his

liability.

There is nothing on record to show that the vehicle was being used for hire purpose. Going by the terms and conditions of the insurance policy

produced by the appellant-company, it clearly reveals that vehicle can be used for social, domestic and pleasure purpose and for insured's own

business. The appellant has failed to prove that vehicle was being used for hire purpose. The appellant in support of their contentions have relied on

the judgments reported in 2008 (4) Supreme 329 entitled O.I. Co. Ltd. v. Sudhakaran KV and Ors. 2001 ACJ 2059 entitled Dr. T.V. Josh v.

Chacko P.M. Ors. 2002 (2) Supreme 170 Liability of Insurance Co....

The aforementioned judgments cover the cases where private car is used for hire purpose. Any passenger who is traveling in a private vehicle

without taking the policy for covering the risk of passengers, if un-authorisedly carry passengers for hire or reward, the insurance company cannot

be mulcted with the liability. There is no dispute with respect to this preposition of law. The appellant company has not proved this fact that the

vehicle was on hire. Consequently, no liability can be imposed on it. Failure on their part to prove this fact will not exonerate the appellant

company for paying the compensation.

The respondents in support of their contentions have placed reliance on the judgments reported in New India Assurance Co. Vs. Hurmat

Begum and Others, Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, Natarajan Vs. D. Chandrasekaran and Others,

and Shanthabai and others Vs. Shekappa and others,

The principle laid down in the aforementioned judgments is that any person would undoubtedly include an occupant of the car who is

gratuitously traveling in the Car. The judgments further reveal that a passenger traveling in a private jeep and was not traveling on hire, the

insurance company is liable to pay the entire amount. I, therefore, hold that there is no need to interfere with the award passed by the Learned

Tribunal. Accordingly, this appeal is dismissed. The record of the Tribunal be send back.