United India Insurance Co. Ltd. vs Susan and Others

P.A. Mohammed, J.—United India Insurance Co. Ltd., the respondent No. 3 in O.P. (M.v.) No. 335 of 1995 on the file of the M.A.C. Tribunal, Muvattupuzha, is the appellant before us. This appeal is directed against the award dated 23.4.1996 passed by the Tribunal in the above application fixing the compensation of Rs. 1,04,000 with 12 per cent interest and directing the appellant company, the insurer of the vehicle involved in the accident, to indemnify the owner of the vehicle in respect of the compensation awarded.

In the motor accident which occurred on 13.5.1995 one Paulose died on account of the injuries sustained by him in the accident. The legal heirs of the deceased filed the above application claiming a total compensation of Rs. 4,64,800 under different heads but the claim was restricted to Rs. 2,00,000. According to them the deceased while walking along the side of the road, the offending vehicle, a mini lorry bearing registration No. KL-7-4984 driven by the respondent No. 5 herein came in a rash and negligent manner knocked him down and thus sustained severe injuries in consequence of which he died next day. However, the respondent No. 6 herein, the owner of the vehicle filed written statement admitting the accident, but denying the negligence on the part of the driver. According to him the vehicle was insured with the appellant company and the driver was having a valid driving licence at the time of the accident. The insurer company filed a written statement admitting the insurance policy but denying the knowledge of the accident. Subsequently, it filed an additional written statement contending that the deceased was a gratuitous passenger travelling on the platform of the mini lorry. It further contended that it was not liable to cover the risk of gratuitous passenger carried in the vehicle.

The Tribunal after the enquiry held that the driver of the mini lorry was responsible for the accident and it occurred while deceased was walking along the side of the road. It further found that respondent Nos. 1 to 3 in the claim petition were jointly and severally liable to pay the compensation and the insurer of the vehicle was liable to indemnify the owner in respect of the compensation awarded. Hence this appeal.

The main contention urged in this appeal is that the deceased was not a pedestrian but a gratuitous passenger travelling on the platform of the mini lorry and that the insurance policy did not cover the risk of such passengers. Inasmuch as the accident having been occurred on 13.5.1995, it is apposite that the provisions of the Motor Vehicles Act, 1988 would apply. Assuming that the deceased was a gratuitous passenger and thereby accepting the contention of the appellant, we have to examine whether the insurer company is liable to indemnify the owner of the vehicle for the compensation payable for the death of such passenger under the provisions of the new Act. Exh. B5 is the copy of the insurance policy in respect of the present vehicle which is registered as a goods vehicle. It is an admitted case that the said vehicle is authorised to carry six persons and the policy marked is a comprehensive policy.

The question posed before us is no longer res Integra. In a very recent decision of the Supreme Court in New India Assurance Company Vs. Shri Satpal Singh and Others, the court held thus:

The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passenger in a vehicle, no matter that the vehicle is of any type or class.

(Emphasis supplied)

The facts involved in the above case can be summarised thus: A ten years old girl met with her death in a truck accident on 11.3.1990 while she was travelling in the truck. The Motor Accidents Claims Tribunal passed an award granting Rs. 25,000 to the claimants. The owner of the truck was found liable to pay the said compensation and the insurance company had been directed to indemnify the owner for the said amount of compensation. Insurance company in its appeal contended before the High Court that the deceased girl was a gratuitous passenger in the truck and hence no liability could be fastened with the insurer. The said contention was rejected by the Division Bench of the High Court. Then the insurance company filed further appeal before the Apex Court on obtaining leave. The Apex Court dismissed the appeal upholding the view adopted by the Division Bench of the High Court.

The Supreme Court after analysing the decisions in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 and Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, further held in New India Assurance Company Vs. Shri Satpal Singh and Others,

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.

Therefore, we do not think it essential to examine the various decisions cited by the counsel for the appellant coming under the old Act.

In view of what is said above, the impugned award passed by the Tribunal is sustained. The appeal is accordingly dismissed.