Excelsior Correspondent
SRINAGAR, Feb 9: High Court has observed that an insurance company is not liable for compensation if a gratuitous passenger travels by offending vehicle.
The court was considering an appeal challenging the award passed by the Motor Accident Claims Tribunal whereby an amount of Rs. 12,65,000 inclusive of the interim already granted, on “No Fault Basis Liability” was awarded in favour of the Claimants/ Respondents along with interest @ 6 percent per annum from the date of filing of the Claim Petition till final realization of the awarded amount.
Justice M.A. Chowdhary observed, “…needless to say here that it is settled position of law that in a case where it is proved that a person travelling by the offending vehicle as a gratuitous passenger, not covered under the policy of insurance, in such eventuality, the insurance company is not liable to pay compensation to the claimants concerned, even under the statutory provision of pay and recover.”
The husband of the claimant and her father were travelling in a truck being driven by its driver rashly and negligently. After reaching a certain point, the driver lost control of the vehicle, as a result whereof, the vehicle skidded off the road and fell down about 200 feet deep gorge, thereby completely damaging the vehicle and inflicting serious injuries upon her husband who was taken to District Hospital, wherefrom he was referred to SKIMS, Srinagar, where he died and an FIR came to be registered with regard to the incident.
The wife of the victim approached the Tribunal with a Claim Petition seeking compensation to the tune of Rs. 45.00 lakhs for the death of the deceased. Pursuant to notice having been issued by the Tribunal, the insurance-company/ appellant appeared and filed its objections to the Claim Petition, while as driver and owner of the offending vehicle, did not file any objections and were, accordingly, proceeded ex-parte before the Tribunal.
In its objections before the Tribunal, the appellant stated that the Claim Petition was not maintainable against the company, in as much as, the deceased was not a labourer of the truck employed by the insured and was not covered under the policy of insurance. Later, the impugned order came to pass.
The award stands challenged on various grounds, including that the deceased was travelling by the offending insured vehicle gratuitously, as such, the claimants, though entitled to receive compensation, but the insurer is not liable to indemnify the insured of his liability.
The court was of the view that the plea raised by the appellant-insurance company as to whether the deceased was, in fact, working with a Construction Company-HCC on a monthly remuneration should have been inquired into by the Tribunal and an official from the Construction Company should have been examined with regard to that fact or, in the alternative, the driver or owner of the offending vehicle should have been examined by the Tribunal, so as to state whether the deceased was working with the truck owned by the registered owner and driven by the Respondent-driver, as on the date of accident.
“This, given the facts and circumstances of the case before the Tribunal, was required, so as to rule out the fact that the deceased was not a gratuitous passenger. Needless to say here that it is settled position of law that in a case where it is proved that a person travelling by the offending vehicle as a gratuitous passenger, not covered under the policy of insurance, in such eventuality, the insurance company is not liable to pay compensation to the claimants concerned, even under the statutory provision of pay and recover. That being so, this Court is of the considered opinion that the Tribunal has wrongly decided the issue, while passing the impugned Award,” the Court observed. “The appeal was accordingly allowed.”
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