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THE ORIENTAL INSURANCE COMPANY LTD. versus SMT. NASREEN & OTHERS

High Court of Judicature at Allahabad

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The Oriental Insurance Company Ltd. v. Smt. Nasreen & Others - FIRST APPEAL FROM ORDER No. - 2813 of 2007 [2007] RD-AH 16576 (10 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 10

FAFO No. 2813 of 2007.

The Oriental Insurance Company Ltd.

Bareilly ........................................... Appellant/Defendant

vs.

Smt. Nasreen & two others.............Respondents/Claimants.

Mohd. Imtiyaz Ali.............................Respondent/Defendant.

*****************

Hon. Yatindra Singh, J.

Hon. Vijay Kumar Verma, J.

1. Challenge in this appeal is to the judgment and award dated 16.07.2007 passed by M.A.C.T./Additional District Judge, Court No. 6 Bareilly, in MACP No. 98 of 2005 (Smt. Nasreen and others vs. Oriental Insurance Co. Ltd. & another), whereby award for a sum of Rs. 2,95,000/- has been granted for the death of Ghasita and Insurance Company (Appellant) has been directed to pay the entire amount to the claimant and thereafter, recover the same from owner of the vehicle.

2. Claim petition under Section 163A of Motor Vehicles Act 1988 (for short the Act) was filed by the wife, son and mother of Ghasita (the deceased), who died in the accident. In the petition it was alleged that deceased was travelling in Truck No. U.P.34-C/8009 (hereinafter to be referred as offending vehicle) with his cattle from Revsa toward Rampur. The truck collided with a tree on 12.12.2004 at about 4.00 a.m. due to rash and negligent driving by its driver. The deceased sustained serious injuries in the accident and died instantaneously. Many cattle, which were loaded in the truck, were also died.

3. The appellant-defendant filed written statement and denied the allegations of petition. It was further averred that the driver of offending vehicle was not having valid and effective driving licence at the time of incident and since the deceased was a gratuitous passenger in the vehicle, the Insurance Company is not liable to pay any compensation.

4. The truck owner Mohd. Imtiyaz also filed written statement in which happening of the accident on 12.12.2004 at about 4.00 a.m. was admitted, but it was averred that the driver of truck was not negligent and accident occurred in saving Neelgai , which all of sudden came in front of the vehicle. It was further averred that offending vehicle was insured with Oriental Insurance Company and driver was having valid licence at the time of accident.

5. In order to prove their case, the claimants examined Smt. Nasreen (wife of deceased) as P.W.1 and Samshad Ahmad (Eye witness of the accident) as P.W.2. The owner of the offending vehicle and Insurance Company did not examine any witness. The Tribunal below after taking entire evidence into consideration, awarded compensation as mentioned in para 1 directing the appellant/defendant to pay the amount of award to the claimants and to recover the same from owner of offending vehicle. Hence this appeal.

6. We have heard Sri S. C. Srivastava, learned counsel for the appellant on admission of appeal and perused the impugned judgment carefully.

7. There is no permission under section 170 of the Act and as such the appellant-defendant has right to challenge the amount of compensation awarded by the Tribunal below.

8. The main submission made by learned counsel for the appellant is that the insurance company is not liable to pay any compensation in this case, because according to the finding recorded by learned Tribunal below, the deceased was travelling as gratuitous passenger in the offending vehicle at the time of accident and driver was not having effective driving licence on that date. The contention of Sri Srivastava was that issuing direction by the Tribunal below to the appellant to pay the amount of award to the claimants and then to recover the same from the owner of the offending vehicle is not in accordance with law. For this contention, our attention was drawn towards the case of National Insurance Company Ltd. vs. Bommithi Subbhayamma and others 2005 ACJ 721.

9. We agree with the submission of the learned counsel for the appellant that the insurance company is not liable to indemnify the owner of the offending vehicle in instant case, because as per findings recorded by learned Tribunal below in the impugned judgment, the deceased was gratuitous passenger in the offending vehicle, which is goods carriage. It is now settled law that the Insurance Company is not liable to pay any compensation for the death or injury to gratuitous passenger carried in goods carriage. Reference in this regard may be made to the case of New India Insurance Company Ltd. vs. Vedwati & others 2007 (3) ALJ 193 also.

10. Now the question arises as to whether this Court will be justified to make interference in the impugned judgement. Motor Vehicles Act is a social welfare legislation, the object of which is to give relief to the victims of accident. In instant case, the offending vehicle was insured with the appellant on the date of accident. The Tribunal below has given right to the appellant to recover the amount of award from the owner of the offending vehicle after making payment to the claimants. In our view this order of the Tribunal below is not unjustified. The Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Swaroopa & others AIR 2006 SC 2472 has held that the Insurance Company is not liable to pay compensation for the death of gratuitous passenger travelling in goods vehicle and if the compensation has been paid by company, the same may be recovered from the owner of the vehicle. Therefore, interference in the impugned judgment by this Court is not warranted, because after making payment of the amount of award to the claimants as directed by the Tribunal below, the appellant can recover the entire amount from the owner of the

offending vehicle under the provisions of Section 174 of the Act.

11. Consequently, the appeal is hereby dismissed at the admission stage.

Dated: 10.10.2007

v.k. updh.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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