Jharkhand High Court
Oriental Insurance Company ... vs Dulari Devi on 4 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 319 of 2007
Oriental Insurance Company Limited having its office at Dharmshala
Road, Town Daltonganj, P.O. & P.S. Daltonganj, District- Palamau
through its Deputy Manager In-Charge Legal Cell, Oriental Insurance
Compnay Limited, Divisional Office-I, Ved Naragyan Bhawan, Kutchey
Road, P.O.- GPO, P.S.- Kotwali, District- Ranchi
.... .... Appellant
Versus
1. Dulari Devi
2. Shri Bhagwan Mehta
3. Shankar Prasad Kushwaha
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Alok Lal, Advocate
For the Respondents : M/s Manoj Kumar Singh, B.P. Jaiswal
& Shashank Shekhar Prasad, Advocates
C.A.V. ON 08.12.2021 PRONOUNCED ON 04 / 01 / 2022
1. The Insurance Company has preferred the instant appeal against
the judgment and award of compensation under Section 166 of the MV
Act in M.V. Case No. 36/2003 by 1st Additional District Judge-cum- Mo-
tor Vehicle Accident Claim Tribunal, Palamau.
2. The judgment has been assailed mainly on the ground that it is
a case of breach of the terms and conditions of insurance policy by the
owner of the offending vehicle, as passengers were allowed to travel on a
goods vehicle and therefore the Insurance Company under Section 149 of
sub section 2 (a) was not liable to pay the compensation amount.
3. As per the case of the claimant the deceased Dudun Ram aged
about 18 years was labourer working on the tractor on a monthly income
Rs.2000/-. On 22.03.2002 while the deceased was going on the tractor,
the tractor overturned due to rash and negligent driving of the driver re-
sulting in his death.
4. The learned Tribunal recorded the finding of fact that the de-
ceased was sitting on the tractor on the material time of the accident and
not on the trailer attached to the tractor.
5. It is not in dispute that the tractor was under insurance cover of
Oriental Insurance Company Limited which has been impleaded as O.P.
No. 3 in the claim case and the liability of payment of compensation has
been fastened on the Insurance Company. The short question for consid-
eration is whether the Insurance Company is liable to pay the compensa-
tion in the facts and circumstances of the present case?
6. It has been held by Hon'ble Supreme Court in National Insur-
ance Company Limited Vs. Baljeet Kaur (2004) (2) SCC 1 that the In-
surance Company cannot be made liable to pay the compensation for gra-
tuitous passenger who were neither contemplated at the time when the
contract of insurance was made nor any premium was paid. The sum and
substance of the ration decided in Baljeet Kaur case (supra) is that in
case of gratuitous passenger the Insurance Company is not liable to in-
demnify the owner of the vehicle for paying compensation on ground of
breach of term of insurance policy, but it has a liability to pay compensa-
tion to the third party and recover the same from the owner of the vehicle.
7. Here in the present case there is a definite finding of fact rec-
orded by the learned Tribunal that the deceased was travelling on the mud
guard of the tractor at the relevant time of the accident. Permitting a per-
son to travel on the tractor when it could accommodate only one person
namely driver by the owner of the vehicle, is a breach of terms and condi-
tions of the policy and therefore in view of the ratio of the Hon'ble Apex
Court Shibaraj Vs. Rajendra and another (2018) 10 SCC 432 the In-
surance Company was not liable to pay the compensation amount. How-
ever, the Insurance Company shall pay the compensation amount to the
claimants with liberty to recover the same from the owner of the tractor.
8. In the result, the appeal is allowed as at above. The Insurance
Company is permitted to withdraw the statutory amount.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 4th January, 2022
AFR / AKT
