Rajasthan High Court - Jodhpur

New India Insurance Company ... vs Gheesa Ram And Anr on 19 August, 2021

Bench: Vinit Kumar Mathur

(1 of 5) [CMA-133/2000]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Misc. Appeal No. 133/2000

New India Assurance Company Limited through its legally constituted authority, Divisional Ofice, Division-I, Abhay Chamber, Jalori gate, Jodhpur

----Appellant Versus

1. Gheesa Ram S/o Sh. Raja Ram resident of Raika-ki-Dhani, Tehsil Raipur, Distt. Pali.

2. Shri Cement Limited, Bangar Nagar, Beawar, through General Manager.

----Respondent Connected With S.B. Civil Misc. Appeal No. 42/2000 New India Assurance Company Limited through its legally constituted authority, Divisional Ofice, Division-I, Abhay Chamber, Jalori gate, Jodhpur

----Appellant Versus

1. Bhakar Ram S/o Shri Ratana Ji Devasi, Resident of Sojat City, Distt. Pali.

2. Shri Cement Limited, Bangar Nagar, Beawar, through General Manager.

                                                                     ----Respondent



For Appellant(s)          :     Mr. Jagdish Vyas
For Respondent(s)         :     Mr. Ayush Gehlot
                                Mr. Murli Sain for respondent No.1

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

19/08/2021

(2 of 5) [CMA-133/2000]

Since these appeals arise out of the common judgment dated

22.11.1999 passed by the Motor Accident Claims Tribunal, Sojat

City Camp Jaitaran, therefore, they are being disposed of by this

common judgment.

The present appeals were preferred against the judgment

and award dated 22.11.1999 passed by the Motor Accident Claims

Tribunal, Sojat City Camp Jaitaran in Claim Case No.15/97 and

16/97, whereby the learned Tribunal while deciding the claim

petitions of the respondents-claimants awarded compensation to

the tune of Rs.19,000/- and Rs.1,15,000/- respectively.

Learned Tribunal after framing of the issues, evaluating the

evidence and after hearing the counsel for the parties, decided the

claim petition of the claimants.

Learned counsel for the appellant-Insurance Company has

assailed the finding of the Tribunal on issue No.2. He submits that

while awarding the compensation against the appellant, the

learned Tribunal in its finding treated the injured respondent as

third party. He further submits that it is apparent on the face of

the record that the vehicle insured with the appellant was a goods

carrying vehicle and the respondent-claimants were travelling as

fare pay passengers. He submits that the factum of the

respondent-claimants travelling as fare payee passengers is

proved from the pleadings of the claim petitions preferred by the

respondent-claimants before the Tribunal which are reproduced as

under:-

";g fd izkFkhZ fnukWd 30-09-96 dks dk.kstk ls C;koj vkus ds fy,

fy, vizkFhkZ la] 1 dks fdjk;k vnk dj okgu esa cSBdj vk jgk Fkk

ftls vizkFkhZ la- 1 rst xfr] xQyr ,oa ykijokgh ls pyk jgk Fkk

ftlls mDr MEij la- vkj-ts- 01 th-2320 dslj flag dh gksVy ds

(3 of 5) [CMA-133/2000]

ikl iyVh [kk x;k ftlls izkFkhZs ds xaHkhj pksVsa vkbZA mDr nq?kZVuk

vizkFkhZ 01 dh xyrh ,oa ykijokgh ds dkj.k dkfjr gqbZ gS ftldh

izFke lqpuk la- 296/96 iqfyl Fkkuk] C;koj lnj esa vizkFkhZ la- 1

ds fo:} varxZr /kkjk 279] 337] 338 Hkk-n-l- esa ntZ gqbZ gSaA

foLr`r fooj.k layXu nLrkost esa ntZ gSaA "

He therefore submits that the finding recorded on issue No.2

treating the injured persons as third party is contrary to the

judgment of Hon'ble the Supreme Court in the case of National

Insurance Company Ltd. vs. Savitri Devi & Ors. (2013) 11

SCC 554.

Per contra, learned counsel appearing for the respondents-

claimants submits that the finding of fact arrived at by the

Tribunal does not call for any interference by this Court on the

ground that the Tribunal appreciated the material brought on

record before arriving at the conclusion. He therefore prays that

the appeals preferred by the Insurance Company may be

dismissed and the claimants may be allowed the compensation as

awarded by the Tribunal.

I have considered the submissions made at the Bar and have

gone through the judgment as well as the record of the case.

The factum of the accident with the offending vehicle is not

disputed. However, it has come on record by the conclusive

evidence that the vehicle involved in the accident was a goods

carrying vehicle and therefore, it was not open for the respondent-

claimants to travel in the same as a passenger. It is also noted

that in the pleadings of the respondents-claimants before the

Tribunal, they stated that claimants were travelling in the subject

truck from Kaneja to Beawar after paying the fare to the driver of

(4 of 5) [CMA-133/2000]

the truck. Thus, it is apparent on the face of record that the

respondents-claimants were traveling in the goods carrying vehicle

as passengers and the same was not permitted. Since the

Insurance Company had not covered the risk of the passengers

traveling in the goods carrying vehicle, the liability to pay the

compensation in the present case cannot be fastened on the

appellant - Insurance Company. It is settled proposition of law

that fare payee passengers travelling in a goods carrying vehicle

do not fall in the category of third party and therefore, they

cannot be treated as third party.

Since the Tribunal in its finding treated the claimants-

respondents as third party while awarding the compensation,

therefore the same is not sustainable in law and the Insurance

Company is not liable to pay the compensation in the present

case.

On this issue, Hon'ble the Supreme Court in the case of

National Insurance Company Ltd. vs. Savitri Devi (supra) held as

under:-

"8. After having gone through the award of the Claims Tribunal and the judgment and order passed by the leaned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured only as "goods carrying vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. Admittedly, the appellant Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number,

(5 of 5) [CMA-133/2000]

who should also come under the purview of the Workmen's Compensation Act."

In view of the discussion made above, the appeals are

allowed to the extent that the liability to pay the compensation

cannot be fastened on the appellant-Insurance Company and thus,

the appellant - Insurance Company is absolved from paying the

compensation in the present case.

Mr. Jagdish Vyas, learned counsel appearing for the appellant

- Insurance Company submits that the Insurance Company has

paid certain amount to the respondent-claimants and in view of

the decision of this case, the Insurance Company may be allowed

to recover the amount so paid by them from the owner of the

vehicle.