Rajasthan High Court
United India Insurance Co vs Ismail Bhai on 21 April, 2022
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 492/1996
United India Insurance Co.,
Baroda Branch, Insurance Co.,
Baroda, Gujarat
----Appellant-Non-Claimant No.3
Versus
1. Ismail Bhai S/o Sh. Ibrahim Bhai, aged about 62 years
2. Hanif Bhai S/o Sh. Ibrahim Bhai, aged about 34 years
3. Smt. Banu Bibi D/o Sh. Ishmail Bhai, aged about 32 years
4. Jubeda D/o Sh. Ishmail Bhai, aged about 30 years
5. Sh. Mustak Bhai S/o Shri Ismail Bhai, aged about 28 years
6. Sh. Kadar Bhai S/o Shri Ishmail Bhai, aged about 26 years
7. Mumtaj Bano D/o Shri Ishmail Bhai, aged about 24 years
8. Shahida Bano D/o Sh. Ishmail Bhai, aged about 22 years
9. Hashan Bhai D/o Sh. Ishmail Bhai, aged about 17 years
(Respondent No.9 is minor through his natural father sh. Ishmail
Bhai S/o Sh. Ibrahim Bhai)
(All residents of Behind Nagar Palika, Paridar Vaga Daboi,
Distt. Baroda, Gujarat)
Respondents-Claimants
10. Sh. Ibrahim Bhai S/o Sh. Bhika Bhai, Resident of Bagodia,
Distt. Baroda, Gujarat (Truck Driver)
(2 of 5) [CMA-492/1996]
For Appellant(s) : Mr. J.K. Singhi, Sr. Advocate with
Mr. R.P. Singh
For Respondent(s) : None
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Order
21/04/2022
The instant appeal has been preferred by the appellant-
Insurance Company against the impugned judgment and award
dated 29.07.1995 passed by the Motor Accident Claims Tribunal,
Beawar, District Ajmer (for short 'the Tribunal') by which the claim
petition filed by the claimants respondents was allowed and the
appellant-Insurance Company was directed to pay a compensation
of Rs. 92,000/- to the claimants.
Brief facts of the case are that on 01.03.1989 deceased Smt.
Madina was travelling as a passenger in vehicle Truck bearing No.
GQB-6632 after paying fair to the driver. The Truck met with an
accident on 02.03.1989 due to rash and negligent driving of the
driver of the truck and in the said accident the deceased sustained
injuries and died. The claimants respondents submitted a claim
petition before the Tribunal seeking compensation of Rs.
3,00,000/-.
The Tribunal after framing the issues, evaluating the
evidence available on the record and hearing the counsel
appearing for the parties decided the claim petition of the
respondents claimants directing the Insurance Company to pay
compensation of Rs. 92,000/- to the claimants.
Feeling aggrieved with the impugned judgment and award
dated 29.07.1995, the appellant- Insurance Company has filed
(3 of 5) [CMA-492/1996]
instant appeal inter alia on issue that the vehicle in question was a
goods carriage vehicle and the same was insured for that purpose
only and no premium of the passengers was taken. Hence, the
insurance policy was not covered for the risk of the passengers
travelling in the goods carriage vehicle.
Instant appeal was submitted by the Insurance Company
challenging the said award and on 23.04.2004 this Court
dismissed the appeal of the Insurance Company against the
claimants on the ground that the quantum of compensation was
not found fit to be interfered with and the appeal was admitted
confined to a particular issue of liability of the Insurance Company
or not. Thereafter, the case remained pending before this Court for
more than 26 years and case was deferred for one reason or
another.
This Court passed an order on 18.02.2022 observing that
this appeal is pending before this Court for about 26 years and the
case has not been decided for the reason that the same was
adjourned for one reason or another and on that day a specific
order was passed by this court that this case would not be
adjourned on the next date. Thereafter, no-one has put in
appearance on behalf of the respondents on 25.02.2022 and the
case was directed to be listed on 08.03.2022 and on that day also
adjournment was sought by the parties and the case was directed
to be listed on 07.04.2022 and today also the case is listed for
hearing and no-one has put in appearance on behalf of the
respondents. Hence, under these circumstances the Court is left
with no other option except to hear and decide this appeal, which
is lying pending since 1996 for adjudication.
(4 of 5) [CMA-492/1996]
Learned counsel for the appellant Insurance Company has
reiterated the submissions made by him in the pleading and in
support thereof he has placed reliance on the judgment delivered
by the Hon'ble Apex Court in the case of National Insurance
Company Ltd. Vs. Savitri Devi and Ors. reported in
2013(11)SC 554 wherein the Hon'ble Apex Court has held that if
the deceased persons have wrongly travelled in a vehicle and if
their risk is not covered as per the terms and conditions of
insurance policy, then the Insurance Company may be directed to
pay the amount of compensation to the claimants and recover the
same from the driver and owner of the vehicle.
I have heard learned counsel for the appellant- Insurance
Company and gone through the impugned judgment and award
dated 29.07.1995 as well as relevant record of the case including
the finding of fact recorded by the Tribunal on issue No.3.
I have considered the submissions made by the counsel for
the appellant.
Since the issue involved in this matter is no more res integra
as the Hon'ble Apex Court has already decided this issue in the
case of National Insurance Company Ltd. Vs. Savitri Devi (supra)
as under:-
"After having gone through the award of the Claims
Tribunal and the judgment and order passed by the learned
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 insurance policy are very clear and categorical
(5 of 5) [CMA-492/1996]
and it creates a specific bar on carrying of any passengers,
except the employees other than the driver, not exceeding six
(6) in number, who should also come under the purview of the
Workmen's Compensation Act."
In view of the above discussions the finding arrived at by the
Tribunal while deciding issue no.3 is set aside and the same is
modified with a direction to give liberty to the appellant Insurance
Company to recover this amount from the driver and owner of the
offending vehicle in accordance with law.
With the above observations, the appeal stands disposed of.
Stay application as well as all pending application(s), if any,
also stand disposed of.
(ANOOP KUMAR DHAND),J
Ritu/1
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