4 Sep 2022 3:04 PM GMT
The Jammu and Kashmir and Ladakh High Court recently ruled that In a claim with regard to death or disability of a person travelling by a goods vehicle /goods carriage, as gratuitous or non-gratuitous does not, by the application of statutory provisions of Motor Vehicles Act, fasten the liability on the insurer, except an owner of the load /goods travelling in the vehicle having such...
The Jammu and Kashmir and Ladakh High Court recently ruled that In a claim with regard to death or disability of a person travelling by a goods vehicle /goods carriage, as gratuitous or non-gratuitous does not, by the application of statutory provisions of Motor Vehicles Act, fasten the liability on the insurer, except an owner of the load /goods travelling in the vehicle having such load /goods.
A bench of Justice M A Chaudhary was hearing an appeal wherein the appellant-Insurance Company had challenged the Award passed by the learned MACT Srinagar in a Claim Petition., whereby the amount of Rs 3,27,864/- together with interest @ 6% P.A from the date of institution of the Claim Petition, had been granted as compensation in favour of claimants /respondents 1 to 5 payable by the appellant Company.
The appellants in their appeal challenge the award primarily on the ground that the appellant Company had been saddled with the liability of payment of compensation to the claimants, though it was not liable to pay the same, as the deceased, for whom the compensation had been awarded, was the gratuitous passenger travelling in the Oil Tanker owned by respondents 6 & 7 and insured with the appellant Company. Appellants further argued that that the offending vehicle was not a passenger vehicle and the deceased who was stated to be a police official had travelled by the said vehicle as a gratuitous passenger and the insurance company was not liable to compensate the deceased.
The moot question that fell for adjudication before the bench in the Appeal was that whether the Appellant Company, as insurer, was not liable to indemnify the insured owners of the offending vehicle to make payment of compensation to the claimants.
Adjudicating upon the matter the bench placed reliance on Supreme court Judgement in National Insurance Co. Ltd. Vs. Baljit Kaur & Ors., reported as (2004) wherein SC observed,
"We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer".
Deciding the matter the bench recorded that the Tribunal had misdirected itself to hold that in view of the deceased being non-gratuitous passenger on payment of fare, the insurer was liable to indemnify the insured. The liability of the insurer could not be there even if the deceased would have been non-gratuitous passenger in a carriage vehicle as decided by the Tribunal in view of the law laid down by Hon'ble Apex Court in all the judgments on the subject, th bench underscored.
Applying this cemented position of law the bench observed that the judgment impugned requires to be interfered with to the extent of liability on the appellant-insurer and accordingly the impugned judgment is ordered to be modified holding that the appellant –insurer was not liable to indemnify the liability of the insured-owners of the offending vehicle.
In this backdrop, it is directed that the awarded amount along-with simple interest @ 6% P.A. shall be satisfied by the appellant-insurer payable to the claimants and the appellant shall have the right of recovery from the owners of the offending vehicle- respondents 6 & 7, in accordance with law, the bench concluded.
Case Title: New India Assurance Co Vs Mehra Begum
Citation: 2022 LiveLaw (JKL) 129
Click Here To Read/Download Judgment