NEW INDIAASSURANCE COMPANY LIMITED Vs. TOMY

JUDGEMENT

(1.) AGGRIEVED by award dated 25.03.2013, the 3rd respondent insurer, who stands directed to pay the award amount without any privilege to recover the same from the registered owner in O.P.(MV) No. 1979/2009 of the Motor Accidents Claims Tribunal, Ernakulam, has come up in appeal.

(2.) IT is a case wherein a pedestrian was knocked down by an autorickshaw, that was driven by the 2nd respondent. The appellant insurer contended that even though the 2nd respondent was holding a valid driving licence, the vehicle was not having any fitness certificate and further that the 2nd respondent was not holding a badge enabling him to drive a transport vehicle. Even though the said questions were raised before the Tribunal, the Tribunal has not accepted them and directed the appellant to pay the amount of compensation.

(3.) ADMITTEDLY , there is no evidence to show that the 2nd respondent was carrying passengers in the autorickshaw at the relevant time. The learned Senior Counsel has even though pointed out that the normal presumption is that when a transport vehicle was being driven, it was being driven as a transport vehicle for the purpose of carrying passengers, the said argument can be differentiated in some cases. Suppose a vehicle was being taken to the workshop or it was being taken back from the workshop after repairs, it cannot be said that the vehicle was being used for hire or reward. Only when there is some sort of evidence to show that the vehicle was being used for hire or reward, according to me, the presumption will come into play. In order to attract the presumption that the transport vehicles are being driven as a means of transport, some prima facie materials should be made out to show that the vehicle was being used as a transport vehicle at the time of accident. When no passengers were being carried in the autorickshaw at the time of the incident, according to me, there cannot be a presumption that it was being used for hire or reward at the time of incident.