NATIONAL INSURANCE COMPANY Vs. SHABBIR MOHMAD KUNJADA

JUDGEMENT

(1.) Heard learned advocate Mr. Dakshesh Mehta appearing on behalf of appellant - National Insurance Company.

(2.) The Insurance Company has challenged the award passed by Motor Accident Claims Tribunal, Godhra in Motor Accident Claim Petition N. 2121 of 1999 Exh. 85. dated 6th September 2007. The Claims Tribunal has awarded Rs.1,57,000/ - being a compensation with 7.5% interest in favour of respondents - claimants. It is a case of injury received by the claimant - Minor Sabbir Mahmmad Kunjada who was working as Mechanic. The accident occurred on 27th August 1999 when applicant and other friends and relatives were travelling in private vehicle Tata Sumo No. GJ -17 -C3428 from Dahod to Ajmer. On 27th August 1999 at about 5 -00 am, when Tata Sumo was reached near Vijayvada Bakalvada, at that occasion, opponent No.1 who was driving the vehicle in a rash and negligent manner an turned turtle and due to that, the left hand of the applicant was crushed and he was admitted in hospital and complaint was lodged with Mina Police Station - Rajasthan and medical treatment was obtained in Baroda. The total claim was made by claimant Rs.3 lakhs. The Insurance company - opponent No.3 has filed reply vide Exh.19 and vide Exh.59, issues were framed by Claims Tribunal.

(3.) Learned advocate Mr. Mehta raised contention before this Court that in Tata Sumo, ten passengers and one driver were not allowed as per condition, but, beyond sitting capacity they were travelling which amounts to breach of insurance policy and also raised contention that looking to the evidence of injured person, he was travelled in Tata Sumo on hire from Dahod to Ajmer. Therefore, it is a clear breach of condition of insurance policy being a private vehicle taken on hire. Therefore, insurance company is not liable to pay compensation to the claimant. The insurance company has not raised specific contention in written statement Exh.19. The insurance company has not led any oral evidence either of driver or owner - respondents No.l and 2. Respondents No.1 and 2 - driver and owner of Tata Sumo remained absent before the Claims Tribunal and against them, ex -parte proceedings were initiated. Only insurance company - respondent No -3 has filed reply vide Ehx 19. So, before the Claims Tribunal, except claimant and his father's evidence was there which was cross -examined by advocate of insurance. The evidence of the claimant Exh.61 was not clear as to whe her Tata Sumo was taken on hire by claimant or not At the time when the accident was occurred, applicant Sabbirbhai was minor represented by his father Mahmmadbhai Chhotubhai Kunjada who was examined vide Exh.80. According to evidence of Sabbirbhai Exh.61, they were travelling in Tata Sumo No.GJ -17 -C -3428 on 26t" August 1999 along with his friends and relatives and accident occurred on early in the morning at 5 -00 am on 27th August 1999 within 15 km. away from Ajmer in jurisdiction of Mina Police Station. Mahmmadbhai Chhotubhai Kunjada was examined vide Exh.80 and according to his evidence, his friend Kamleshbhai Parsottambhai Patel was having Tata Sumo and due to friendship for religious purpose, the Tata Sumo was taken from his friend. Therefore, Tribunal has considered the evidence of Mahmmadbhai Chhotubhai vide Exh.80 and come to conclusion that from the evidence of Mahmmadbhai, it was not come out the facts that Tata Sumo was taken on hire by claimant. There was no evidence from insurance company to examine the owner and driver to prove their contention before the Claims Tribunal that Tata Sumo was taken on hire by claimants. So, in absence of evidence of owner and driver, the Claims Tribunal has believed the evidence of Shri Mahmmadbhai Chhotubhai Kunjada Exh.80 and come to conclusion that Tata Sumo was not taken on hire, but, it was taken for religious purpose based on relationship of friendship. The Tata Sumo is a private vehicle and owner of the vehicle is entitled to travel with the friend for social obligation or religious purpose and without taking any fare from such friends. There was no lightest evidence on record that fare was paid by claimant to Kamleshbhai Patel, the evidence of Mahmmadbhai Kunjada Exh.80 was not rebutted by evidence of driver and owner of Tata Sumo. The insurance policy issued by insurance company is a comprehensive policy in favour of owner of Tata Sumo. In comprehensive policy, according to terms and conditions of such policy, if occupants of Tata Sumo are entitled to travel if their travelling is without paying any fare to the owner of the Tata Sumo, in this case also, fare was not paid by claimant and there was no positive evidence contrary to the evidence of claimant produced by insurance company on record before the Claims Tribunal. The appellant company had not made any request to Tribunal to issue summons to driver and owner of Tata Sumo. No such efforts have been made. Therefore, Tribunal has rightly examined the matter as discussed in Para 7 of the and and come to conclusion that Tata Sumo was not taken by claimant on hire.