UNITED INDIA INSURANCE CO LTD Vs. NAGAMMAL

JUDGEMENT

(1.) RAMANUJAM, J.-This is an appeal filed by the Insurance company against the award passed by the Motor Accidents Claims Tribunal, Coimbatore in M.C.O.P. No. 45 of 1978, awarding a compensation of Rs. 15,000 against the appel-lant Insurance Company and the 6th respondent in respect of a motor accident that took place on 22nd December, 1977.

(2.) ON 22nd December, 1977, about 11.30 P.M. the 6th respondent herein was proceeding in his car MSQ. 7505 on the Palghat main road towards Coimbatore. The car was driven by the owner, the sixth respondent, and one Krishna Pillai and one Viswanathan were the occupants of the car. The car collided with a lorry MYM 6555 which was parked on the left side of the road. As a result of the said collision, Krishna Pillai, one of the occupants of the car, died on the spot. ON the ground that the car was driven by the owner of the vehicle at the time of the accident in a rash and negligent manner, the legal representatives, the wife and children of the deceased Krishna Pillai, filed the claim petition M.C.O.P. No. 45 of 1978 claiming a compensation of Rs. 76,000 both as against the owner of the vehicle as well as the Insurance Company. The said claim was opposed by the owner of the vehicle on the ground that he was not rash and negligent in driving the vehicle,that the lorry which was proceeding before the car suddenly stopped and the accident was due to the sudden stoppage of the lorry without any signal, and that, in any event, the compensation claimed was excessive. The Insurance Company took up the defence that the policy issued to the owner covering the vehicle excluded any liability in respect of death or bodily injury to any passenger and therefore, they are not liable to pay any compensation to the claimants as per the terms of the policy.

(3.) IN this appeal filed by the INsurance Company, the finding of the Tribunal on the question of rashness and negligence has not been canvassed. Similarly, the quantum of compensation as fixed by the Tribunal has also not been disputed. The only question that has been canvassed in this appeal by the appellant is as to whether the policy, Exhibit B-1, issued in respect of the vehicle in question, could make the INsurance Company liable in respect of the claim made in this case. As already stated, the substantial controversy between the parties before the Tribunal was whether the policy Exhibit B-1, will cover the risk of an occupant of the car who is a gratuitous passenger. According to the INsurance Company, the deceased Krishna Pillai being a gratuitous passenger of the car, it is not bound to cover under the terms of the policy, his risk. The claimants on the other hand, contended that as the deceased was travelling in the car in connection with the business of the owner of the car, the deceased should be taken to have been travelling in the car by reason of his employment with the owner and there-fore, the policy should be taken to cover his risk. The Tribunal, however, without considering the main dispute, held that even assuming that Krishna Pillai was travelling in the car as a gratuitous passenger, since the owner of the vehicle did not object to his travelling in the car, he should be taken to have travelled in the vehicle with the consent of the owner , and in such cases, the owner cannot aviod the liability. The finding on that question has been canvassed by the appellant before us.