NEW INDIA ASSURANCE COMPANY Vs. KURSHEED

JUDGEMENT

(1.) The appellant in this appeal is the 2nd respondent in M.C.O.P. No. 83 of 1985 on the file of the Motor Accident Claims Tribunal (Sub -Court), Coimbatore, Respondents 1 to 4 are the claimants and Respondent 5 is the 1st respondent in that proceedings. In this Judgment, the parties to this appeal are referred in the same rank in which they are described in the original proceedings. One Abdul Majeed died in an accident involving a lorry bearing No. TNN 5992 owned by the 1st respondent before the Tribunal and insured with the 2nd respondent before the Tribunal which is not in dispute. The accident took place on 19.11.1984 at 3:00 p.m. when the deceased was admittedly travelling in the lorry along with his goods. It is also pleaded and established and therefore, there is no dispute about the same as well. The claimants being the widow and minor children of the deceased filed a claim petition claiming compensation of Rs. 1.35 lakhs on account of the untimely death of the said deceased, Abdul Majeed. The 1st respondent before the Tribunal remained absent and he was set ex -parte. The 2nd respondent before the Tribunal contended that since the deceased is admittedly a passenger in a goods vehicle, which is not authorised to carry such a passenger, the insurance company cannot be made liable for that claim. Exs.B -1 and B -2 are the insurance polices and the defence of the insurance company was (sic) and holding that there was rashness and negligence on the part of the driver of the lorry belonging to the 1st respondent before it, passed an award for a sum of Rs. 1,20,000/ - together with interest at 12% per annum thereon payable from the date of the petition till the date of realisation. The correctness of this award is questioned by the 2nd respondent before the Tribunal in this appeal.

(2.) I heard Mr. K. Padmanabhan, learned counsel appearing for the appellant in this appeal and Mr. Paul Benjamin, learned counsel appearing for respondents 1 to 4 in the appeal, The learned counsel for the appellant vehemently contended that under Sec. 95 of the Motor Vehicles Act 1939 as it stood then, there is no need to cover the liability of a passenger, like the deceased in the present case, travelling in a lorry which is not authorised to carry such passengers. According to the learned counsel for the appellant, since statutorily such a risk is not to be covered, the Tribunal erred in passing the award even against them though the defence of the insurance company is established by Exs.B -1 and B -2 and the oral evidence of R.W. 1 namely the Administrative Officer of the insurance company. It is no doubt true that the arguments advanced by the learned counsel appearing for the appellant, on the face of it appears to be a pure question of law and deserves acceptance, yet in view of the categorical pronouncement of the two learned Judges of this Court in a judgment reported in, 1997 -1 L -W 174 equivalent to, 1997(1) MLJ 148, the legal submissions made by the learned counsel for the appellant do not remain to be considered by me in this appeal. The facts available in the Judgment of the Division Bench of this Court referred to above are as follows: -

(3.) Thereafter, the owner of the vehicle filed a batch of Letters Patent Appeals which came up for disposal before the Hon'ble Chief Justice and the Hon'ble Mr. Justice A.R. Lakshmanan. The learned Judges went into the pleadings and evidence made available in that case. While deciding those appeals, the learned Judges held as follows: -