DEVILAL Vs. SIDHANATH

JUDGEMENT

(1.) On 2.11.1995 deceased Vishal, Mushtak, A-2 and Mehmood, A-3, were travelling from Sendwa to Indore by truck No. MP 09-D 6954. Due to rash and negligent driving of the truck by Ravindra, R-3, the truck driver, the truck overturned resulting in death of Vishal and injuries to both Mushtak, A-2 and his brother Mehmood, A-3. Claim Case No. 5 of 1996 was filed by parents of deceased Vishal. Mushtak, A-2, filed Claim Case No. 35 of 1996 while Mehmood, A-3, filed Claim Case No. 80 of 1996. The Tribunal held the truck driver guilty of negligence and rashness. It held the truck owner liable to pay compensation. However, insurance company, R-2, was exonerated. Award of Rs. 62,000 with interest at the rate of 12 per cent per annum to the parents of deceased Vishal, award of Rs. 25,000 with interest at the rate of 12 per cent per annum in favour of Mushtak, A-2 and an award of Rs. 1,500 with interest at the rate of 12 per cent per annum in favour of Mehmood, A-3, were passed. All these appeals are filed against these awards in claims arising out of the same accident and thus are being decided together.

(2.) In these appeals appellants have claimed that as the truck owner, R-l, had paid additional premium of Rs. 50 to cover the liability for non-fare paying passengers under the comprehensive policy of insurance, the insurance company could not be exonerated and was also liable to pay compensation and that the compensation awarded had been too low and should be enhanced.

(3.) First, I take up the issue of liability of insurance company. In the present case the deceased Vishal was claimed to be a cleaner in the truck while Mushtak, A-2 and his brother Mehmood, A-3, had been gratuitous passengers. Certainly, under the law both the driver and owner of the truck are liable to compensate for death or injury to them. It is true that under any Act policy risk to the gratuitous passengers in a goods vehicle was not to be covered yet it can always be open for insured to get covered the higher risk by payment of extra premium. Therefore, insurance company is also free to cover the higher risk. However, for this purpose a specific agreement and payment of extra premium was necessary. In National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC) and Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., 1977 ACJ 343 (SC), it was clearly held that the insurance company could cover the higher risk on payment of extra premium. In Amrit Lai Sood v. Kaushalya Devi Thapar, 1998 ACJ 531 (SC) and Oriental Insurance Co. Ltd. v. Shanti Devi, 1996 (2) TAG 102, it was held that the insurance company by taking additional premium could undertake to cover unlimited liability also. Here in this case by acceptance of extra premium of Rs. 50 to cover the risk of non-fare paying passenger, insurance company had undertaken the liability. Thus, exoneration of the insurance company had been erroneous.