SOMTI BAI Vs. MISHRI LAL CHHOUDHARY

JUDGEMENT

(1.) A common order is being passed in this appeal, Misc. Appeal No. 142 of 1989, and in appeals, Misc. Appeal Nos. 143 and 144, both of 1989, all preferred by the claimants against the award of the Motor Accidents Claims Tribunal, Shivpuri, passed on 25. 9. 1989 in relation to an accident to truck No. MPW 4832.

(2.) FACTS not in dispute are-that truck No. MPW 4832 while carrying in its body labourers overturned on 5. 4. 1984 some time in the midnight in which two labourers, by name Hotam and Harvilas, died and the third Deo Pal suffered injuries resulting in fractures of his bones. The Claims Tribunal awarded to the claimants of the deceased in each case a compensation in the sum of Rs. 28,000/- and a sum of Rs. 12,000/- to the injured labourer, Deo Pal. The Claims Tribunal held only owner and driver of the vehicle jointly and severally liable for payment of compensation. The Tribunal totally absolved the insurance company from any liability by holding that the three above-named victims of the accident were not employed on the truck by the owner of the vehicle. They were labourers of the mine-owner and were carried in the truck as gratuitous passengers. The Tribunal directed refund of compensation paid by the insurance company towards 'no fault' liability, and the said amount was directed to be reimbursed to the insurance company by the owner and driver of the vehicle.

(3.) THE learned counsel, Mr. N. D. Singhal, appearing in all the three cases for the appellants, made strenuous efforts to assail the award of the Tribunal. First, it is urged that the Tribunal erred in completely absolving the insurance company from any liability. The finding recorded by the Tribunal that the three persons were gratuitous passengers has been questioned on several grounds. The oral evidence on record led by the claimants and owner of the vehicle were read in detail to contend that the three persons had boarded the truck as labourers on duty and they could not be termed as gratuitous passengers to absolve the insurance company completely from the liability. Alternatively, it is argued on behalf of the claimants that whatever may be the capacity in which the labourers boarded the truck, involved in the accident, it is not open to the insurance company to deny its liability on any ground not available to it under the provisions of Section 96 of the Motor Vehicles Act. Strong reliance is placed on a Division Bench decision of Indore Bench of this court in Patharibai Karansingh v. Firm Lalji Shankarlal 1985 ACJ 526 (MP), Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP), Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC) and Bhagwan Das v. National Insurance Co. Ltd. 1991 ACJ 1137 (MP ).