UNITED INDIA INSURANCE CO LTD Vs. SEKDIYA

JUDGEMENT

(1.) This judgment shall govern the disposal of M.A. Nos. 61 of 1998 (Claim Case No. 53 of 1995), 62 of 1998 (C.C. No. 63 of 1995), 63 of 1998 (C.C. No. 54 of 1995), 64 of 1998 (C.C. No. 62 of 1995), 147 of 1998 (C.C. No. 97 of 1995), 128 of 1998 (C.C. No. 95 of 1995), 133 of 1998 (C.C. No. 99 of 1995), 245 of 1998 (C.C. No. 58 of 1995), 395 of 1998 (C.C. No. 58 of 1995); 247 of 1998 (C.C. No. 60 of 1995) and 397 of 1998 (C.C. No. 60 of 1995) filed by the non-applicant insurance company and M.A. Nos. 395 and 397 of 1998 by claimants under section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') arising out of the awards passed by Additional Member, Motor Accidents Claims Tribunal, Manawar, District Dhar, on 1.10.97 (C.C. Nos. 53, 63, 54 and 62 of 1995), 27.11.97 (C.C. Nos. 97, 95 and 99 of 1995) and 19.1.1998 (C.C. Nos. 58 and 60 of 1995). In all the appeals common questions of law and facts are involved and they arise out of the same accident, therefore, they are being disposed of by common judgment.

(2.) The case of the claimants is that on 21.1.1995 the deceased Devabai, Sayribai and Kesarbai, Shantabai, Sagribai, Velkibai, Rukhadiya, Vagribai, etc., were engaged as labourers by the driver respondent-non-applicant Tetu Singh for unloading the truck No. JG 17-T-3839 belonging to the respondent-non-applicant Ghulam Mohd. and insured with appellant-non-applicant. The respondent Tetu Singh drove this truck rashly and negligently. It left the road and turned turtle in a pit, as a result of which Devabai and Sayribai died on the spot and Soma alias Somlu, Vagribai, Velkibai, Shantabai, Gorabai and Kesarbai sustained injuries and became permanently disabled. They filed above mentioned claim cases seeking compensation. The respondents, owner and driver, did not appear and were proceeded ex parte. The appellant insurance company resisted the claim and, inter alia, pleaded that the deceased and the injured forcibly boarded the truck. They were gratuitous passengers and were not covered under the insurance policy. The owner used the goods vehicle as public service vehicle and, therefore, the insurance company was not liable to pay compensation. The Tribunal after appreciation of evidence produced by both sides held that the accident occurred due to rash and negligent driving of the truck by respondent driver Tetu Singh, as a result of which Devabai and Sayribai died and the other claimants were injured. It held that the deceased and injured persons were engaged by the driver as labourers on the truck, therefore, they were covered under the insurance policy and the appellant insurance company was liable to pay compensation. It also held that if it was assumed that the deceased and the injured were not engaged as labourers, even then the appellant insurance company was liable to pay compensation as the breach of the condition of the insurance policy was committed by the driver and not by the owner. The insurance company has challenged this finding in M.A. Nos. 147, 61, 62, 63, 64, 128, 133, 245 and 247 of 1998 and Amar Singh and Kesarbai have filed M.A. Nos. 395 and 397 of 1998 for enhancement of compensation amount.

(3.) Mr. Dandwate, learned counsel for the appellant insurance company, submitted that the claimants failed to prove that the deceased and injured persons were engaged by the owner of the truck as labourers. In fact they were travelling as gratuitous passengers and their risk was not covered by insurance policy. The owner committed breach of the condition of the policy, therefore, the appellant insurance company was not liable to pay compensation, the learned Tribunal committed error in holding the appellant liable to pay the compensation. Mr, Rajpal and Mr. Sunil Jain, learned counsel for the respondents claimants, supported the impugned award.