ORIENTAL INSURANCE CO LTD Vs. PURNAMI NAIK

JUDGEMENT

(1.) THIS Miscellaneous Appeal is directed against the Award/Judgment dated 12.10.2000 passed by the Member, Second M.A.C.T., Northern Division, Sambalpur, in Misc.(A) Case No.87 of 1996 (S) in allowing the application filed by the L.Rs. of the deceased Saukilal Naik by answering the contentious issue fastening the liability upon the appellant- Oriental Insurance Company and respondent no.10-National Insurance Company Ltd. urging various legal contentions.

(2.) THE legal grounds urged in this Appeal against impugned Award are stated herein, there is no need to advert to the facts of this Judgment for the reason that the learned Member of the Tribunal has extensively referred to the same in the impugned Award. THE Appellant who was the opposite party no.4 before the Tribunal has filed this Appeal questioning correctness of the findings recorded on the issue no.1 at paragraph-9 of the Award against the Appellant holding that the contributory negligence on the part of the driver of the vehicle insured with the Appellant which is on fact and in law is not correct and further fastening the liability of 50% compensation upon this Appellant on the basis of contributory negligence at Rs.25,000/-towards the compensation awarded with interest by the Tribunal in favour of the L.Rs. of the deceased placing reliance upon the Ext.6. THE Insurance policy of the Jeep is an 'Act Policy' and the deceased was traveling as a passenger in the said Jeep, which is not permissible under the terms and conditions of the policy and the deceased person has been termed as a "gratuitous passenger" in respect of whom the Hon'ble Supreme Court has stated that no liability can be fastened upon the Appellant-Insurance Company, for the reason that the deceased has travelled in the Jeep in violation of the terms and conditions of the Insurance policy issued in favour of the insured owner of the vehicle involved in the accident and further the deceased also could not have been considered as a third party by the Tribunal to cover the policy and awarded compensation. THErefore, the finding of the Tribunal fastening the liability of 50% of the awarded compensation upon the Appellant on the basis of contributory negligence is erroneous in the eye of law and therefore the same is liable to be set aside.