NATIONAL INSURANCE COMPANY LTD. Vs. SUSHILA AND OTHERS

JUDGEMENT

(1.) This appeal has been filed by the Insurance Company against the award dated 25.11.2010 on the ground that liability has wrongly been cast on it.

(2.) In the process of overtaking a truck, respondent No.1 hit the jeep with a big stone lying on the side of the road due to which the tyre of the jeep got burst and it turned turtle. As a result of this all the occupants of the jeep sustained multiple injuries. Rajesh Kumar succumbed to his injuries. The Tribunal dismissed the petitions filed by injured- petitioners Pawan and Baljeet whereas the one filed by the legal heirs of deceased Rajesh Kumar i.e. the present respondents, was allowed and a compensation of Rs. 4,81,924/- was awarded to them to be payable by respondent No.3-insurance company which was to then recover the same from respondents No. 1 and 2. Against that award the insurance company has come up in appeal.

(3.) Learned counsel for the insurance company has pointed out that neither was it pleaded in the claim petition nor was it the case of the owner or the driver in their replies that the deceased was an authorised person and nor was any evidence led to show that the deceased was an authorised person. In the circumstances he has assailed the finding of the Tribunal to the effect that since the policy permitted two authorised persons apart from the driver to travel in the jeep, it would mean that the appellant- insurance company was liable. His argument that in the absence of any averment or evidence that the deceased was an authorised person it had to be held that the deceased was either a gratuitous or a fare paying passenger and, to that extent was an unauthorised person and, therefore, compensation could not have been foisted upon the appellant.