NATIONAL INSURANCE COMPANY LIMITED Vs. KISHORI LAL

JUDGEMENT

(1.) Two grounds have been urged by Mr. Ashwani K. Sharma, the learned counsel appearing for the appellant assailing the award of the Claims Tribunal. Firstly, according to him section 147 of the Motor Vehicles Act, 1988 operated as a clear bar to the maintainability of the claim petition because the accident occurred in a place which is not a 'public place' as defined in section 2 (34) of the Motor Vehicles Act, 1988 and in terms of section 147 of the Act the appellant insurance company was required to issue an insurance policy which was operative only if the vehicle was driven in a public place. The second ground of attack is that even though claimant may have been entitled to a higher amount of compensation since he had elected the forum of Tribunal under the Motor Vehicles Act, 1988, rather than approaching the Commissioner under the Workmen's Compensation Act, 1923, the insurance company was liable only to pay amount awardable under the Workmen's Compensation Act, 1923. On both counts, the appellant must fail in this appeal, and for the following reasons.

(2.) The mishap occurred in the godown of Tata Company at Mithapur (Gujarat). The allegation was that while the bales were being unloaded, one bale hit the claimant in his neck resulting in injuries to him. Whether the godown of Tata Company was, or was not a public place was a pure question of fact. In the written statement filed by the appellant in answer to the claim petition, it has not at all been pleaded or averred that the site of the mishap was not a public place. Apart from that, in the written statement the appellant has not even averred that the contract of insurance between the appellant and the owner of the vehicle excluded the appellant's liability to indemnify if the vehicle was used in a place which was not a public place. Because these averments were not there in the written statement, the Tribunal did not frame any issue for adjudication on these points, viz., firstly did the insurance policy exclude the liability of insurance company in case the vehicle was plied in a place which was not a public place and secondly whether the godown of Tata Company was not a public place. That being the position, therefore, it is not open to the appellant insurance company to take up this ground of attack against the award in the present appeal.

(3.) Mr. Sharma while drawing my attention to section 147 of the Act has submitted that it was a requirement of the policy of insurance to insure a person against any liability which may be incurred by him in respect of the death or bodily injury to any person arising out of the use of motor vehicle in a public place. Yet, section 147 does stipulate that requirement indeed as a mandatory requirement in an insurance policy, conversely speaking, however, section 147 does not stipulate that an insurance policy cannot insure a person with respect to any liability if the vehicle is plied or used in a place which is not a public place. Therefore, per force, one has to turn to the contents of the insurance policy to find out whether it contained terms and conditions which limited the liability of the insurance company only in case the vehicle was used in a public place. As noticed earlier in this judgment, apart from not taking any such plea in the written statement, the appellant insurance company did not either produce the insurance policy before the Tribunal or adduce any evidence to the effect that the terms of the insurance policy absolved the insurance company from indemnifying if the vehicle was used in any place which was not a public place. This plea, therefore, is not available to the appellant at this stage.