BASNI KUMAR Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This appeal has been filed by the owner of truck No. RNE 6249 in which one Narain Lal died. The legal representatives of deceased Narain Lal, therefore, filed a claim petition before the Motor Accidents Claims Tribunal, Dausa which was pleaded to determine an amount of compensation of Rs. 1,95,000 in favour of the claimant-respondent Nos. 2 to 7 herein. Since the quantum of compensation is not under challenge, it is not essential to enter into the detailed facts in this regard. The only ground of challenge to the impugned award by the owner of the vehicle, the appellant herein, is to the effect that the insurance company should not have been exonerated of the liability to pay the amount of compensation since the vehicle was insured. When this submission was tested in the light of the analysis of the evidence made by the Presiding Officer of the M.A.C.T., it is more than apparent that the owner of the vehicle, who is the appellant herein, is guilty of the breach of the terms and conditions of the policy, since the terms and conditions of the insurance policy clearly precluded the owner of the vehicle from using the vehicle for carrying passengers in the vehicle except its employees including the driver and that too not exceeding six in number. But it was stated by the claimant in the claim petition itself that the driver of the concerned truck carried passengers after realising a fare of Rs. 8 per passenger and the deceased, who died, was also one such passenger from whom the fare had been realised.

(2.) The counsel for the appellant, however, attempted to fasten the liability on the insurance company on the averment that the breach of the terms and conditions of the policy was not wilful on the part of the owner of the vehicle since it was the driver who was carrying the passengers after realising the fare. But this submission is fit to be rejected outright considering the terms and conditions of the insurance policy which was accepted by the owner of the vehicle and, therefore, the owner of the vehicle would clearly be held vicariously liable for the acts of omission and commission on the part of the driver which went against the terms and conditions of the policy. In that view of the matter, the lapse on the part of the driver, who used the vehicle contrary to the terms and conditions of the vehicle will have to be shifted on the owner of the vehicle as it is he who had to ensure that the vehicle should not be used in an illegal way contrary to the terms and conditions of the policy.

(3.) From the aforesaid averments it could also be noticed that the owner of the vehicle was impleaded as a party before the Tribunal on whom notice in regard to the claim petition was also served, but in spite of service of notice, he had failed to appear before the Tribunal controverting the averment of the claimants who stated that the deceased had paid the fare for boarding the truck and, therefore, at the appellate stage he cannot be permitted to urge that he had no opportunity to prove that the terms and conditions of the policy were not breached or that the fare was not realised by the driver. This is clearly a feeble argument advanced on behalf of the appellant for the claimant right at the threshold came up with a case that the deceased passenger had paid Rs. 8 for travelling on the truck from which the owner of the vehicle was clearly expected to know that this was a gross breach of the terms and conditions of the policy and in case he had any defence to contradict this averment made by the claimant, he should have done so before the Tribunal itself. But knowingly and willingly, he has failed to appear in the Tribunal and from the evidence on record which was available to the Tribunal, it could be reasonably inferred that there was gross breach of the terms and conditions of the policy. In that view of the matter, if the amount of compensation has been ordered to be paid by the owner of the vehicle who is the appellant herein, it is difficult to transfer this burden on the insurance company. The appeal thus has no merit and hence it stands dismissed at the admission stage itself. Appeal dismissed.