NATIONAL INSURANCE CO LTD Vs. NIRMALA BAI

JUDGEMENT

(1.) Brief facts of the case are that on 6.8.1993 a car No. RNQ 900 turned down and met with accident while going from Jaipur to Jodhpur near Beawar in which an occupant Prakash Rai died. The car was driven by the respondent No. 5 and owned by the respondent No. 6. The vehicle was insured with the appellant National Insurance Co. Ltd. Legal heirs of the deceased claimant-respondent Nos. 1 to 4, preferred a claim petition before the learned Motor Accidents Claims Tribunal, Beawar (for short 'the Tribunal'). The respondent Nos. 5 and 6 contested the claim petition and contended that the accident was due to vis major. The learned Tribunal framed five issues and after taking the evidence and hearing both the sides, awarded a total compensation of Rs. 7,69,000 with Rs. 1,500 expenses and interest at the rate of 12 per cent per annum vide award dated 28.1.95. The liability to pay the compensation was made jointly and severally of the appellant and the respondent Nos. 5 and 6. Being aggrieved by the impugned award, the appellant has preferred this appeal.

(2.) Both the sides have admitted at Bar before me that the insurance policy in question was 'Act only' policy, and, it covered the third party risk only according to the Motor Vehicles Act, 1988.

(3.) The learned counsel for the appellant has argued that the deceased was a gratuitous passenger, and, as such, cannot be said to be a third party and that the insurance company cannot be held liable to pay compensation. The learned counsel has relied upon the decisions of the Himachal Pradesh High Court in Kaushalya Devi v. Dr. Lakhbir Sood, 1994 ACJ 12 (HP), and, of Gauhati High Court in Rashbihari Prasad v. P^bati Kedia, 1994 ACJ 532 (Gauhati), to support his argument that the insurance company is not liable to indemnify the claim with regard to the death of gratuitous passenger travelling in the car. The learned counsel for the appellant has also referred to a decision of this court passed in National Insurance Co. Ltd. v. Paras, 1994 ACJ 563 (Rajasthan), in which it was held that the passengers who are carried gratis are not compulsorily required to be covered by the policy under the provisions of section 95 of the Motor Vehicles Act, 1939, and, as such, the insurance company is not liable to pay the amount of compensation awarded.