[[CASE NUMBER]ASE NUMBER] ORDER IN THE HIGH [CASE NUMBER]OURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2749 of 2013 [ENTITY] Appellant(s) Versus [ENTITY] SIN[CASE NUMBER]E DE[CASE NUMBER]D. THROUGH HEIRS & 2 Defendant(s) Appearance: GOVERNMENT PLEADER for the Appellant(s) No. 1 MR [ENTITY], ADVO[CASE NUMBER]ATE for the Defendant(s) No. 3 MR. [ENTITY], ADVO[CASE NUMBER]ATE for the Defendant(s) No. 1.1 - 1.3 [CASE NUMBER]ORAM: HONOURABLE MS.JUSTI[CASE NUMBER]E [ENTITY] Date : 25[[CASE NUMBER]ASE NUMBER]03[[CASE NUMBER]ASE NUMBER]2014 ORAL ORDER
1. This appeal under [SE[CASE NUMBER]TION] of the [A[CASE NUMBER]T] though stated to have been filed under [SE[CASE NUMBER]TION] of the [A[CASE NUMBER]T], is directed against the judgment and award dated 3rd October 2012 passed by the Motor Accident [CASE NUMBER]laims Tribunal (Main), Amreli in [[CASE NUMBER]ASE NUMBER].
2. Deceased [ENTITY], who was serving as a senior clerk in the office of the appellant was travelling in a Tata Sumo Jeep No.GJ-14-G-183 and was going to Ahmedabad to meet an advocate in connection with a case of the office of the appellant pending at Ahmedabad. At about 10:30 a.m. when the jeep was proceeding on the Barvala-Dhandhuka Highway and reached near the railway crossing gate of Polarpur, the driver of the jeep who was driving the same in excessive speed and in a rash and negligent manner, lost control over the vehicle and the jeep dashed against a tree on the side of the road. Deceased [ENTITY] sustained head injuries as well as other injuries on various parts of his body and died on the spot. After the accident, the dead body of the deceased was shifted to the [CASE NUMBER].H.[CASE NUMBER]., Barvala where the postmortem was carried out. His wife and children, namely, respondents No.1 to 3 lodged a claim petition before the Tribunal seeking compensation of Rs. 15,00,000[[CASE NUMBER]ASE NUMBER]- from the opponents therein.
3. Before the Tribunal, it was contended on behalf of the respondent No.3-Insurance [CASE NUMBER]ompany that it was not liable to indemnify the appellant as the deceased was travelling as a passenger in the jeep whereas the insurance policy issued in favour of the appellant was an "Act only" policy and did not cover the risk of the occupant. The Tribunal, after appreciating the evidence on record, held that the accident had occurred on account of the rash and negligent driving on the part of the driver of the offending vehicle. The Tribunal awarded compensation of Rs.15,00,000[[CASE NUMBER]ASE NUMBER]- with interest at the rate of 9% to the claimants by holding the appellant and the respondent No.2 herein to be jointly and severally liable to pay the same. The Tribunal, however, exonerated the respondent No.3- [ENTITY] from the liability of satisfying the award. Being aggrieved, the appellant (original opponent No.2) is in appeal.
4. Mr. [ENTITY], learned advocate for respondent No.3-Insurance [CASE NUMBER]ompany invited the attention of the court to the Motor Insurance [CASE NUMBER]ertificate cum Policy Schedule (exhibit-
36) to point out that the policy in question was an "Act only"policy and did not cover the risk of the occupants. It was pointed out that the liability of the insurance company to indemnify the insured was only to the extent of the statutory liability and additionally towards paid driver, conductor, cleaner as contemplated under [SE[CASE NUMBER]TION] and that the deceased does not fall within any of the said categories and, therefore, the risk is not covered by the insurance policy. It was submitted that the Tribunal, upon duly appreciating the evidence on record, has therefore, rightly held that the insurance company is not liable to indemnify the insured and, as such, there is no warrant for intervention of this court.
5. From the grounds set out in the memorandum of appeal, it is apparent that impugned judgment and award has been challenged mainly to the extent the Tribunal has exonerated the insurance company from the liability to indemnify the appellant. In the grounds of appeal, it has been stated that the Tribunal has failed to appreciate that the deceased was travelling in the car which was duly insured and erred in appreciating that under "Private [CASE NUMBER]ar Liability Only Policy", the insurance company, that is, the respondent No.3 herein is not liable to pay any compensation. It is further the case of the appellant that the Tribunal should have verified all the relevant aspects of the policy and ought not to have completely exonerated the insurance company but should have held it to be liable at least to some extent.
6. As can be seen from the impugned award passed by the Tribunal on the question of liability, the Tribunal has observed that the jeep which was driven by the opponent No.1 was owned by the appellant and was insured with the respondent No.3-insurance company. The Tribunal, after referring to various decisions that were cited on behalf of the insurance company, found that the jeep in question, which was insured with the respondent No.3-insurance company was under a "Private [CASE NUMBER]ar Liability Only Policy" and, therefore, the insurance company was not liable to pay any compensation to the claimants and that the respondent No.1-driver being the tortfeasor and the appellant herein being the owner of the vehicle being the co-tortfeasors, were jointly and severally liable to pay the compensation to the claimants.
7. Insofar as the liability of the insurance company to indemnify the occupant of the vehicle is concerned, the Supreme [CASE NUMBER]ourt in the case of [PRE[CASE NUMBER]EDENT], has made reference to it earlier decision in the case of [PRE[CASE NUMBER]EDENT], wherein it has been held that although the observation made in [PRE[CASE NUMBER]EDENT], was in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. In the said case, the court upheld the contention of the appellant insurance company that it owned no liability towards the injuries suffered by the deceased who was a pillion rider, as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger. Examining the facts of the present case in the light of the above principles, the insurance policy in question is an "Act only" policy. A perusal of the Schedule of Premium reveals that in addition to the statutory liability, it covers the risk of paid driver, conductor and cleaner. The deceased who was travelling in the offending jeep was working as a clerk in the office of the appellant and was, therefore, admittedly not the driver, conductor or cleaner of the vehicle. [CASE NUMBER]learly, therefore, the deceased does not fall under any of the categories covered by the insurance policy. The above referred decision of the Supreme [CASE NUMBER]ourt would squarely applicable to the facts of the present case, viz., the deceased was travelling in the offending vehicle as a passenger who was not covered by the policy. The insurance company was, therefore, not liable to indemnify the appellant in respect of the liability incurred by him on account of the death of the deceased in the vehicular accident. The Tribunal was, therefore, wholly justified in exonerating the respondent No.1-insurance company from the liability of paying compensation to the claimants.
8. In the light of the above discussion, the appeal fails and is, accordingly, summarily dismissed. The appellant herein shall deposit the entire awarded amount together with interest and proportionate costs with the Tribunal within a period of six weeks from the date of receipt of a copy of this judgment. The Registry shall forthwith send back the record and proceedings of the case.
([ENTITY], J.) Vahid