F.A.O.NO. 1975 OF 1994 and F.A.O.No. 1284 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. F.A.O.NO. 1975 OF 1994 Date of decision:29th October, 2010 National Insurance Company Limited through its Shr. R.C.Gupta, Administrator Officer, Sector 35, Chandigarh. .......Appellant Versus Saroj and others ........Respondents 2. F.A.O.No. 1284 of 1994 The New India Ass. Co.Ltd.Rohtak through its duly constituted Attorney Shr. K.B.Bindal, Legal Officer. ........Appellant Versus Smt. Saroj and others .........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjeet Sharma, Advocate for the National Insurance Company Limited. Ms. Vandana Malhotra, Advocate, for the New India Assurance Company Limited. Mr. D.D.Bansal, Advocate, for the claimants. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. Both the appeals arise out of the same accident. The National Insurance Company Limited which was the insurer for the tractor trolley is the appellant in FAO NO. 1975 of 1994 and New India F.A.O.NO. 1975 OF 1994 and F.A.O.No. 1284 of 1994 2 Assurance Company Limited is the insurer for the truck in which the deceased was travelling and which is the subject matter of appeal in FAO No. 1284 of 1994. 2. The macabre accident comes through strange situation of a passenger in a truck getting beheaded, when truck was passing through the road, unmindful of a tractor trolley attempting to uproot a tree by rope tied around a tree and the rope beheading the deceased when the truck passed the road. The Tribunal assessed the negligence of both the vehicles as 50:50 and made the claim recoverable from the respective Insurance Company of the vehicles involved in the accident. 3. The contention in FAO NO. 1284 of 1994 by the insurer of the truck is that the deceased was a gratuitous passenger who had availed a lift to travel by the truck and there was no policy cover for injury or death caused to a passenger in a goods carriage. The defence by the Insurance Company was unexceptional in the light of law laid down by the Hon'ble Supreme Court in New India Assurance Co. Ltd. vs. Asha Rani and others (2003) 2 SCC 223. The National Insurance Company which was the insurer for the truck would therefore, stand exonerated and the appeal in FAO NO. 1284 shall stand allowed. The recovery by enforcement of the award shall obtain for the claimants only against the owner of the truck. However, if the amount has already been realised by the claimants against the insurer in terms of the award, the right of recovery for the insurer shall be F.A.O.NO. 1975 OF 1994 and F.A.O.No. 1284 of 1994 3 only against the insured and not against the claimants. 4. As regards the contention of the appellant in FAO No. 1975 of 1994, it is contended that the act of the owner of the tractor in trying to uproot the tree was a commercial purpose and it amounted to breach of terms of the policy. I do not find any particular terms of the policy that enables an insurer to plead exclusion of liability of the use of the vehicle in the manner that was done by the insured. Exclusion of liability is invariably a plea that shall be founded on appropriate contractual terms and I cannot make such an exclusion by artificially incorporating the act of the owner as constituting a commercial purpose and that it was in violation of terms of the policy. It is also contended by the insurer that even apart from the National Insurance Company the owner had made the insurance policy with Oriental Insurance Company also. In my view, it is irrelevant and if there is any particular contract between the respective insurance companies to seek for contribution, it shall be worked out through such terms of contract and the claimants are not obligated to take notice of an additional insurance which the owner had taken with another insurance company as well. The appeal filed by the National Insurance Company FAO No. 1975 of 1994 is consequently, dismissed. [K.KANNAN] JUDGE 29th October, 2010 Shivani Kaushik