1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 194 of 1995 ANIL KUMAR V/S SMT. MANI & ORS. Mr. RAJESH PANWAR, for the appellant / petitioner Mr. YASHWANT MEHTA & Mr. DK PARIHAR, for the respondent Date of Order : 21.1.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- By this appeal, the owner appellant seeks to challenge the award of the Motor Accidents Claims Tribunal, Jalore dt. 3.12.1994, passed in Claim No. 105/92, decreeing the same for a sum of Rs. 35,000/-, along with interest. The facts are, that in the night intervening 12th and 13th June, 1992, the claimant Smt. Mani, along with her other relations boarded the Jeep No. RRQ-3048, for going to Mount Abu. The jeep was being driven by defendant no.2. It is alleged that at about 12.30 in the night, when the jeep reached near village Sakad, a sick truck was already lying, and in order to avoid collision with that truck, the driver swerved the jeep, but could not control it, and consequently the jeep dashed against a Khejri tree, resulting into passengers sustaining injuries. The claimant 2 had claimed a total compensation of Rs. 21 lacs. The owner and insurer filed separate reply, admitting the happening of the accident. However, negligence was denied, and it was pleaded, that the challan was filed in collusion with the claimant. Then, the quantum was also denied, mainly income of the claimant was denied, and it was also pleaded, that injury claimed was not the result of the negligence on the part of the driver. Insurer disowned its liability by contending, that the vehicle was a private vehicle, while it was being used for carrying passengers for hire or reward, and therefore, the insurer is not liable. The learned Tribunal decided issue no.1 relating to negligence in favour of the claimant, and also found that, injury report of the claimant is Ex.7, permanent disability certificate is Ex.8, which showed that the claimant suffered injury on right arm, and pelvic bone in pubic area, and from X-Ray report it is clear that there is fracture of pubic bone, and there is dislocation of sacroiliac joint. Then, the evidence of Dr. O.P. Dhawal, A.W.2 has been considered, who had deposed, that there is a substantial shortening of leg, to the extent of 4 ½ inch. Likewise, the movement of the leg is also substantially impaired, as it can move only upto 5 degree, while there is 3 a normal movement of 45 to 50 degree, and every time she has to keep the knee bend to 30 degree, as it cannot straighten further. Thus, the disability of the right leg has been assessed at 77%. The learned Tribunal then deciding the issue no. 2 found, that the claimant was carrying on the business of selling milk, and was undertaking agricultural operation, while now she cannot do anything. However, considering the income, disability, and medical expenditure, a total compensation of Rs. 35,000/- has been assessed. Then, deciding issue no.3 it was found, that even the claimant herself has deposed, that she was traveling in the vehicle as a passenger for hire or reward, and since the accident occurred before the jeep reaching destination, therefore, the actual payment of fare was not made. Thus, it was found that the vehicle was registered as a private vehicle, but was being used for carrying passengers for hire or reward, and therefore, the insurer was exonerated. Arguing the appeal, it was contended, that it is clear on record, that no fare was paid, i.e. no hire or reward was at all received for carrying the said passenger, and therefore, the insurance company could not have been exonerated, and thus the impugned award is liable to be set aside. I have considered the submissions. 4 In my view, firstly on account of the mere fact, that payment of fare was not made, or not shown to have been made, is not of much consequence, as the injured had boarded the vehicle in the capacity of the passenger for hire or reward. That apart, now the law in this regard is laid down by Hon'ble the Supreme Court, in United India Insurance Co. Ltd. Vs. Tilak Singh, reported in JT 2006(4) SC-280, while dealing with the case of pillion rider, a gratuitous passenger, on a passenger vehicle, wherein it was held, that Section 95, which provides requirement of obtaining insurance cover in respect of death or bodily injury to any person, including owner of the goods, or authorised representative, carried in the vehicle, or damage to any property of a third party, caused by or arising out of the use of the vehicle in a public place, does not attract the liability of insurer. The earlier judgment of Hon’ble the Supreme Court in New India Assurance Company Vs. Asha Rani, reported in JT 2002(10) SC-161, was followed, holding, that though that judgment 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. Likewise in line with the judgment in Asha Rani's case, are the subsequent judgments of Hon'ble the Supreme Court, in Smt. Thokchom Ongbi Sangeeta Vs. Oriental Insurance Co. Ltd. reported in JT 2007(12) SC-279, and National Insurance Co. 5 Ltd. Vs. Cholleti Bharatamma reported in JT 2007(12)SC-319, wherein also same view was taken with respect to passengers traveling in goods vehicle, holding the insurer to be not liable. Consequently, in view of the judgment of Hon'ble the Supreme Court in Tilak Singh's case, even if it is assumed, that the claimant was a mere passenger, obviously gratuitous passenger in a private vehicle, still the insurance company could not be held liable for the death or injury suffered by such gratuitous passenger in a private vehicle, and therefore, it has rightly been exonerated. Learned counsel for the appellant then submitted, that the rate of interest awarded is excessive. In my view, may be that in view of the trend of the judgment of Hon'ble the Supreme Court now, the rate of interest awarded may appear to be excessive, but then, in view of the trend, as it was prevailing, when the award was made, it cannot be said to be excessive. That apart, looking to the nature of injuries, and the quantum awarded, more so in view of the fact, that there is no cross objection for enhancement of the compensation by the claimant, I do not think it appropriate, to make any order for reducing rate of interest, which may have the effect of reducing the award any more. 6 The appeal thus has no force, and the same is dismissed. The parties are left to bear their own costs. ( N P GUPTA ),J. /sushil/