- (1.) THIS appeal is filed by the insurer challenging its liability to meet the claim for compensation. The respondents 1 to 4 are the claimants who had sought compensation on account of the death of the husband of the first respondent, while travelling in a lorry belonging to the fifth respondent. It was claimed that the deceased had purchased agricultural implements and had boarded the lorry along with the same on the Mumbai - Hyderabad road to reach his village. The vehicle having met with an accident along the way, when the driver is said to have lost control and the vehicle having turned turtle - the said passenger had died on the spot. The Tribunal having held that there was negligence on the part of the driver and since the risk to the occupants of the vehicle was covered has held the appellant liable to pay the compensation awarded. It is in this background that the appellant is before this court.
(2.) THE counsel for the appellant contends that the vehicle in question was a goods vehicle which was proceeding from Mumbai to hyderabad and was carrying goods. The deceased had boarded the vehicle along the highway to get to his village. He had neither hired the lorry nor was accompanying the goods carried in the vehicle. Though it is claimed that the deceased was carrying agricultural implements purchased by him, in the vehicle, there is no indication in the documents pertaining to the accident regarding the same. Even if the deceased was carrying any such equipment, he was yet an unauthorized passenger in a goods vehicle and the risk to such a passenger was not covered under the policy. The claim that the deceased had paid fare to be carried in the vehicle, as affirmed by the driver of the vehicle, would indicate he was being carried for reward and hence, not covered under the policy. The counsel would therefore claim that the liability is unfairly fastened on the appellant.
(3.) PER contra the counsel for the insured would submit that the accident and the death of the victim is admitted. The accident having occurred on account of the possible negligence of the driver is also not in serious dispute. The counsel would submit that the insurer cannot shirk its liability, as even the risk in respect of a passenger such as the deceased in the present case on hand, is covered in terms of the policy. While elaborating in this regard, the counsel would submit that the insured has paid additional premium to cover the risk in respect of non fare paying passengers, in terms Condition No. IMT 13 and condition No. IMT 14. The said conditions read as follows: "imt 13 : Legal Liability to Non-Fare paying Passengers other than Statutory Liability except the Fatal Accidents Act, 1855 (Commercial Vehicles only)In consideration of the payment of an additional premium of Rs. . . . . and notwithstanding anything to the contrary contained in section II-I (b) and (c) it is hereby understood and agreed that the company will indemnify the Insured against his legal liability other than liability under the Statue (except the fatal Accidents Act 1855) in respect of death of or bodily injury to :- (i) Any employee of the within named insured who is not a workman within the meaning of the Workmen's Compensation Act prior to the date of this endorsement and not being carried for hire or reward. (ii) Any other person not being carried for hire or reward provided that the person is (a) The owner or representative of the owner of the goods (b) Charterer or representative of the charterer of the truck (c) Any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any Motor Vehicle described in the Schedule of the Policy. Subject otherwise to the terms exceptions conditions and limitation of this Policy. "imt14: Legal Liability to Non-Fare paying Passengers who are not employees of the Insured. (Commercial Vehicles only)In consideration of the payment of an additional premium of Rs. . . . . and not withstanding anything to the contrary contained in Section II-1 (c) it is hereby understood and agreed that the company will indemnify the insured against his legal liability other than liability under statute (except Fatal Accident act, 1855) in respect of death of or bodily injury to any person not being an employee of the insured and not carried for hire or reward provided that the person is (a) The owner or representative of the owner of the goods. (b) Charterer or representative of the Charterer of the truck (c) Any other person directly connected with the journey in one form or the other person being carried in or upon or entering or mounting or alighting from the Motor Vehicle described in the Schedule of this policy. Subject otherwise to the terms expectations conditions and limitations of this policy". ;