- (1.) AGGRIEVED by the award dated 20.08.2006 passed by the Special Judge SC/ST (Atrocities Cases) and Motor Accident Claims Tribunal, Kota (Rajasthan) (hereinafter referred to as "the learned Judge"), whereby the learned Judge has exonerated the Insurance company, respondent No.2, from its liability, the appellants, the owner and the driver, have approached this Court.
(2.) THE brief facts of the case are that on 22.02.2004, Madholal and Indra Singh were travelling in a mini-truck, bearing registration No.RJ-20G-3294, while carrying their bags full of mustered. THE said mini-truck was being driven by Jufikar, the appellant No.2. According to Madholal and Indra Singh, Jufikar was driving the said mini-truck in a rash and negligent manner. Consequently, the mini-truck hit a tree and turned turtle. THErefore, both Madholal and Indra Singh sustained injuries. Hence, both of them filed two separate claim petitions before the learned Tribunal. Although, the Insurance Company (respondent No.2 before this Court) filed their reply and contested the claim petition, yet the appellants neither filed their reply, nor contested the claim petition. Thus, ex-parte order was passed against them. In order to substantiate their case, both the injured-claimants examined themselves as witnesses and submitted twenty-nine documents. THE Insurance Company, on its part, examined a single witness. But, it did not submit any document. After going through the oral and documentary evidence, the learned Judge while exonerating the Insurance Company, awarded a compensation of Rs.53,445/- in favour of the claimants. Hence, this appeal on behalf of the owner and driver before this Court. Mr. Govind Choudhary, the learned counsel for the appellants, has vehemently contended that according to Madholal, he was the owner of thirty-five bags of mustered bags. He was travelling in the mini-truck in order to safeguard the loading and unloading of his goods. Thus, he was travelling in the capacity of the owner of the goods. Similarly, according to Indra Singh, he was travelling in the mini-truck as an employee of Madholal. Hence, he was travelling in the capacity of authorized representative of the owner of the goods. According to the learned counsel, in case any injury is caused either to the owner of the goods, or his authorized representative while traveling in the vehicle, the Insurance Company is liable for the payment of the compensation. In order to buttress this contention, the learned counsel has relied upon Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"). On the other hand, Mr. Chetan Jain and Mr. Lokendra Sigh, the learned counsel for the Insurance Company, have relied upon the case of National Insurance Company Ltd. V/s. Bommithi Subbhayamma & Ors. [2005 (2) T.A.C. 1 (S.C.)] in order to contend that in case a gratuitous passenger travelling in a goods vehicle, is injured or died, then in such a case, the Insurance Company is not liable to pay the compensation amount. According to both the injured persons, they were merely travelling as gratuitous passengers on the mini truck, which is a goods vehicle. Heard the learned counsel for the parties, perused the award and considered the case law cited at the Bar. It is, indeed, a settled principle that in case a gratuitous passenger travels in a goods vehicle, and either sustains injuries, dies, in an accident, the Insurance Company would not be liable for the payment of the compensation. However, in the present case, neither of the injured persons, Madholal and Indra Singh, were travelling as gratuitous passengers. In fact, both Madholal and Indra Singh, have clearly stated in their testimonies that Madholal was the owner of the mustered bags. Therefore, he was travelling in the mini- truck in order to ensure the safe delivery of the bags. Similarly, Indra Singh is an authorized representative of Madholal. Therefore, neither of these two persons were traveling in the capacity of gratuitous passengers.
(3.) SECTION 147(1)(b)(i) of the Act clearly lays down that the Insurance Company would be liable against any liability which may be incurred by the insured "in respect of the death or of bodily injury to any person including the owner of the goods or his authorized representative...." (Emphasis added). Since, both Madholal and Indra Singh were traveling in the capacity of owner of the goods and of authorized representative, obviously, their cases are covered under SECTION 147(1)(b)(i) of the Act. The learned Tribunal has ignored the testimonies of both the claimants as well as the provisions of law. Therefore, the award is clearly unsustainable. The case of Bommithi Subbhayamma (supra) does not come to the rescue of the Insurance Company. For, that case deals with gratuitous passengers who were traveling in a lorry. Therefore, that case is distinguishable from the present one on the basis of the factual matrix. ;