Insurer cannot claim exemption in absence of material to show that passenger was a gratuitous

NEW INDIA ASSURANCE CO. LTD. V. KARUNA BARMAN AND 2 ORS.
CASE NO. : MACAPP./84/2013
THE GUWAHATI HIGH COURT

THE GUWAHATI HIGH COURT UPHELD the order of the Motor Accidents Claims Tribunal awarding compensation to a person by holding him a "non-gratuitous" passenger.

BRIEF FACTS

1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (as amended) against the Judgment and Award dated 02.02.2006 passed by the MACT, Kamrup, Guwahati in MAC Case No. 765/2004.

SECTION 173 IN THE MOTOR VEHICLES ACT, 1988

Appeals

(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

2. On 06.03.2004, while the claimant/injured was travelling in a truck bearing registration number AMK-6328, the driver of the vehicle lost control and knocked one stationary vehicle and one electric pole. The claimant sustained serious injuries on his left upper limb. Ultimately, the left upper limb of the injured had to be amputated. The injured filed a claim case for seeking compensation.

3. The appellant/Insurance Company contested the claim case before the Tribunal by filing written statement.

4. The claimant examined three witnesses.

5. The appellant/insurance company examined two witnesses.

6. Finally, on conclusion of hearing, the Tribunal awarded a sum of Rs.3,31,000/- as compensation.

7. The only ground of appeal is that the claimant was a gratuitous passenger and therefore he is not entitled to get any compensation.

8. The Court have considered the submissions made by the learned counsels for both the sides.

9. The Motor Vehicles Act, 1988 does not define the expression ‘gratuitous passenger’. However, Section 147(1)(b)(ii) of the Act expressly exempts the case of a ‘gratuitous passenger’ in a goods vehicle in a public place. But gratuitous passenger would mean one who has taken lift.

SECTION 147(1)(b)(ii) OF THE MOTOR VEHICLES ACT, 1988

Requirements of policies and limits of liability. —

(b) (ii) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required—

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation

For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

10. The claimant pleaded that he was the second driver of the vehicle and was sitting inside the driver’s cabin while the other driver Khatarat Ali was driving the vehicle.

11. There is no evidence in this case that the claimant was a gratuitous passenger.

12. The appellant/insurance company realized premium for five employees. The insurance policy i.e. Exhibit-B does not stipulate the nature of employment of the employees covered by the policy. Therefore, the claimant is not a gratuitous passenger.

13. For the aforesaid reasons, the court find that the appeal is devoid of merit and stands dismissed accordingly.

CONCLUSION

The court rightly pointed out that a "Gratuitous Passenger" is that person who has taken lift in the vehicle. Since insurance company has not material substance to prove that the person injured is a Gratuitous Passenger and hence cannot claim repudiate the claim of the passenger in the vehicle at the time of accident.