The High Court of Jammu and Kashmir and Ladakh recently ruled that in a claim concerning the death or disability of a person traveling by a goods vehicle/cargo carrier whether gratuitously or not gratuitously by the application of the Motor Vehicle Act Act, attach liability to the insurer, with the exception of the owner of the load/goods traveling in the vehicle having such load/goods.
A bench of Judge M. A. Chaudhary was hearing an appeal in which the appellant insurance company challenged the award made by scholar MACT Srinagar in a motion for claim., whereby the amount of Rs 3,27,864/- with interest @ 6% PA from the date institution of the Claim, had been awarded as compensation in favor of plaintiffs/respondents 1 to 5 payable by the appellant company.
The appellants in their appeal challenge the award primarily on the ground that the appellant company had been made responsible for paying compensation to the plaintiffs, although it was not required to pay the same as the deceased, for who was awarded the compensation was the free passenger traveling in the oil tanker belonging to respondents 6 and 7 and insured with the appellant company. The appellants further argued that the offending vehicle was not a passenger vehicle and that the deceased who was claimed to be a police officer traveled by said vehicle as a free passenger and that the insurance company was not no obligation to compensate the deceased.
The theoretical question that had to be decided before the Appeal Panel was whether the appellant company, as insurer, was not required to indemnify the insured owners of the offending vehicle in order to pay compensation to the claimants.
In deciding the case, the bench relied on the judgment of the Supreme Court in National Insurance Co. Ltd. Vs. Baljit Kaur & Ors., reported as (2004) where SC observed,
“We are therefore of the view that the interests of justice will be served if the appellant is here ordered to satisfy the amount awarded in favor of the plaintiff, if not already satisfied and collect it from the vehicle owner. For the purposes of such recovery, it would not be necessary for the insurer to bring a separate action, but it may bring proceedings in the enforcement court as if the dispute between the insurer and the owner had been of a decision before the Court and the question is decided against the owner and in favor of the insurer”.
Deciding on the case, the bench noted that the Tribunal had erred in deciding that, in view of the fact that the deceased was a non-complimentary passenger upon payment of the fare, the insurer was liable to indemnify the insured . The liability of the insurer cannot be there even if the deceased would have been a non-free passenger in a transport vehicle as decided by the Court in view of the law enacted by Hon’ble Apex Court in all the judgments in the matter. , th bench underlined.
Applying this cemented position of law, the court observed that the impugned judgment should be varied to the extent of the liability of the appellant-insurer and, accordingly, the impugned judgment is ordered to be varied finding that the appellant -insurer was not required to indemnify the liability of the insured-owners of the offending vehicle.
In this context, it is ordered that the amount awarded together with the simple interest @ 6% PA be satisfied by the appellant-insurer payable to the plaintiffs and that the appellant has the right of recovery from the owners of the vehicle at fault – respondents 6 & 7, according to law, concluded the bench.
Case Title: New India Assurance Co v Mehra Begum
Citation: 2022 LiveLaw (JKL) 129
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