(Prayer: The Civil Miscellaneous Appeal is preferred under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 29.03.2012 passed in M.C.O.P. No.439 of 2010 on the file of the learned Fast Track Judge, Fast Track Court-cum-Motor Accidents Claims Tribunal, Namakkal.)
1. The present Civil Miscellaneous Appeal on hand is preferred against the judgment and decree dated 29.03.2012 passed in M.C.O.P. No.439 of 2010 on the file of the learned Fast Track Judge, Fast Track Court-cum-Motor Accidents Claims Tribunal, Namakkal.
2. The accident occurred on 11.12.2009 at about 06.00 P.M., at Arjuna Ghat, Yeotmal Police Station limit, Maharashtra. The Maharashtra State Yeotmal Police registered a case in Crime No.146 of 2009 under Sections 279, 338 and 304(A) of IPC.
3. The first respondents-claimant sustained multiple grievous injuries over the body and he had taken treatment and at the time of accident, the first respondent-claimant was aged about 60 years. But in the claim petition, it is stated that he was travelling in the lorry and he was working as a Rig Unit Cookman. The name of the employer has been stated as Sakthi Bore Well Company, Velagoundampatti, Namakkal and the claim petition was filed.
4. The Tribunal adjudicated the issues and granted a total compensation of Rs.2,53,100/-.
5. The learned counsel appearing on behalf of the appellant- Insurance Company disputed the award of the Tribunal, mainly on the ground that the first respondent-claimant is a gratuitous passenger and there is no policy coverage for him. No premium has been paid in respect of such Cookman travelling in Rig Unit Lorry and therefore, he was an unauthorised passenger in the lorry and accordingly, the liability cannot be fastened on the appellant-Insurance Company.
6. It is contended that the appellant-Insurance Company beyond any pale of doubt establish the fact that there is no policy coverage and further established that the Cookman is not covered under the Insurance Policy. In spite of all these specific evidences on record, the Tribunal has proceeded on the ground that there is a coverage for three persons and therefore, the first respondent-claimant is entitled for compensation.
7. This Court is of the considered opinion that number of persons covered in a lorry or goods vehicle is immaterial. The status and position of the persons, who all are travelling in a vehicle is of paramount importance. If driver, particularly in an an Insurance Policy, has not filed any claim petition, then the person who is travelling in the vehicle alone entitled for compensation and no compensation can be granted to other persons merely on the ground that the driver has not filed any claim petition.
8. It is not as if the Tribunal can award compensation even in the absence of coverage in insurance policy. Insurance Policy is a contract and statutory liability is also provided under the Motor Vehicles Act. Under these circumstances, there must be a policy coverage and in the absence of policy coverage, the owner of the vehicle must be liable to pay compensation. In the cases where there is no policy coverage, liability cannot be fixed on the Insurance Company. Insurance Company is governed under the terms and conditions of the policy and the same are binding on the parties. Therefore, the policy coverage is an important factor to be ascertained. If the goods covered persons under the policy have not filed a claim petition, compensation can be granted by fixing the liability on the Insurance Company in respect of unauthorised persons in a vehicle. The status of the claimant is also to be ascertained whether he is covered under the policy or not.
9. In the present case, even as per the claim petition, the claimant has stated that he is Cookman, but no premium has been paid by the Cookman. In the event of paying premium being paid by a Cookman, then there is a coverage and the Insurance Company is liable. In the present case, the premium has been paid for 3 to 5 persons in the lorry and the Cookman is not covered. The said position was clearly deposed by the Insurance Company witness (RW-1) and the said policy copy is also marked as Ex.R-1. The said position is recorded in paragraph-8 of the judgment of the Tribunal, which reads as under:-
10. Though the Tribunal has recorded the deposition of RW- 1, in clear terms, the Tribunal arrived a conclusion that in view of the fact that three persons are covered under the policy and the other persons have not made any claim and therefore, the compensation is to be awarded in favour of the first respondent-claimant.
11. No alternate liability can be fixed and in fact, covered persons under the policy alone are entitled to claim compensation under the Motor Vehicles Act. If a particular traveller in a lorry is not covered under the Insurance Policy, then the liability cannot be fixed on the Insurance Company. The liability is to be fixed on the owner of the vehicle, who met with an accident.
12. In the present case, admittedly the first respondentclaimant is a Cookman and there is no coverage of Insurance Policy for the Cookman. As per coverage of Insurance Policy, the driver, cleaner and owner of the vehicle alone are covered. The first respondent-claimant is not coming under any of this category and therefore, the Tribunal cannot extend the terms and conditions of the policy, so as to extend the liability on the Insurance Company. The extension of the terms and conditions of the policy between the parties are impermissible. The agreed terms and conditions cannot be altered or extended by the Tribunal for the purpose of fixing the liability. Liability is to be fixed strictly as agreed in the policy and therefore, it is not as if the Tribunal can extend the scope of the terms and conditions where the premium has paid only in respect of the driver, cleaner and owner of the goods.
13. This being the principles to be followed, the Tribunal has committed an error in fixing the liability on the Insurance Company. However, the owner of the goods is liable to pay compensation to the first respondent-claimant. Accordingly, this Court is of the considered opinion that the second respondent, who is the owner of the lorry, liable to pay compensation to the first respondent-claimant. Thus, the appellant- Insurance Company is exonerated from the liability.
14. Accordingly, the judgment and decree dated 29.03.2012 passed in M.C.O.P. No.439 of 2010 on the file of the learned Fast Track Judge, Fast Track Court-cum-Motor Accidents Claims Tribunal, Namakkal stands set aside as far as the appellant-United India Insurance Company is concerned. However, the second respondent owner is held liable and the second respondent is directed
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to deposit entire award amount with accrued interest, within a period of twelve weeks from the date of receipt of a copy of this judgment and on such deposit being made, the first respondentclaimant is permitted to withdraw the entire award amount by filing an appropriate application before the Tribunal. 15. As far as the appellant-Insurance Company is concerned, they are exonerated from the liability. Thus, the appellant-Insurance Company is permitted to withdraw the deposited amount, if any, along with accrued interest, by filing appropriate applications before the Tribunal. 16. Consequently, C.M.A.No.1354 of 2019 stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.