IS IT LEGAL TO TRAVEL AS A PASSENGER IN GOODS VEHICLE LIABILITY OF INSURER REGARDING GRATUITOUS PASSENGERS IN GOODS VEHICLE IN MOTOR VEHICLE ACCIDENT CASES

 

IS IT LEGAL TO TRAVEL AS A PASSENGER IN GOODS VEHICLE

LIABILITY OF INSURER REGARDING GRATUITOUS PASSENGERS IN GOODS VEHICLE IN MOTOR VEHICLE ACCIDENT CASES

There is no statutory requirement for insurer to cover liability in respect of passenger in goods vehicle.  Therefore, insurer not liable to indemnify owner and principle of pay and recover not applicable. This has been clearly discussed in 2020(2) TNMAC 119 in Prakash VS Ramani & another.

The brief of the case is as follows:

On 6/9/2008 at about 12 O’clock, TATA vehicle 407 bearing regn.no. TN 46 1600 owned by the first respondent came from kangeyam to Tarapattu in rash and negligent manner, met with an accident near Tarapattu water tank causing injuries to the appellant as well as 20 others.

On analyzing the oral and documentary evidences and the materials available on record, the MACT has passed a judgment and decree directing the first respondent who is the owner of the vehicle to pay to the appellant a sum of Rs. 1,20,000/ exonerating the liability of the insurance company.

Aggrieved by the quantum of compensation awarded by the tribunal and fasten liability on the first respondent, the instant appeal has been filed by the appellant seeking enhancement of compensation.

According to learned counsel for the appellant the tribunal under the impugned award has failed to consider the age and income of the appellant at the time of the accident. Though the claimant suffered multiple fractures, without proper appreciation of the evidence had reduced the disability from 60% to 45%

It was further contended that no amount has been awarded for medical expenses and attendant benefits and that the compensation awarded is meager and same need enhancement.

In support of the contention regarding liability the learned counsel for appellant relied upon a decision of the hon’ble supreme court in Shivaraj Vs Rajendra and another 2018 (2) TNMAC 273 (SC) and contended that insurance company shall be directed to pay the compensation award and to recover the same from the owner of the vehicle as per  the settled proposition in shivaraj’s case.

On contrary, the learned counsel for the second respondent submitted that the appellant has not proved that he has travelled as a cleaner in the alleged vehicle. He contended that 35 persons have travelled in the goods vehicle which is in violation of the policy. He further submitted that their liability has been absolved by the tribunal and prayed this court to exonerate from the liability.

The legal position enunciated by the hon’ble supreme court in Shivaraj Vs Rajendra and another 2018 (2) TNMAC 273 (SC) was that claimant travelled as a loader and insurance policy covered risk of 1+4 held insurer liable and high court in appeal holding that tractor insured only for agricultural purpose and not for carrying goods and presence of trailor not shown in any of the documents and also that tractor could accommodate only one person i.e., driver and therefore, since claimant travelled in tractor as a passenger in breach of policy condition, insurer is not liable to indemnify owner and conclusion arrived by the high court as unexceptional and directed the insurer to pay and recover in consonance with consistent views taken in National insurance co.ltd., v s Swaran singh & others, 2004 (1) TNMAC 104(SC): 2004(3) SCC 297 Mangala ram V Oriental insurance co.ltd., 2018 (1) TNMAC 681 (SC) Rani & others VS National insurance co.ltd., & others 2018 (2) TNMAC 278 (SC) and other related decisions which have been over ruled by 2018 (2) TNMAC 731 (DB) Bharati AXA general insurance co ltd., rep by its manager, Banagalore VS Aandi, Rajendran & another.

In the aforesaid decision, the court has held that no mandatory requirement for insurer to cover persons travelling as passenger in goods vehicle, unless such person is owner or agents of owner of goods accompanying goods in the vehicle. In the absence of any statutory requirement to cover liability in respect of passenger in goods vehicle principle of pay and recovery as statutorily recognized in section 149 (4) & (5) is not applicable ipso facto as held by the hon’ble apex court in shivaraj’s case.

Hence it is decided that 1^st respondent alone is liable to pay compensation and the insurer is not liable to pay any amount of compensation.