In which circumstances, Insurer is liable to pay compensation when injured claimant or deceased was travelling in the goods vehicle:-

         It is the duty of the insurer to prove that injured claimant or deceased was travelling in the goods vehicle and, therefore, it is not liable to pay the amount of compensation, unless, same has been proved, insurer is liable to pay amount of compensation.

 

         To decide whether, injured claimant or deceased was travelling in the goods vehicle or not, Panchnama of scene of accident plays very vital role. If, after reading Panchnama, it appears that there were goods loaded in the vehicle or were found lying at the sight of accident then it can be presumed that vehicle was used for carrying goods. However, there are some points, which are required to be considered before fastening liability on insurer, which are:­

               Whether injured claimant or deceased was travelling in the cabin of the goods vehicle or not. If, injured claimant or deceased was travelling in the cabin of the goods, insurer is liable otherwise not. Reference be made to ratio laid down by Hon'ble Apex Court in the case of National Insurance Co. Ltd. v/s Cholleti Bharatamma, reported in AIR 2008 SC 484.

               Hon'ble Gujarat High Court in the case of U.I.I.Com. V/s Minor Mahesh Kanubhai, passed in First Appeal No.710 of 2007, dated 7^th April, 2014 has held that when it is proved that the victims of the motor accident were gratuitous passenger in the offending vehicle, order of 'Pay and Recover' can passed.

               In the Manuara Khatun vs. Rajesh Kr. Singh, reported in AIR 2017 SC 1204, Hon'ble Supreme Court has held that the deceased who was travelling in the goods vehicle can be termed

as a gratuitous passenger and not covered under the insurance policy and, therefore, Insurance Company is exonerated, but directed to pay the amount of compensation to claimants with the right to recover the same from the insured. Similar view has been taken in the case of Lal Singh Marabi v/s N.I. Com., reported in 2017 (5) SCC 82.

 

          Whether the insurer is liable in a case where the injured claimant or deceased was travelling in the goods vehicle as the labourer of the owner of the goods or the hirer:-

1.    If it is proved that injured claimant or deceased was traveling in the goods vehicle as the labourer of the owner of the goods then insurer is liable to pay amount of compensation, even if owner of the vehicle has taken the Statutory Policy. But insurer is not liable in the cases where injured claimant or deceased was travelling in the goods vehicle as the labourer of the hirer and vehicle is covered with the Act Only Policy. Reference be made to the ratio laid down in the case of Sanjeev Kumar Samrat v/s National Insurance Co. Ltd, reported in AIR 2013 SCW 301, wherein it is held that:­

“the Act policy does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the Workmen's Compensation Act, 1923 it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorized agent in place of the owner of goods, and claims

to be an employee of the owner of goods, cannot be covered by the statutory policy”.

 

         Whether insurer is liable in the case where injured claimant or deceased was travelling in the goods vehicle as the owner or representative of the goods:-

 

                                    If it is proved that the injured claimant or deceased was travelling in the goods vehicle as the owner or representative of the goods, insurer is liable to pay amount of compensation otherwise not. Reference be made to ratio laid own in the case of New India Insurance Company v/s Darshana Devi, reported in AIR 2008 (Supp) SC 1639.

         Whether injured claimant or deceased was travelling in Tractor-/trolley is entitled to get amount of compensation:-

                                    Normally, Tractor­trailer/trolley is used for agricultural purpose and if it found that same was used for agricultural purpose and same is covered by the 'Farmer Comprehensive Policy' or the 'Farmer Package Policy', in such situation, insurer is liable to pay compensation. If the above referred two conditions are not fulfilled, insurer cannot be held responsible to pay amount of compensation.

                                    It is also to be noted that in the Annexure of Indian Motor Tariff, list of Miscellaneous and Special types of vehicles is given. As per the said list tractors can be used for Agricultural, and if, Trolley is attached to such Tractor, same may be used for carrying goods. As per the said list there is one another kind of Tractor, which is 'Traction Engine Tractor'. If is found that tractor is not used for the purpose of agricultural work and if it

used for carrying goods, such tractor­trolley must be insured for such purpose and if is not insured as such, insurer is not liable to pay any amount of compensation.

                                   It is to be noted that when insurance policy contains 'Avoidance Clause', then in such situation, insurer is liable to pay compensation under the principle of 'Pay and Recover'. Reference may be made to the ratio laid down in the case of New India Assurance Co. Ltd. v. Vimal Devi, reported in 2010 ACJ 2878 and ratio laid down by the Hon'ble Full Bench of Hon'ble Gujarat High Court in the case of Shantaben Vankar v/s Yakubbhai Patel, reported in 2012 ACJ 2715.

     The issue as to whether Tribunal has jurisdiction to pass an order of 'Pay and Recover' was referred to the Full Bench of Hon'ble Apex Court. Reference be made to judgment delivered in the case of National Insurance com. Ltd. v/s Parvathneni, reported in 2009 (3) GLH 377 (SC).

Hon'ble Apex Court has dismissed the said SLP being No.22444 of 2009 on 17/09/2013 (from the judgment and order dated 12/12/2008 in MACMA No.1211 of 2007 of the High Court of A.P. at Hyderabadon 18/09/2013).