Gratuitous passengers in goods vehicles cannot be indemnified under insurance policies if fare payment results in a breach of conditions, reaffirming liability rests with the vehicle owner.

ORDER :

1. The issue agitated here is that which comes up frequently before this Court; on the question of ‘pay and recover’, the appellants before this Court being either the claimants or the owner of the offending vehicle, depending upon whether the amounts were paid by the insurance company or not. In the instant case, the claimants who have not received the award amounts are before this Court.

2. The Tribunal made the award after computing the compensation for the death of the husband of the first petitioner and mulcted the liability on the insurance company, brushing aside the contention that the insured vehicle is a goods vehicle, and the deceased was a travelling passenger on fare. An appeal was filed before the High Court by the insurance company which resulted in the impugned judgment, which assailed both the quantum and the liability to indemnify the insured, the latter ground raised on the breach of conditions of policy, when the goods vehicle carried passengers on fare. The quantum as awarded by the Tribunal was confirmed by the High Court. However, the pay and recovery directed by the Tribunal was set aside.

3. Mr. Mohan Raj, learned counsel for the petitioners relied on two decisions of this Court in Manager, National Insurance Company Ltd. v. Saju P. Paul and Anr. , (2013) 2 SCC 41 and Shamanna and Another Vs. Divisional Manager, Oriental. Insurance Company Limited and Others , (2018) 9 SCC 650.

4. Mr. Joy Basu, learned Senior Counsel appearing for the insurance company, however, pointed out that the earlier view regarding a third-party coverage to a goods vehicle, including the gratuitous passengers has been reversed by this Court in New India Assurance Co. Ltd. v. Asha Rani , (2003) 2 SCC 223. In the present case, there is a clear admission that the deceased had travelled in a vehicle on payment of fare.

5. We cannot but observe that the witness of the claimants, PW-2, who was also an eye-witness stated unequivocally before the Tribunal that while the deceased and others were standing at the bus stand, the offending vehicle which was a three wheeler, came to the spot and the deceased and others travelled in it as passengers after paying fare. The deposition clearly absolves the liability of the insurance company to indemnify the owner. The goods vehicle is not allowed to carry passengers, unless he is the owner of the goods carried therein or his authorised representative.

6. Now the only issue is as to whether, the insurance company should be directed to pay the amounts and then recover it from the owner, which measure this Court adopted in various cases to avoid hardship to the claimants.

7. A reading of Saju P. Paul (supra) would indicate that therein the injured/claimant was travelling in a vehicle as a spare driver, as contended by the claimant himself. The claimant was stated to be the driver of another vehicle of the owner, and a spare driver was not covered under a third-party insurance policy which along with the third-party coverage included only the driver and cleaner of the vehicle.

8. In considering the measure of pay and recover, this Court in Saju P. Paul (supra) noticed a number of decisions where such measure was employed. National Insurance Co. Ltd. v. Baljit Kaur and Others , (2004) 2 SCC 1 was a case in which the Tribunal and the High Court proceeded in terms of the decisions of this Court in New India Assurance Company v. Satpal Singh and Others , (2000) 1 SCC 237 which was overruled in Asha Rani (supra). Since the Tribunal and the High Court had allowed the compensation based on Satpal Singh (supra), the measure of pay and recover was a