IMPORTANT POINT
The court established that a claimant traveling with goods in a commercial vehicle is covered under the insurance policy, and the burden of proof lies with the insurer to demonstrate otherwise.

JUDGMENT :

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant – Insurance Company being aggrieved and dissatisfied with the judgment and award dated 05.05.2009 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.1130 of 2005.

2. Brief facts of the case are as under :

2.1 The brief fact of the present appeal is such that on 05.09.2005, the claimant was going to village Gadhda in Tempo No.GJ-4-V-3769 along with gunny begs, at that time opponent No.1 was driving the said Tempo in rash and negligent manner. When they reached within limits of Gadhda Police Station, the opponent No.1 swerved the tempo driven by him and collided with oncoming Tempo No.GI-1X-5765 of opponent No.3. As a result, the accident took place and claimant Bhotabhai Bharwad received severe injuries. In order to get compensation, the claimant has filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.15,00,000/- along with interest and cost. The learned Tribunal vide impugned judgment and award dated 05.05.2009 has granted compensation to the tune of Rs.7,37,800/- against driver, owner and insurer of Tempo No.GJ-4-V-3769 in which he was travelling. Hence, being aggrieved the present appeal.

3. Heard learned advocate Mr.Vibhuti Nanavati appearing for the appellant – Insurance Company and learned advocate Mr.Hiren Modi appearing for the claimant.

4. Learned advocate Mr.Vibhuti Nanavati submits that initially the appeal was filed on two grounds. Firstly that the driver of the offending vehicle was not holding appropriate licence to drive the offending vehicle as the endorsement to ride the transport vehicle was missing from the licence of the driver of the offending vehicle. However, in view of judgment of Mukund Dewangan vs. Oriental Insurance Company Limited - (2017) 14 SCC 663, which was later on approved in case of Bajaj Alliance General Insurance Company Limited vs Rambha Devi and others – 2024 (0) INSC 840, the Insurance Company is not pressing the said ground.

4.1 The second ground canvassed by learned advocate Mr.Nanavati is that at the time of road accident, the claimant was travelling in the goods carriage vehicle. This vehicle is not meant for carrying passenger. Hence, carrying claimant in goods carriage vehicle by its driver is breach of terms and conditions of the policy leading to exoneration of the Insurance Company. This issue is specifically raised in the written statement but has not been properly examined by the learned Tribunal. He would further submit that sitting capacity of the errant vehicle was one. The owner himself was riding the errant vehicle and therefore he had knowledge that in the goods vehicle he cannot permit any person to sit yet the owner of the vehicle has permitted more than one person to sit in the errant vehicle. Therefore, the act of the owner cum driver of the errant vehicle is a breach of the terms and conditions of the policy.

4.2 Learned advocate Mr.Nanavati referred to the judgment of Hon’ble Apex Court in case of United India Insurance Company Limited vs. Suresh K.K. - 2008 (12) SCC 657, to contend that the term “any person” under Section 147(1) of the Motor Vehicle Act, 1988 does not include any gratuitous passenger. He would further submit that in the present case the claimant seated in the vehicle as a gratuitous passenger as such has breached the terms and conditions of the policy and since the owner is guilty of breach of the terms and conditions of the policy, the Insurance Company cannot be held liable to pay the compensation for and on behalf of the owner. Learned advocate Mr.Nanavati while arguing this aspect, also taken this Court through the pleadings and the evidence on record and submitted that defense of the gratuitous passenger is established even from the pleading and evidence produced by the claimant. Therefore, he submits that learned Tribunal has commi