The court clarified that insurance companies cannot evade liability if passengers are not gratuitous, emphasizing the importance of evidence presented in court over FIR details.

JUDGMENT :

J.C. Doshi, J.

1. The present First Appeals, under Section 173 of Motor Vehicles Act, 1988, are preferred by the appellants – original claimants being aggrieved and dissatisfied with the judgment and award dated 6.2.2012 passed by the Motor Accident Claims Tribunal, Narmada in Motor Accident Claim Petition No.113 of 2011 and 114 of 2011, by which the Tribunal has awarded compensation of Rs.1,54,500/- and Rs.75,300/- respectively with 9% interest to the claimants from the date of filing of claim petition till its realization, holding original opponent Nos.1 and 2 liable, jointly and severally. However, while awarding the award, the learned Tribunal has exonerated the opponent – Oriental Insurance Company.

2. Briefly stated that on 10/06/2011 a) about 12.00 O'clock at noon the parents of minor Akshay were traveling in Jeep No. G.J-1-BP-1177 (for short “jeep”) and were going to village Vaghas and at that time near village Ratanpura the opponent no. 1 applied brake and due to a heavy jerk, minor Akshay who was sitting in the lap of his mother Kantaben was fallen down on the road and died. That applicant Kantaben also received grievous injuries. That at the time of accident minor Akshay was 3 years old. That minor Akshay was only son of the applicants and on account of his sudden death the applicants have to suffer loss of his love, affection and company beside future income. It is also their say that they had to incur expenses for deceased funeral ceremony. Hence, the applicants have claimed Rs. 3,00,000/- by way of compensation from opponents u/s 163-A of M.V. Act. However, the learned Tribunal has passed the impugned judgment and award as stated above.

3. Heard learned advocate Mr. DN Pandya for the appellants and learned advocate Ms. Karuna Rahevar for the respondent No.3. Though served, none present for respondent Nos.1 and 2.

4. Learned advocate for the appellants would submit that the learned Tribunal has committed serious error in exonerating the insurance company from paying liability of compensation. He would further submit that the impugned judgment and award is passed in ignorance of the evidence on record. He would further submit that the learned Tribunal on appreciating the evidence on record swayed away by misinterpreting various judgments and committed gross error in exonerating the insurance company. He would further submit that in none of the evidence, it comes on record that the claimant and minor Akshay were travelling in the jeep as gratuitous passenger or fare paying passenger. He would further submit that even the owner of the jeep deposed before the learned Tribunal that he has given lift to Kantaben and minor Akshay. In view of this deposition before the learned Tribunal, the learned Tribunal committed serious error in not the contentions put-forth by the insurance company to exonerate it. He would further submit that the learned Tribunal has even drawn compensation on the lesser side, and therefore, the compensation is required to be enhanced. He would further submit that the learned Tribunal has taken income of the deceased minor to Rs.15000/- notional, which is required to be enhanced. Therefore, he prays to modify the judgment and award suitably.

5. As against this, learned advocate Ms. Rahevar for the respondent No.3 while supporting the impugned judgment and award would submit that the deceased Akshay, at the time of road accident, was sitting on the lap of Kantaben – his mother and both have fallen from the jeep, as the jeep driver suddenly applied break and in that incident, minor Akshay died and claimant Kantaben received injuries. But, evidence suggests that both of them were not known to the driver and owner of the jeep, which indicates that they were travelling in a jeep as a gratuitous passenger and thus, the learned Tribunal has rightly assessed this issue to exonerate the insurance company. She would further submit that the offending vehicle jeep was sold to some third party, but it