Insurance companies are not liable for claims involving unauthorized passengers in goods vehicles, as established by precedent.

ORDER :

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988 is preferred by the appellant – original claimant being aggrieved and dissatisfied with the judgment and award dated 21.4.2009 passed by the Motor Accident Claims Tribunal, Rajkot in Motor Accident Claim Petition No.1511 of 1999.

2. The brief fact of the present appeal is such that on dated 27/4/199, the applicants were traveling on Rickshaw No.GJ-11V-571, at that time Driver of Rickshaw had driven the vehicle in rash and negligent manner without observing traffic rules, with excessive speed and caused accident and as a result, the appellant sustained serious injures and therefore, the appellant claimant has filed claim petition claiming compensation of Rs.4 lakh and the learned Tribunal vide its impugned judgment and award, awarded Rs.1,03,2000/- recovered from the opponent Nos.1 and 2 jointly and severally.

3. Learned advocate for the appellant would submit that as per the pleadings and as per the evidence on record, the claimant was travelling in the errant vehicle as unauthorized passengers. He would further submit that this contention is raised in the pleadings as well as in the oral evidence by the claimant and have not been properly rebutted by the insurance company and therefore, the learned Tribunal erred in exonerating the insurance company on the belief that the claimant was travelling as unauthorized passengers in the goods vehicle. Upon above submission, he prays to allow this appeal by fastening liability upon the insurance company as well as to pay the compensation.

4. Per contra, learned advocate Mr. Vibhuti Nanavati would submit that even from the evidence of the claimant, it is proved that the claimant was travelling in a goods vehicle. He would further submit that the learned Tribunal has rightly assessed this issue in para 14 of the impugned judgment and award and therefore, the appeal deserves no consideration. On above submissions, learned advocate Mr. Nanavati prays to dismiss the First Appeal.

5. Heard learned advocates for respective parties and minutely paid consideration to the rival submissions as well as perused the R & P.

6. To find fault with the abovesaid finding, learned advocate for the appellant unsuccessfully tried to submit that the claimant was travelling as unauthorized passenger in the errant vehicle. Rather what is established that the claimant along with other persons were travelling in the goods vehicle. I see no error in the findings of the learned Tribunal to exonerate the insurance company as it is established that the claimant was travelling as gratuitous passengers in the goods vehicle and that breaches the terms and conditions of the policy.

7. Evidence on record indicates that the claimant was travelling as gratuitous passengers. In the fact situation, Co-ordinate Bench of this Court in the case of United India Insurance Co. Ltd. v/s. Fatmaben Ismailbhai and Ors. [First Appeal No.1915 of 2006], refereed judgment of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796 and Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755 to pass order of pay and recover. The issue raised in this appeal is governed by said judgments. Out of above judgments, let refer judgment in the case of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:

“12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.

13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions