The court clarified the authority of the MACT to direct the insurer to make payment and later recover from the insured when there was no coverage and liability was fixed on the actual tort feasor.

JUDGMENT

The present appeal is directed against the judgment and order dated 27-02- 2015 passed by the learned Motor Accident Claims Tribunal No.2, Kamrup, Guwahati.

The brief facts of the case is that the deceased, Rafiya Khatun while travelling on vehicle bearing registration No. AS-21-B-0116 (Tata ACE Van) carrying goods towards Kakojan side from Naharani Majgaon met with an accident on reaching Naharani Chekora Railway Km.42/0-1, unmanned Railway Crossing Gate under Farkating GRP, Out Post. The driver of the said vehicle is said to have negligently stopped the vehicle between the railway crossing gate as a result of which, the passenger carrying train vide No. 903 proceeding from Guwahati towards Upper Assam knocked down the vehicle and the deceased Rafiya Khatun sustained serious injuries. The deceased was aged 45 years and she was said to have been earning Rs. 6,000/- p.m.

2. A case was registered as accident case vide MXN GRP Case No.5 of 2012 under Sections 279/304(A), IPC and the driver of the offending vehicle was charge sheeted and sent for trail for negligent driving and causing accident. At the stage of trail, the learned Tribunal found that the vehicle was a goods carriage vehicle which was insured with the Oriental Insurance Company Limited covered under Policy No.322102/31/2012/12528 which was found to be valid upto 11-03-2013. The learned Tribunal found that the vehicle Tata ACE AS-21-B-0116 was responsible for the occurrence of the accident and ruled that the accident occurred because of the negligence of the ill fated vehicle. On scrutiny of the documents, it was found that the policy concerned did not possess any coverage for the passenger. It was found to be a goods carriage vehicle and no extra premium was paid to cover the risk for the passenger. Hence, it was decided that the respondent No.1, the appellant in the instant case was not liable to pay any compensation the victim only being a gratuitous passenger. The learned Tribunal made assessment and awarded Rs.10,54,000/- to the claimant. This was directed to be paid by the respondent No.1, the present appellant @ 6% per annum from the date of filing till realization of the awarded amount. It was specifically directed that the awarded amount be made recoverable from the owner.

3. Being aggrieved, the Oriental Insurance Company, the appellant has filed the present petition on the ground that:

(a) the claimant have no locus standi as they are resident of Golaghat district and the accident took place in the district of Golaghat. The policy issuing office is also from the district of Jorhat. Thus, as per the provision of Section 166 (2) of the M.V. Act, 1988, the MACT No. 2, Kamrup, did not have jurisdiction to adjudicate the claim petition and the judgment obtained from court which has no jurisdiction is a nullity under law. Hence, the judgment is liable to be quashed.

(b) Further, it has been pleaded that the deceased is a gratuitous passenger traveling in goods vehicle and the appellant company is not liable to pay any compensation to the claimant. The liability to pay compensation is on the owner of the vehicle who was the tort feasor. Thus, the judgment deserves to be quashed.

(c) The appellant has also challenged the order on the ground that the payment is directed to be made without making provision for security from the owner of the vehicle as the company would not be in a position to recover the same from the vehicle owner in absence of any such security. All the above decision of the learned Tribunal, are against the principles laid down by the Apex Court and hence, the judgment must be set aside.

4. Mr. A. R. Agarwal, learned counsel for the respondent No.1 submits that there are several decisions of the Courts for making payment by the insurer to be recovered from the owner of the vehicle. Hence, he has argued that there is no illegality in the order passed by the learned Tribunal. He has placed reliance on: (2008) 12 SCC 385 Oriental Insurance C