Insurance companies cannot avoid liability if evidence shows the deceased was not a gratuitous passenger and policy conditions were not violated.

JUDGMENT :

Heard Mr. S. Dutta, the learned counsel appearing on behalf of the appellant Insurance Company. None appears on behalf of the respondents on call.

2. The instant appeal is filed under Section 173 of the MOTOR VEHICLES ACT , 1988 (for short ‘the Act of 1988’) against the judgment and award dated 29.05.2012 passed by the learned Member, Motor Accident Claims Tribunal, (FTC) Bongaigaon in MAC Case No.178/2006.

3. The ground of objection so taken in the present memo of appeal is that the deceased was a gratuitous passenger. It is relevant to take note of that along with the claim proceedings, there were 5 (five) other claim proceedings have been filed wherein also similar awards were being passed by the learned Member, Motor Accident Claims Tribunal, (FTC) Bongaigaon, holding inter alia that the passengers in the ill-fated vehicle were not gratuitous passengers. It is further seen that there against, the appellant Insurance Company have filed 4 (four) appeals before this Court which were registered and numbered as MACApp. No.265/2010, MACApp. No.260/2010, MACApp. No.20/2010 and MACApp. No. 3/2014.

4. This Court vide a common judgment and order dated 23.05.2018 disposed of MACApp. No.265/2010, MACApp. No.260/2010 and MACApp. No.20/2010 holding inter alia that the evidence which was produced by the appellant Insurance Company was not sufficient to come to a finding that the passengers were the gratuitous passengers. Paragraph Nos. 11, 12 and 13 of the said common judgment and order dated 23.05.2018 being relevant are reproduced herein under:

“11. What therefore transpires from the evidence is that, the vehicle was used by the deceased person along with the owner of the vehicle himself and the son of the vehicle was on the wheel. Admittedly all of them were going to settle the date of marriage. All the witnesses examined by the tribunal categorically stated that the vehicle was not hired. However, some of them stated that Rs.800/- was paid for purchasing fuel. It is also reflected in the judgment that another witness in MAC Case No.136/2005, also stated that the owner of the vehicle allowed the vehicle to be used for domestic purpose without any hiring charge. When admittedly the vehicle was used by the deceased along with others including the owner of the vehicle for purpose of going to settle marriage and when there was positive and candid evidence that vehicle was not hired nor any fare was given to the owner, mere providing the fuel can by no stretch of imagination be considered as hiring the vehicle. As per oxford dictionary the word ‘hire’ means obtain temporary use of something in return for payment. In the present case, the vehicle was used by the owner himself along with others for some personal family function and cost of fuel was borne by someone among the occupants and nothing was paid to the owner as pecuniary benefit for using the vehicle. Thus from the above evidence, it is difficult to hold that the vehicle was given on hire. In view of the above evidence, it can by no stretch of imagination, be held that the vehicle was given on hire by the insured/owner for pecuniary benefit. When all the witnesses stated categorically that the vehicle was not hired and the Insurance Company wants to avoid the liability, on the ground of violation of condition of policy, that the vehicle was hired, the burden necessarily lied with the Insurance Company to prove, that the vehicle was indeed given on hire for some pecuniary benefit. Apparently, the insurance company failed to adduce any legal evidence to establish, that vehicle was given on hire by the insured for any pecuniary benefit. On the contrary, the claimant adduced sufficien