IMPORTANT POINTS
The Insurance Company has no liability to indemnify the owner of the goods vehicle, with respect to the compensation awarded for the loss of life of the deceased, who was not an employee of the owner of that vehicle and has been proved to be a gratuitous passenger in the goods carriage involved in the accident. Even a spare driver as found in Saju P. Paul would not be covered by an 'Act only policy'. The insurance company has to be absolved from the liability to indemnify the owner of the vehicle, as per the policy. The award is set aside to that limited extent.

JUDGMENT :

The appeal is by the Insurance Company alleging that the injured-deceased in the subject accident, was a gratuitous passenger and there could be no liability cast on the insurance company on the strength of the policy covering the vehicle MH-11-F 4369. An incident occurred where a driver, who was a passenger in the offending vehicle, fell off the moving lorry and succumbed to the injuries occasioned. The specific case of the claimants was that the deceased was employed in one lorry among the two travelling together from Kerala to Maharashtra and while he was travelling in the other lorry he slipped down and was run over by the same vehicle. The application was one under Section 163A of the Motor Vehicles Act, 1988 and there is no question to be decided of negligence. The learned counsel appearing for the respondents/claimants argued before me that both the vehicles were owned by one person and even when the deceased was travelling in the other vehicle, he was the employee of the registered owner and was travelling as a spare driver; covered under the Proviso to Section 147.

2. One Milind S/o. Bhanudas, narrates the incident in the First Information Statement (FIS). There were two vehicles travelling from Kerala to Maharashtra with rubber wood loaded in them, which load was picked up from the factory of PW1. Each of the vehicles had two drivers, called the first driver and the second driver, and a cleaner. The person who made the FIS was the cleaner of one of the vehicles. PW3 the second driver of the offending vehicle, involved in the accident, was examined before the Tribunal. Both these persons narrated the story in consonance with each other. The narration as indicated from both the FIS and deposition of PW3 is as follows.

3. Two vehicles bearing registration numbers MH-11-M 5097 and MH-11-F-4369 (referred to as the 'offending vehicle' despite there being no negligence of that driver) had come from Maharashtra to Kerala with loads of Dalda. After unloading the same, timber was loaded on to the vehicles from the premises of PW1 and both were proceeding to Maharashtra. Each of the vehicles had two drivers and one cleaner as employees of the registered owner. In the vehicle having registration number MH-11-M 5097, the employees were Jamshed Mulla, the first driver, who is the deceased, Ananda Rao, the second driver and Milind, the cleaner who gave the FIS. In the offending vehicle, the first driver was Sasikanth (first respondent), the second driver Balikhan(PW3) and cleaner Thanaji. While they were proceeding towards Maharashtra on 31.12.2005, vehicle bearing registration No.MH-11-M 5097, driven by the deceased, was running in front of the offending vehicle, driven by the first respondent. The vehicle driven by the deceased brushed against a motor-cycle, but since nothing serious occurred he did not stop. The motor-cyclist followed and way-laid the lorry. By this time the offending vehicle MH-11-F 4369 had come to the spot and parked behind MH-11-M 5097. The deceased who had been driving MH-11-M 5097, got out through the left cabin door and boarded the offending vehicle, parked behind. The second driver of the offending vehicle Balikhan (PW3) stepped down from that vehicle and came forward to talk to the motor-cyclists. Bali Khan and Ananda Rao spoke to the motor cyclist and settled the matter in the presence of Milind. By that time, the other vehicle resumed its journey and Jamshed Mulla, the deceased, was presumed to have travelled in that lorry. A little later, MH-11-M 5097 also resumed its journey with Ananda Rao in the driving seat and Balikhan and Milind accompanying, in the cabin. They were under the impression that Jamshed Mulla was travelling in the other lorry. Milind also speaks of seeing a person lying on the road as they proceeded further, who it was presumed was a drunkard. Both the vehicles met a little later near a Dhaba, when Sasikanth, the driver and Thanaji, the cleaner of the offending vehicle, inf