1. This Civil First Miscellaneous Appeal is directed against the interim order dated 22.01.2013 passed by the Presiding Officer of the Motor Accidents Claims Tribunal, (for short, `Tribunal'), Shopian, in a claim petition titled Afrooza and others v. Zahoor Ahmad Najar and others, on the grounds projected in the memo of appeal.

2. The short controversy in the instant appeal is limited to the issue as to whether the death of an occupant in a road accident traveling in a private car as a gratuitous passenger would entitle the legal representatives of the deceased occupant to interim relief in terms of Section 140 of the Motor Vehicles Act, 1988, on the principles of no fault liability.

3. The admitted facts giving rise to this controversy may briefly be noticed.

4. One Fayaz Ahmad Ganai was travelling in the offending vehicle bearing registration No. JKO1F-9188 from Jammu to Srinagar. At Sherbibi near Banihal, the said vehicle met with an accident and fell into a gorge. The deceased sustained fatal injuries and died on the spot. The legal representatives of the deceased filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (for brevity `Act') before the Tribunal. Pending adjudication of the claim, the claimants filed an application for grant of interim relief under section 140 of the Act. The appellant-insurer raised objections to the award of interim relief on the ground that the driver / owner of the private car was not holding a valid and effective driving license on the date of accident and that the deceased was not covered under the insurance policy as the said car was insured against 3rd party risks and deceased was a gratuitous passenger. It is the admitted case of the parties that the deceased was travelling in the said car which met with a fatal accident resulting in death of the deceased. It is also an admitted case before the Tribunal that offending car was insured with the appellant-Insurer. The Tribunal, on consideration of the respective cases of the parties, was of the opinion that the expression 3rd party includes everyone including the persons travelling in any vehicle. The Tribunal has placed reliance on the judgment of this Court in Oriental Insurance Company Limited v. Surinder Kumar and others reported in 2009 (2) JKJ HC 695. It being the undisputed case of the parties that the deceased met with a fatal accident involving use of offending vehicle which was covered by insurance against 3rd party risks, it is to be determined whether the occupant of a private car travelling as a gratuitous passenger is governed by the insurance against the 3rd party risks.

5. In National Insurance Co. Ltd. v. Faqir Chand reported in AIR 1995 J&K 91, this Court while considering the case set out therein has held that the expression `third party' refers to a party which is neither the first party (the insurer) nor the second party (the insured). It would be advantageous to reproduce the paragraph 3 of the judgment, which reads hereunder:

3. Other than the contracting parties to the insurance policy, the expression "third party" therefore, should include everyone, be it a person travelling in another vehicle, one walking on the road or a passenger in the vehicle itself which is the subject matter of the insurance policy. Every insured takes out an insurance policy against a third party risk, and enters into a contract with insurer, only with the motive, intention and purpose of covering the risks which may arise in relation to claims lodged against him by a third party. Be agreeing to issue the insurance policy, the insurer undertakes to insure the insured and indemnify him against all risks and in relation to all claims lodged against him by third parties. Narrowing the concept, scope and ambit of a third party, and therefore, excluding the passengers in the vehicle from the operation and purview would not only defeat the very purpose of taking out the insurance policy, but the very object of the Motor Vehicles Act

Click Here to Read the rest of this document