IMPORTANT POINT
Insurance company is not liable to indemnify gratuitous passengers.

1. Award passed by Motor Accident Claims Tribunal, Udhampur dated 26th of September, 2013 and the order dated 21.11.2016, whereunder an application for setting aside the ex-parte award has been rejected, are the subject matter in this appeal.

2. This case has its own chequered history. Considerable delay in final disposal of the case is totally to the disadvantage of the claimants.

3. The short controversy is, as to whether the Insurance Company is liable to indemnify the respondent No.1.

4. Respondent No.1 (claimant) in whose favour the award has been passed was a gratuitous passenger travelling in a petrol tanker, which met with an accident. Whether liability is of the insurance Company or of the owner, same question has been answered in favour of the insurance company in terms of the ex-parte award dated 26.9.2013. The owner and driver (present appellants) have been held liable to pay the award amount.

5. Brief facts of the case:

6. The accident occurred near Jakhani at Udhampur on 11.10.1994 when Tanker No. JKC-9826 in which amongst others, respondent No.1 was also travelling, who got injured. Three other co-passengers died. Four claim petitions bearing Claim File Nos. 97/95, 98/95, 55/95 and 56/95 were disposed of by a common judgment by the MACT, Udhampur. The claimants were held entitled to compensation whereas, respondent No.1, who was ‘the claimant in Claim File No. 97/95 was held entitled to an amount of Rs. 3,84,000/- along with interest @ 12% P.A. Insurance Company was fastened with the liability to indemnify.

7. Against the said judgment, four appeals bearing CIMA Nos.65-A/1999, 66-A/1999, 63-A/1999 and 64/1999 were filed. All the four appeals were disposed of by a common judgment dated 26.9.2001. CIMA Nos.65-A/1999 and 66/1999 were dismissed. In CIMA No.63-A/1999, amount of compensation was varied whereas, CIMA No.64/1999 which pertained to the respondent No.1 was adjourned for further hearing. Before that could be decided, LPA Nos.132/2001, 133/2001 and 134/2001 were filed without any success as the same stands dismissed vide judgment dated 1.12.2005.

8. Subsequent thereto, CIMA No. 64/1999 was decided vide detailed judgment dated 19.12.2002. The case was remanded to the Motor Accident Claims Tribunal, Udhampur for its disposal in accordance with law with a direction that the opportunity should be given to the parties to lead evidence. The doctor be also examined as a witness. All the points were left to the decision of the Motor Accident Claims Tribunal, Udhampur, In compliance whereof, learned Tribunal after hearing the parties, except the appellants (owner and driver) because they did not appear, passed the award in favour of respondent No.1 on 21.11.2006 for an amount of Rs.6,45.000/- but the owner and driver had been fastened with the liability to pay the amount of compensation.

9. The contention and the issue for determination is as to whether the insurance company shall be liable to indemnify. In this connection, issue No. 4 has been specifically framed and the learned Tribunal has recorded a finding that the respondent No. 1-Shabir Ahmed Lone was a gratuitous passenger, insurer is not liable to indemnify the insured (owner of the offending vehicle). In support, he has placed reliance on the judgment of the Apex Court reported in 2006(3) Supreme 332.

10. All along from the year 1999, it appears that the owner and the driver have been silently watching the proceedings as fence sitters. When the liability was fastened against them, they filed an application seeking setting aside of the ex parte award dated 21.11.2006 but without any success as the application has been dismissed vide order dated 26.9.2013.

11. Learned Tribunal has passed a well reasoned order and has correctly observed that the driver and owner all through have been irresponsible and irresponsive. They have been silently watching the proceedings as fence sitters in spite of having notice of pendency of claim petition against