The central legal point established in the judgment is that the appellant-insurer was not liable to indemnify the owners of the offending vehicle as per the interpretation of the Motor Vehicles Act and relevant case law.

ORDER:

1. The appellant-Insurance Company has challenged the Award dated 30.07.2012 (for short ‘impugned judgment’) passed by the learned MACT Srinagar in a Claim Petition titled Mehra Begum and Others vs. Gh. Mohiudin Rafique and Others, whereby the amount of Rs. 3,27,864/- together with interest @ 6% P.A. from the date of institution of the Claim Petition, has been granted as compensation in favour of claimants/ respondents 1 to 5 payable by the appellant Company.

2. The impugned judgment has been assailed on the following grounds:

“(a) That on account of the admitted factual position as recorded in the pleadings the subject vehicle was an oil tanker not authorized to ferry passengers and the deceased admittedly had stopped the oil tanker and boarded the same for travelling from Srinagar to Jammu. In that view of the matter, the deceased could under no circumstances be regarded as a third party on the strength of which the claimants could seek indemnification from the appellant company. In view of the settled legal position, the liability on all counts arising out of the said accident has to be squarely borne by the owner of the vehicle and insurance company could not be held liable to pay compensation to the claimants.

(b) That the perusal of the award would reveal that the Tribunal has tried to carve out a case for bracketing the deceased as third party which fact is contrary to the pleadings which were available before the trial Tribunal.

(c) That the trial Tribunal has also ignored the evidence led by the company in terms whereof it was positively established that the subject vehicle was an oil tanker and there was no question of ferrying passengers in it. This aspect of the matter has been totally ignored by the trial Tribunal and the trial Tribunal has illegally and improperly imposed the liability upon the appellant company.

(d) That the grant of interest in view of the facts and circumstances of the case, is not inconsonance with law and justice keeping in view the fact that the award passed earlier by the Motor Accident Claims Tribunal, Udhampur was restricted to Rs. 2,17,000/- and that too without payment of interest because of the delay caused by the claimants in approaching the Tribunal for seeking payment of compensation.”

3. Heard and considered.

4. Learned counsel for the appellants has argued that the appellant Company has been saddled with the liability of payment of compensation to the claimants, though it was not liable to pay the same, as the deceased, for whom the compensation had been awarded, was the gratuitous passenger travelling in the Oil Tanker owned by respondents 6 and 7 and insured with the appellant Company. He has further argued that the offending vehicle was not a passenger vehicle and the deceased who was stated to be a police official had travelled by the said vehicle driven by Rajeet Singh respondent No. 8 as a gratuitous passenger from Srinagar to Jammu, which met with an accident on the way, the passenger Habibullah Bhat got injured and as a result succumbed to his injuries. He has further submitted that the legal heirs/claimants of the deceased filed the Claim Petition before the MACT Udhampur in the year 1997 which held that the deceased had travelled by the offending vehicle as the gratuitous passenger, as such, the appellant Company was not liable to indemnify the insured.

5. He next argued that the owner of the offending vehicle filed the appeal before the High Court, and the Single Bench of this Court maintained the order passed by the Udhampur Tribunal and confirmed the liability of compensation to be paid by the owner. Thereafter, LPA was preferred by the owner before the Division Bench of this Court on the plea that he was served of notice as party respondent during the pendency of the Claim Petition and was not granted an opportunity to lead evidence in the matter. Division Bench, considering this aspect of the matter, was pleased to set aside the order passed by the Tribunal and de no