The Insurance Company is not liable to pay compensation for gratuitous passengers in breach of insurance policy terms, but has a liability to pay compensation to the third party and recover the same from the owner of the vehicle.

JUDGMENT :

1. The Insurance Company has preferred the instant appeal against the judgment and award of compensation under Section 166 of the MV Act in M.V. Case No. 36/2003 by 1st Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Palamau.

2. The judgment has been assailed mainly on the ground that it is a case of breach of the terms and conditions of insurance policy by the owner of the offending vehicle, as passengers were allowed to travel on a goods vehicle and therefore the Insurance Company under Section 149 of sub section 2 (a) was not liable to pay the compensation amount.

3. As per the case of the claimant the deceased Dudun Ram aged about 18 years was labourer working on the tractor on a monthly income Rs.2000/-. On 22.03.2002 while the deceased was going on the tractor, the tractor overturned due to rash and negligent driving of the driver resulting in his death.

4. The learned Tribunal recorded the finding of fact that the deceased was sitting on the tractor on the material time of the accident and not on the trailer attached to the tractor.

5. It is not in dispute that the tractor was under insurance cover of Oriental Insurance Company Limited which has been impleaded as O.P. No. 3 in the claim case and the liability of payment of compensation has been fastened on the Insurance Company. The short question for consideration is whether the Insurance Company is liable to pay the compensation in the facts and circumstances of the present case?

6. It has been held by Hon’ble Supreme Court in National Insurance Company Limited Vs. Baljeet Kaur (2004) (2) SCC 1 that the Insurance Company cannot be made liable to pay the compensation for gratuitous passenger who were neither contemplated at the time when the contract of insurance was made nor any premium was paid. The sum and substance of the ration decided in Baljeet Kaur case (supra) is that in case of gratuitous passenger the Insurance Company is not liable to indemnify the owner of the vehicle for paying compensation on ground of breach of term of insurance policy, but it has a liability to pay compensation to the third party and recover the same from the owner of the vehicle.

7. Here in the present case there is a definite finding of fact recorded by the learned Tribunal that the deceased was travelling on the mud guard of the tractor at the relevant time of the accident. Permitting a person to travel on the tractor when it could accommodate only one person namely driver by the owner of the vehicle, is a breach of terms and conditions of the policy and therefore in view of the ratio of the Hon’ble Apex Court Shibaraj Vs. Rajendra and another (2018) 10 SCC 432 the Insurance Company was not liable to pay the compensation amount. However, the Insurance Company shall pay the compensation amount to the claimants with liberty to recover the same from the owner of the tractor.

8. In the result, the appeal is allowed as at above. The Insurance Company is permitted to withdraw the statutory amount.