The distinction between an employee and a gratuitous passenger under the insurance policy cover and the necessity for compliance with the provisions of the Motor Vehicles Act and policy conditions.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree dated 15.12.2011 made in M.C.O.P.No.3043 of 2009 on the file of the Motor Accident Claims Tribunal (IV Judge, Court of Small Causes) at Chennai.)

1. The Insurance Company has challenged the Award passed in M.C.O.P.No.3043 of 2009 by the Motor Accident Claims Tribunal (IV Court of Small Causes, Chennai) on the ground of liability.

2. In order to appreciate the grievance of the Insurance Company, it is necessary to set out the facts that has let to the passing of the Award and in do so, the parties for the ease of understanding are referred to in the same rank as before the Tribunal.

3. The petitioner had filed the above claim petition seeking compensation of a sum of Rs.3,00,000/- for the injuries sustained by him in a road accident on 27.07.2009. The petitioner claims to be a freelance loadman, aged about 39 years. It is his case that on 27.07.2019 at about 5.30 hours, he was travelling in a tractor, bearing Registration No.TDH-6984 as loadman. The tractor was being driven by its driver in a rash and negligent manner, as it came near the L & T Company, Porur, Chennai, the driver had applied sudden brake, as a result of which, he had fallen down from the tractor and the tractor had run over the right leg. The accident had occurred only on account of the rash and negligent driving of the driver of the tractor.

4. The first respondent, who is the owner of the tractor did not enter appearance and the second respondent-Insurance Company has filed their counter, in which they have generally denied the contentions raised in the claim petition and also denied the vehicle was insured with them with necessary risk coverage and that the liability cannot be mulcted upon them. Therefore, they sought for dismissal of the claim petition.

5. The Tribunal below, on 15.12.2011 passed an Award, in which, the learned Judge has held that the accident had occurred on account of the rash and negligent driving by the driver of the first respondent's tractor. The Tribunal has held that the contents of the F.I.R has not been contradicted either by the second respondent-Insurance Company or by the first respondent. Therefore, the Tribunal had come to the conclusion that the accident had occurred only on account of the negligence of the driver of the first respondent's vehicle.

6. As regards the quantum of compensation, the Tribunal has arrived at a compensation of a sum of Rs.1,19,900/-. The insurance Company is aggrieved by the above Award on imposing the liability on them, since there is a violation of the provisions of the Motor Vehicles Act as well as the Policy.

7. The learned counsel for the second respondent-Insurance Company would submit that the deceased was travelling on the mudguard of the tractor, since the tractor could only accommodate the driver and there was no seat for others. Therefore, he is a gratuitous passenger in the tractor. The petitioner would state that he was travelling along with the goods in the trailer. However, a perusal of Column No.23 of the claim statement as also the F.I.R would clearly show that the petitioner was travelling in the tractor and not in the trailer. He would therefore contend that the petitioner was only a gratuitous passenger and therefore, the Insurance Company was not liable to compensate the petitioner for the injuries sustained by him.

8. Per contra, Mr.F.Terry Chella Raja, learned counsel for the first respondent would submit that the policy marked as Ex.R3 would clearly show that the WC cover is for one employee, for which, a sum of Rs.25/- has been paid. He would submit that with reference to an employee would only cover the loadman, since under the proviso to Section 147(1)(b), there is no necessity for the policy with reference to a driver. Therefore, the petitioner, being an employee of the first respondent, he is entitled to be compensated and therefore, no exception c