Accident - Compensation - Return journey - Liability of Insurance Company - Deceased cannot be termed to be an unauthorised/gratuitous passenger in the insured vehicle till he reaches the place from where he had hired the insured vehicle

Pritam Pal, J.

1. This appeal by National Insurance Company Limited (hereinafter referred to as "the Insurer"), is directed against the award dated September 22, 2005, passed by Motor Accident Claims Tribunal, Bhiwani (hereinafter referred to as "the Tribunal") whereby respondent Nos. 1 to 3 (claimants) were given compensation to the tune of Rs. 4,00,000/- on account of death of Dilbag Singh (40 years).

2. In nutshell, the facts culminating to the commencement of this appeal may be recapitulated thus:

3. On March 22, 2003, Dilbag Singh (since deceased) had hired a TATA-407 vehicle bearing registration No.HR-61/1610 owned and driven by respondent No. 4, Jaibir for taking his animals from his village Kabza Nagar, Tehsil Dadri, District Bhiwani for selling them at Pashu Hatwara, Jaipur. After selling his animals, the deceased was returning in the said vehicle being driven by respondent No. 4, Jaibir (driver-cum-owner/insured). The said vehicle was being driven rashly and negligently. At about 9.00 PM, when the said vehicle reached within the area of Nai Ki Thadi Pashu Hatwari, Near Police Station Amer Jaipur, Jaibir, respondent No. 4, lost his control over the vehicle as a result of which, it turned turtle and Dilbag Singh suffered numerous injuries and later on succumbed to the same. F.I.R. was lodged against respondent No. 4, owner/driver of the vehicle. Smt. Urmila, widow, Ms. Amesha Kumari, minor daughter and Parveen Kumar minor son of Dilbag Singh (since deceased) filed a petition under Section 166 of the Motor Vehicle Act, 1988 (for short, "the Act") claiming therein that Dilbag Singh (deceased) was having monthly income of Rs. 15,000/- from the trading of animals as well as from his agricultural earnings.

4. Upon notice, respondent No. 4 pleaded that while returning after selling buffaloes of Dilbag Singh (deceased), one neel gai came on the road and to avoid any mishap, he took a turn and in that process, balance of the vehicle was disturbed as a result of which, it turned-turtle and as such, there was no rash and negligent driving on his part.

5. On the other hand, the appellant-Insurer in its written statement pleaded that there was no liability of the appellant as there was breach of specified terms and conditions of the insurance policy as well as provisions of Sections 149(2), 134(c) etc. of the Act as at the time of accident, the deceased was travelling in a goods vehicle as an unauthorized/gratuitous passenger. It was further pleaded that since the deceased was no longer the owner of the goods at the time of accident and was travelling in violation of the insurance policy, therefore, the appellant had no liability to pay the compensation.

6. Learned Tribunal, on the pleadings of the parties, had framed the following issues :-

1. Whether the accident which took place on 22.3.2003 was because of rash and negligent driving of respondent No. 1 while drivins TATA-407 bearing registration No.HR-61-1610 is so its effect? OPP

2. Whether petitioners are entitled to receive amount of compensation if so, how much and from whom? OPP

3. Whether the present claim petition is not maintainable in the present form? OPR

4. Whether the insured has willfully violated the terms and conditions of the insurance policy? OPR2

5. Whether respondent No. 1 was not holding the valid and effective driving license on the date of accident, if so, its effect? OPR2

6. Relief.

7. After recording the evidence and hearing counsel for the parties, finding on issue No. 1 was returned in favour of the claimants and against respondent No. 4 as well as the appellant. Under issue No. 2, the claimants were found entitled to the total compensation of Rs. 4,00,000/- with interest at the rate of 7.5% per annum to be paid by the appellant and respondent No. 4 jointly and severally to the claimants. Findings on issue Nos. 3 to 5 were also returned in favour of the claimants as well as respondent No. 4 but against the appellant. Ultimately, the claim petit