The main legal point established in the judgment is that the Insurance Company is not liable to indemnify a gratuitous passenger on board a goods vehicle unless the passenger is the owner of the goods or his authorized agent, and that too, in a case arising after the 1994 Amendment to the Motor Vehicles Act, 1988.

JUDGMENT :

J.J. MUNIR, J.

1. This is an Insurance Company's appeal challenging the judgment and award passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 6, Sitapur dated 07.02.2008 in MACP No. 230 of 2006, ordering the Insurance Company to pay and recover.

2. The only issue involved in this appeal is whether a gratuitous passenger, travelling on board a goods vehicle, who sustains injury in an accident, is entitled to recover from the Insurance Company on the plea of pay and recover?

3. In view of the issue involved, elaborate reference to the facts and evidence is not warranted in the present appeal. All that is relevant is that the claimant-respondent, Hari Shanker was travelling on board a truck bearing Registration No. UGK-0016 on 06.02.2006. He was proceeding from his native Village Nai Basti, Juhra, Pargana and Tehsil Mishrikh, District Sitapur to Powayan. The truck by accident, ill-fate or negligence, turned turtle at a place called Niyamatpur within the local limits of Police Station Sidhauli, District Shahjahanpur. The accident occurred at around 4 o'clock in the evening hours.

4. It is the claimant's case that he sustained grievous injuries leading to amputation of both of his heels. He claimed a total compensation under various heads to the tune of Rs. 3 lakhs. The vehicle, wherein the claimant was travelling, was insured with the United India Insurance Company Limited, Station Road, Sitapur. The Insurance Company were impleaded as parties. The owner of the truck is one Rakesh Chandra, who was arrayed as opposite party no. 1 to the claim petition. He is the second respondent to the appeal. The claimant is the first respondent here. The claim was contested both by the owner and the Insurance Company before the Tribunal.

5. The Insurance Company put forth the defence that the claimant was a gratuitous passenger on board a goods vehicle, which amounted to the violation of the insurance policy. Other defences were also urged. The parties led evidence, where mostly documentary evidence was led by the claimant. The claimant examined himself in support of his case as PW-1. The Tribunal on the basis of his testimony concluded that he was indeed a gratuitous passenger on board a goods vehicle. The Tribunal held the owner liable to pay the claimant a sum of Rs. 24,557/- together with 6% simple interest. The Insurance Company were not held liable to indemnify. Nevertheless, invoking the principle of “pay and recover” the Insurance Company were ordered to pay the awarded compensation to the claimant in the first instance and then recover from the owner.

6. It is this part of the direction made by the Tribunal that the Insurance Company have questioned in the present appeal. Though, appearance was put in on behalf of the respondent and name of the learned Counsel was shown on the respondent's side, at the hearing of the appeal, no one appeared either on behalf of the claimant or the owner. The hearing proceeded ex-parte and judgment was reserved.

7. Heard Ms. Alka Saxena, learned counsel for the appellant.

8. The learned Counsel for the appellant submits that the Insurance Company are not liable to pay anything in the first instance and then recover, because there is a breach of the insurance policy in carrying a gratuitous passenger on board a goods vehicle. She has placed reliance on the decision of the Supreme Court in National Insurance Co. Ltd. vs. Bommithi Subbhayamma, (2005) 12 SCC 243 and the decision of their Lordships in National Insurance Co. Ltd. vs. Prema Devi and Others, (2008) 5 SCC 403.

9. This Court has considered the submissions advanced on behalf of the appellant-Insurance Company and carefully perused the record.

10. There is no doubt that the claimant was a gratuitous passenger on board a goods vehicle. He was neither the driver nor the cleaner or a functionary on board the ill-fated truck. He was also not the owner of the consignment being carried or the consignment owner's authorized ag