Insurers are not liable for gratuitous passengers in goods vehicles as they are not covered under policy terms, affirming the 'pay and recover' principle.

ORDER :

These miscellaneous appeals are filed by the Insurance Company being aggrieved of the award dated 08/11/2012 passed by learned 14th Additional Motor Accident Claims tribunal, Bhopal in Claim Cases Nos. 1225/2010, 1223/2010, 1224/2010 and 1278/2010 on a singular ground that since the wards of the claimants/claimant either died when the truck on the roof of which they were travelling came in contact with a high tension line or sustained grievous injuries, but, overlooking the fact that victims were travelling as a gratuitous passengers, therefore, there was violation of the terms and conditions of the policy, hence, there could not have been an order of pay and recover, however, arbitrarily learned Claims Tribunal has directed that the compensation amount be paid by the insurance company and thereafter they will be entitled to recover it jointly and severally from the owner and driver of the offending vehicle.

2. Reliance is place on the judgment of three Judges Bench of Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Asha Rani and others, AIR 2003 SC 607 wherein it is held that the law laid down by the Supreme Court in New India Assurance Com. Vs. Satpal Singh and others , AIR 2000 SC 235, has not laid down the law correctly and should be overruled.

3. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Baljit Kaur and others , (2004) 2 SCC 1 wherein the ratio of three Judges Bench of Hon'ble Supreme Court is that in respect of goods vehicle, liability of insurer does not cover gratuitous passengers carried in such vehicle, therefore, while allowing the insurer's appeal, in the interest of justice, the insurer was directed to satisfy the awarded amount and recover the same from the owner of the vehicle simply by initiating a proceeding before the executing Court without filing a separate suit.

4. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Com. Ltd. Vs. Bommithi Subbhayamma and others , (2005) 12 SCC 243 wherein it is held that insurer's liability does not extent to cover gratuitous passengers carried in a goods vehicle.

5. Similarly, in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan and others , (2007) 7 SCC 56 , it is held that gratuitous passenger carried in goods vehicle is not covered. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs.Vedwati and others, (2007) 9 SCC 486.

6. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Kaushalaya Devi and others , (2008) 8 SCC 246 wherein it is held that insurance company is not liable to compensate the gratuitous passenger and owner alone will be liable to pay compensation because deceased was not the owner of any goods which were being carried in the truck.

7. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Rattani and others , (2009) 2 SCC 75 wherein it is held that expression 'owner of goods' will not cover members of the marriage party travelling in truck allegedly transporting gifts received from bride party. It is also held that since victims of accident were travelling in truck as gratuitous passengers, they are not covered.

8. Thus, it is submitted that since victims were gratuitous passengers, therefore, they are not covered under the terms and conditions of the policy, hence, the order of pay and recover is liable to be set aside.

9. Nobody is appearing for the respondents/claimants, therefore, perused the record and the judgments c