Gratuitous passengers in uninsured vehicles are not entitled to compensation under the M.V. Act.

JUDGMENT

Date : 11-12-2020 Heard Ms. R.D. Mozumdar, the learned counsel for the appellant.

2. This appeal under Section 173 of the M.V. Act, 1988 is against the Judgment & Award dated 31.08.2010 passed by the learned Member, MAC Tribunal, Nagaon in MAC Case No. 201/2006. The MAC Case No. 201/2006 was initiated upon a claim petition filed under Section 166 of the M.V. Act, 1988 by the respondent no. 1 Abdul Halim that on 29.03.2006 at about 3 PM while the claimant/respondent no. 1 boarded the vehicle bearing Registration No. AXK- 4134 (Maruti Van) and proceeded towards Amolapatty at Pakukata side along with his friend to attend a marriage party, due to rush and negligent driving of the driver of the said Maruti Van it turned turtle at the road side of Amolapatty. Due to the accident the vehicle damaged partly and the claimant respondent no. 1 sustained grievous injury on his right leg and other injury on several parts of the body. He was hospitalised. The respondent no. 2 as the owner though denied the incident, however, admitted that the driver of the vehicle at the time of accident had a valid driving licence and the vehicle was insured with the present appellant- insurance company and the said policy was valid up to 08.11.2006 covering the date of accident i.e. 29.03.2006. According to the said owner if any liability arises, the same is supposed to be indemnified by the respondent-insurance company.

3. The present appellant-insurance company vide its written statement specifically raised the issue that no third party was involved in the accident and that the claimant respondent no. 1 was a gratuitous passenger in the said vehicle and under Section 147 of the M.V. Act, 1988, the risk of death or injury to such gratuitous passenger was not maintainable and the insurance company is not liable to compensate. On the basis of the said pleadings the learned Tribunal framed the following issues:

1. Is there any cause of action for filing the claim petition?

2. Whether the claim petition is maintainable?

3. Whether claim is bad for mis-joinder of parties?

4. Whether the claimant is entitled to compensation, if so, what amount shall be paid as compensation and whom is it payable?

5. To what relief/reliefs are the parties entitled?

4. The claimant/respondent adduced evidence and on the basis of the said evidence the learned Tribunal held that the claimant/respondent no. 1 sustained grievous injury due to the motor vehicle accident caused by the offending vehicle No. AXK-4134 due to rush and negligent driving of the driver of that vehicle. Finally the Tribunal having considered the documentary evidence in support of the accident and other medical documents awarded a total compensation of Rs. 50,280/- with a direction to make payment by the respondent/insurance company within a period of 2 months from the date of award along with 6% per annum interest from the date of passing the award.

5. Being aggrieved by the impugned judgment and award, this appeal under Section 173 is preferred by the present appellant. This appeal was admitted on 12.02.2014 directing the appellant to issue notice to the respondents including the claimant/respondent no. 1. As it is apparent from the record that notice could not be served on the claimant/respondent no. 1 and the respondent no. 3, this Court was satisfied and vide order dated 19.12.2018 allowed the appellant to take steps on the respondent nos. 1 and 3 by way of paper publication, directing the notice to be published in two widely circulated newspapers, one in English and the other one in vernacular. In compliance of the said order, the appellant through its officials filed an affidavit along with the copy of the notice published in the newspaper and on the basis o