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National Insurance Co. Ltd. Vs. Nathibai and ors., - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtGujarat High Court
Decided On
Judge
Reported in1(1986)ACC185
AppellantNational Insurance Co. Ltd.
RespondentNathibai and ors.,;parvatibai Nathabhai and ors. and Kanji Damji and ors.
Excerpt:
- - in absence of the case, the insurer cannot avoid the liability and hence the contention in the present case must fail. these is no other defence available to the insurer in the present appeals ;and hence the appeals fail and are dismissed with no order as to costs......vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, whether a passenger on payment will get the benefit of the statutory insurance?and the full bench has observed the question as under:the liability in respect of the death of or bodily injury to a passenger carried for hire or reward on the insured vehicle when the accident giving rise to the claim occurred, including the liability in respect of the owner or hire of the insured vehicle or his bonafide employees within the permissible limit, will be covered by the statutory insurance either by virtue of section 95(1)(b)(i) read with the second clause of the proviso or by reason of section 95(1)(b)(i) of the act. in such case, the insurer will have to pay to the person entitled.....
Judgment:

R.A. Mehta, J.

1. These three appeals by the insurer challenge the awards made by the Motor Accident Claims Tribunal in three cases arising out of the same accident. The matter had gone to the Full Bench on the question of liability of the Insurer Company and that judgment is reported in 23 (1) GLR 411 and the question which was referred to the Full Bench was as under:

Where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, whether a passenger on payment will get the benefit of the statutory insurance?

And the Full Bench has observed the question as under:

The liability in respect of the death of or bodily injury to a passenger carried for hire or reward on the insured vehicle when the accident giving rise to the claim occurred, including the liability in respect of the owner or hire of the insured vehicle or his bonafide employees within the permissible limit, will be covered by the statutory insurance either by virtue of Section 95(1)(b)(i) read with the second clause of the proviso or by reason of Section 95(1)(b)(i) of the Act. In such case, the insurer will have to pay to the person entitled to the benefit of the award the sum assured, which shall not be less than the sum, specified in Section 95(2) subject, however, to the right of the insurer to disclaim the liability, inter alia under Section 96(2)(b)(i)(a). The insurer, in order to successfully disclaim his liability on that ground will have to establish:

1. that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward:

2. that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward, and that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward.

If all these facts are established by the insurer, the benefit of statutory insurance will not be available in respect of such passenger.

2. In the present case the insurer has not got produced and proved the permit to show that the permit did not provide for carrying on passenger for hire or reward. In absence of the case, the insurer cannot avoid the liability and hence the contention in the present case must fail. These is no other defence available to the insurer in the present appeals ; and hence the appeals fail and are dismissed with no order as to costs.


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