Kalyan Sahai Raigar son of Shri Girdhari Lal Raigar v. Smt Naurati Devi wife of late Shri Arjun Lal

Smt. Naurati Devi All residents of village Kothalya, Tehsil Chaksu, District Jaipur (Raj.)

#6. The National Insurance Company Limited, Regional Office, Near Narain Singh Circle, Narain Singh Road, Jaipur through Regional Manager. ----Respondents Connected With S.B. Civil Miscellaneous Appeal No. 3359/2011 National Insurance Company Ltd., Regional Office Jeevan Nidhi, Bhawani Singh Road, Jaipur, Through Its Authorized Signatory. Versus ----Appellant

#1. Smt. Norati Devi W/o Late Shri Arjun Lal, R/o Village Kothleya, Tehsil Chaksu, District Jaipur.

#2. Rajpal S/o Late Shri Arjun Lal, R/o Village Kothleya, Tehsil Chaksu, District Jaipur.

#3. Brij Mohan S/o Late Shri Arjun Lal, R/o Village Kothleya, Tehsil Chaksu, District Jaipur. [2025:RJ-JP:17191] (2 of 7) [CMA-5745/2011]

#4. Kumari Kanta D/o Late Shri Arjun Lal, R/o Village Kothleya, Tehsil Chaksu, District Jaipur.

#5. Smt. Bhonri Devi W/o Shri Swalal Respondent No. 2 To 4 Being Minor Represented Through Natural Guardian i.e. Mother, Smt. Naroti Devi, R/o Village Kothleya, Tehsil Chaksu, District Jaipur.

#6. Sheoji Ram S/o Shri Kalyan Sahai, R/o 21, Raigaron Ka Mohalla, Village Jirot, Post Diyani, Tehsil Sanganer, Jaipur Driver - Jeep No. Rj 14 U 1815

#7. Kalyan Sahai S/o Shri Girdhari Lal Raigar, R/o 21, Raigaron Ka Mohalla, Village Jirot, Post Diyani, Tehsil Sanganer, Jaipur Owner - Jeep No. Rj 14 U 1815 ----Respondents For Appellant(s) : Mr. Kapil Sharma for Mr. Sandeep Mathur Mr. Rizwan Ahmed(for respondent in 5745/2011) For Respondent(s) : Mr. Ritwick Dave (in 3359/2011) HON'BLE MR. JUSTICE MANEESH SHARMA 23/04/2025 Order

#1. These two appeals are arising out of order dated 19.05.2011 passed by the Judge, Motor Accident Claims Tribunal, Jaipur and Additional District Judge (Fast Track), Jaipur City, Jaipur.

#2. Appeal No.5745/2011 is preferred by the owners of the vehicle in question whereas the other appeal No.3359/2011 has been preferred by the Insurance Company.

#3. The facts giving rise to the present appeal are that on

19.08.2005 persons namely, Arjun Lal, Rameshwar, Hemchand, Mukesh and Ramavtar while travelling in Jeep bearing No. RJ.14- U-1815 met with an accident due to rash and negligent driving of [2025:RJ-JP:17191] (3 of 7) [CMA-5745/2011] the driver of the Jeep as the driver lost control over the vehicle and Jeep overturned, therefore, Arjun Lal sustained injuries and later on he died. Claimants are legal representatives of deceased Arjun Lal.

#4. That the driver and owner of the Jeep filed a joint reply and while denying the averments of claim have submitted that the Jeep was insured with the National Insurance Company Limited (hereinafter to be referred as 'Insurance Company'), therefore, liability of payment of compensation, if any, that should be fastened upon the Insurance Company.

#5. The Insurance Company filed its reply to the claim petition and denied the averments made therein. Insurance Company further stated that the Jeep was being used for carrying passengers on hire and reward whereas same was insured for private use only, the Jeep was insured under a policy premium of Rs.700/- which was charged towards third party and Rs.25/- for one employee under Workmen Compensation Act. No premium was charged to cover the risk of the occupants travelling in the vehicle, therefore, the Insurance Company is not liable for the payment of compensation to the claimants.

#6. During the course of trial the claimant examined herself as AW-1, AW-2 Kailash Chandra, AW-3 Ramavtar, AW-4 Nandkishore and produced documents Ex.1 to Ex.12.

#7. The non-claimants in order to convert the averments of the claim petition and the evidence so adduced examined NAW-1 Arindam Gupta, DW-1 Sheojiram, DW-2 Rameshwar Lal and produced documents Ex.NA1 to Ex. NA4. [2025:RJ-JP:17191] (4 of 7) [CMA-5745/2011]

#8. The learned Motor Accident Claims Tribunal decided the issue Nos.1 and 2 in favour of claimant but while deciding the issue No.3, has observed that the deceased was travelling as passenger after making payment of fare, therefore, there is a violation of the terms and conditions of insurance policy but passed the direction that the Insurance Company should initially pay the compensation amount to the claimants and thereafter, they may recover the said amount from the owner of the vehicle. The learned Motor Accident Claims Tribunal awarded compensation of Rs.4,45,000/- in favour of the claimants.

#9. Being aggrieved of the said order, all the parties namely claimants, owner and insurer preferred three separate appeals.

#10. In the appeal preferred by the claimant bearing No.5922/2011, the claim filed by the learned Motor Accident Claims Tribunal regarding the same accident was enhanced to the tune of Rs. 51,000/- on the basis of consent of the Insurance Company and the appeal of the claimant was partly allowed and the award dated 19.05.2011 was modified in terms of appellate order dated 09.01.2013.

#10. The learned counsel for the Insurance Company fairly conceded this aspect that in view of the concession made by the Insurance Company in the similar appeal No.5922/2011, present appeal on behalf of the Insurance Company bearing No.3359/2011 does not survive.

#11. Learned counsel appearing for the driver (Kalyan Sahai) and owner (Sheoji Ram) assailed the finding qua issue No.3 whereby direction to the Insurance Company first to pay the amount and [2025:RJ-JP:17191] (5 of 7) [CMA-5745/2011] then to recover the said amount from the owners, is perverse in view of the statement of AW-5 Hemchand. That deceased was travelling as gratuitous passenger (non-fare paying passenger). He further submits that the vehicle was insured, therefore, it is bounden duty of the Insurance Company to pay the compensation amount to the claimants. He further submits that the Court below mis-interpreted the evidence of AW-1 Norati Devi, AW-3 Ramavtar and AW-5 Hem Chand. Therefore, the directions to recover the amount from owner deserves to be set aside or modified.

#12. Per contra, learned counsel for the Insurance Company supported the impugned order and submitted that direction so passed by the learned Motor Accident Claims Tribunal is in consonance with the law governing the field and since deceased was travelling as passenger after making payment of fare, and deceased was not gratuitous passenger (non-fare paying passenger) which is evident from the statement of Norati Devi, therefore, it is clear case of violation of the terms of insurance policy. Thus, the Insurance Company is not liable further as per the directions of this Court passed in S.B. C.M.A. No.5922/2011 the Insurance Company has already made payment of enhanced amount to the claimants. Thus, no interference is required qua the findings relating to issue No.3 i.e. pay and recover.

#13. Counsel for the claimant supported the impugned order and submitted that the impugned award is perfectly based on sound and legal principles and after considering the evidence on record the learned Motor Accident Claims Tribunal has rightly passed the impugned order. [2025:RJ-JP:17191] (6 of 7) [CMA-5745/2011]

#14. Heard learned counsel for the parties and perused the record.

#15. From the bare look to the statement of AW-1 Norati Devi, who is claimant and Ex.NA-4, it is evident that the deceased was travelling in the vehicle as a passenger and he had paid fare amounting to Rs.30/- to the driver of the vehicle. Therefore, it cannot be said that the deceased was travelling as gratuitous passenger (non-fare paying passenger).

#16. From the bare perusal of the statements of AW-3 Ramavtar and AW-5 Hem Chand it is clear that said statement is not supporting the fact that the deceased Arjun Lal did not make payment towards fare. At the most, statements of AW-3 Ramavtar and AW-5 Hemchand can be read qua themselves only and that does not support the case of the owner in any manner.

#17. AW-5 Hemchand can be said to be the relative of the owner, but in view of admission made in the statement of AW-1 Norati Devi, it is evident that the deceased was travelling as passenger after making payment in the vehicle.

#18. The finding of the Court below that deceased was travelling as passenger and not as gratuitous passenger (non-fare paying passenger) appears to be just and based upon evidence of the parties.

#19. The Law is well settled on the issue that in the policy, if no premium is charged to cover the risk of occupant travelling in the vehicle. Then the Insurance Company can't held liable to pay the compensation amount. [2025:RJ-JP:17191] (7 of 7) [CMA-5745/2011]

#20. Therefore, the judgment given by the learned Court below qua issue No.3 appears to be just and proper.

#21. The direction to pay the compensation amount to the Insurance Company and then to recover the same from the owners cannot be said to be arbitrary or perverse rather the same is in conformity with the law as propounded by the Hon'ble Supreme Court. In view of the foregoing discussion, the Appeal No.5745/2011 preferred by the owner lacks merit and is hereby dismissed.

#22. As observed hereinabove, since the claim amount has been enhanced on the basis of consent recorded by the Insurance Company, appeal bearing No.3359/2011 on behalf of the Insurance Company is also dismissed being not sustainable as the Insurance Company can not approbate and reporbate.

#23. Accordingly, both appeals preferred by onwer as well as the Insurance Company are hereby dismissed with no order as to costs.

#24. Any other pending application(s), if any, stands disposed of.

#25. Record of the Court below be sent back. SOURAV /37-38 (MANEESH SHARMA),J