The Jammu and Kashmir and Ladakh High Court in the case National Insurance Co. ltd.Vs Mursa Begum and ors observed that once it is being shown that deceased or injured persons were traveling as unauthorised passengers in an offending vehicle and their risk is not covered under the terms insurance policy, thus, the insurer cannot be saddled with the liability to compensate them and even the principle of ‘Pay and Recover’ will not be attracted.
The bench headed by Justice Sanjay Dhar in the case observed, wherein an appeal has been filed by an Insurance Company against an award passed by the Motor Accidents Claims Tribunal, Doda for granting compensation in favour of the claims made by or on behalf of unauthorised passengers traveling in a load carrier truck, alleging driven in a rash and in a negligent manner.
The counsel, Adv. Dinesh Singh Chouhan appearing for the Insurance Company in the observed and has remised his appeal on the ground that the deceased or injured in the case were travelling as gratuitous passengers and as such, the risk to life was not being covered under the policy of insurance.
It has been contended by the claimant that they were being forced to board the truck after being stranded in the middle of the road by some Army personnel, thus, who needed the bus in which the claimants were travelling for the purpose of their own.
Therefore, the moot question that fell for adjudication was as to whether the appellant-Insurance Company could be saddled with the liability to satisfy an award on an account of death or through bodily injuries of an unauthorised passenger or in the alternative whether order of “pay and recover” could be made against the insurer in such kind of case.
The bench of Justice Dhar in the case noted that though the offending vehicle was insured, the risk to the lives of passengers in the offending vehicle, which being a load carrier, was not being covered in the policy.
The bench stated that if all the deceased or injured were forcibly made to board the offending vehicle, thus, they may have the grievance against the Army personnel but they cannot have a cause of action against the appellant-Insurance Company, as the same had nothing to do with the alleged forcible boarding of the deceased or injured in the truck in question.
It has also been explained by Justice Dhar that once it is being shown that deceased or injured were travelling as unauthorised passengers in the offending truck, the risk of them was not covered under the terms of policy of insurance. Thus, the direction for pay and recover cannot be passed against the appellant-Insurance Company in such cases.
Accordingly, the bench allowed the appeal and the appellant-Insurance Company was exonerated from its liability to satisfy the awards impugned.
