Research › Search › Judgment

Kerala High Court · body

2003 DIGILAW 36 (KER)

National Insurance Co. Ltd. v. Kottan

2003-01-20

K.A.ABDUL GAFOOR, K.THANKAPPAN

body2003
Judgment :- 1. The insurer has filed these appeals challenging the awards passed by the Motor Accidents Claims Tribunal, Kasaragod in O.P. (MV) No. 611 of 1996 and 417 of 1996 respectively whereby the appellant was directed to pay compensation to the dependents of the deceased and the injured in a motor accident. 2. The vehicle in question is admittedly a tractor as defined in S.2(44) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"). Neither the deceased nor the injured was the owner of any goods carried in the vehicle or his representative. Further, the vehicle was not carrying any goods at the relevant time. As per the definition of a "tractor", it is not one designed to carry goods. Even if it was carrying goods while it was being used, it will not come within the definition of goods carriage, as defined in S.2(14) of the Act. 3. Ext.B6 is the registration certificate of the vehicle in question which shows that it has the sitting capacity to accommodate its driver alone and, therefore, it does not come within the definition of 'public service vehicle' as defined in S.2(35) of the Act. Tractor is not included in the different types of vehicles that come under public service vehicles. Obviously, it has been specifically defined under S.2(44) of the Act. So, the tractor which was involved in the accident in question cannot be taken as a public service vehicle or a goods carriage as it was not carrying any goods at the relevant time. Inspite of that, the Tribunal relying on the decision reported in United India Insurance Co. Ltd. v. Appukuttan, (1995 (1) KLT 807), directed the insurer to compensate the claimants. This is, impugned in these appeals. 4. As the policy was only an Act policy and as the vehicle in question was not intended to carry goods or passengers, the claimants should not have been directed to be compensated; as the injured and the deceased were admittedly passengers in the tractor. In support of this contention, the learned counsel appearing for the appellant relies on a very recent decision of the Supreme Court reported in New India Assurance Co. Ltd. v. Asha Rani, 2003 (1) KLT 165 (SC) wherein the decision reported in New India Assurance Company v. Satpal Singh, 2000 (1) KLT 95 (SC) has been overruled. In support of this contention, the learned counsel appearing for the appellant relies on a very recent decision of the Supreme Court reported in New India Assurance Co. Ltd. v. Asha Rani, 2003 (1) KLT 165 (SC) wherein the decision reported in New India Assurance Company v. Satpal Singh, 2000 (1) KLT 95 (SC) has been overruled. In Satpal Singh's case, the Supreme Court held that: "under the new Act (1988 Act) an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class." (emphasis supplied) Of course, the issue decided in that case was with respect to an accident which occurred prior to 14.11.1994 when S.147(b)(i) of the Act was amended incorporating the words "including owner of the goods or his authorised representative carried in the vehicle". When admittedly no goods have been carried in the vehicle in question at the relevant time, that amendment does not have any effect in so far as these cases are concerned. Further, the Supreme Court in Asha Rani's case held that "the judgment of this Court in Satpal Singh's case, therefore must be held to have not been correctly decided. Therefore, whatever be the nature of the vehicle, Satpal Singh's case cannot have any application in the light of Asha Rani's case. Satpal Singh's case cannot any more be relied on by this Court. Hence, the judgment impugned, so long as it mulcts the insurer with the liability to compensate the injured and dependents of the deceased cannot be sustained, contends the appellant. 5. It is contended by the claimants that the dictum laid down in Asha Rani's case overruling the decision in Satpal Singh's case does not have application to the facts situation of the case on hand, because Satpal Singh's case covers the case of a passenger in any type of vehicle. But Asha Rani's case is in respect of goods vehicle involved in an accident prior to the amendment in November, 1994. Satpal Singh's case is overruled only so long as it covers a goods vehicle. The vehicle involved in these cases is not a goods vehicle or a goods carriage. Necessarily Satpal Singh's case will have relevance in respect of vehicles other than goods vehicle or goods carriage. Satpal Singh's case is overruled only so long as it covers a goods vehicle. The vehicle involved in these cases is not a goods vehicle or a goods carriage. Necessarily Satpal Singh's case will have relevance in respect of vehicles other than goods vehicle or goods carriage. The facts disclosed in Asha Rani's case was in respect of a goods carriage and it was in dealing with facts relating to such cases that the decision in Satpal Singh's case was overruled. That means Satpal Singh's case cannot have any application in respect of a passenger carried in a goods vehicle. Even then the dictum laid down in the said case will have application to vehicles other than goods vehicle and so it can be applied to the case on hand since the vehicle involved in the accident is a tractor. If Satpal Singh's case is so applied, the appellant insurer is liable to compensate the claimants. So, there arises no question of reversing the judgment, the claimants contend. 6. But in the light of the decision in Asha Rani's case, it cannot be contended any longer that the principles laid down in Satpal Singh's case are good law. The law laid down in Satpal Singh's case was in respect of every types of vehicles or in other words, every passenger shall be covered by an Act policy. Since it has been held in Asha Rani's case that the law laid down in Satpal Singh's case is not good law, it cannot any longer be relied on, whatever be the nature or class of the vehicle. Consequently, Satpal Singh's case have no application in respect of a tractor as well. 7. The accident in question had happened after the amendment effected in 1994 to S.147(1)(b)(i) of the Act. The amendment brought in will have change only if the passenger in the goods vehicle is the owner of the goods or his authorised representative. As already found above the tractor involved in this case does not come within the definition of goods vehicle. Necessarily the amendment cannot have any impact irrespective of the date of accident. The amendment has no effect as far as vehicles other than goods vehicles are concerned. As already found above the tractor involved in this case does not come within the definition of goods vehicle. Necessarily the amendment cannot have any impact irrespective of the date of accident. The amendment has no effect as far as vehicles other than goods vehicles are concerned. The law remains same so far as other vehicles are concerned: It has been held in Asha Rani's case that a passenger in a goods vehicle including the owner of the goods or his representative will not be covered by the insurance policy. So, the change brought in by reason of the amendment is only confined to goods vehicle. In every other respect, the law remains as such inspite of the amendment in 1994 and a passenger in a vehicle which is not permitted to carry passengers, will not be covered by an Act only policy. 8. The decision reported in United India Insurance Co. Ltd. v. Appukuttan, (1995 (1) KLT 807) and relied on by the Tribunal cannot also have any application in these cases. It was the case of a pillion rider on a bike in a totally different background. 9. It is further contended by the claimants that Ext. B5 is a comprehensive policy and, therefore, it covers the passenger in the tractor. No terms in the contract of insurance is brought to our notice to accept the contention. 10. Therefore, the insurer cannot be held to be liable to compensate the passengers in a tractor by reason of Ext.B5 policy. Hence, the appeal has to be allowed to that extent making it clear that the award shall stand as such against the owner and the driver from whom the claimants can realise the amount awarded. The appeals are allowed as above. If the amount in deposit has not been paid to the claimants, necessarily it shall not be returned to the appellant.