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2003 DIGILAW 571 (MP)

NATIONAL INSURANCE CO. LTD. v. ANGORI BAI

2003-04-22

CHANDRESH BHUSHAN, S.S.JHA

body2003
S. S. JHA, CHANDRESH BHUSHAN, JJ. ( 1 ) THIS appeal is by the insurance company challenging the award passed by Claims tribunal in favour of respondent No. 1. Contention of appellant insurance company is that insurance company is not liable to pay the compensation for the death caused to a passenger in a goods carriage. Claimants have filed cross-objection for enhancement of compensation. ( 2 ) ADMITTED facts of the case are that the deceased Gariba was travelling in the goods carriage bearing No. MPW 9754, which was being driven by Raju, respondent No. 2 and owned by one Ajmer Singh, respondent No. 3. On account of overturning of the truck Gariba died on the spot. Thereafter claim has been filed. Contention of the counsel for the appellant insurance company is that insurance company is not liable to pay compensation in the case of goods carriage. Reliance has been placed by counsel for appellant in the judgment of New India Assurance Co. Ltd. v. Asha rani, 2003 ACJ 1 (SC) and judgment of oriental Insurance Co. Ltd. v. Devireddy konda Reddy, 2003 ACJ 468 (SC ). The apex Court while noticing the change in the definition of 'goods vehicle' occurring in section 2 (8) of the Motor Vehicles Act, 1939 and definition of 'goods carriage' in section 2 (14) of Motor Vehicles Act, 1988 has held that the difference in the language of 'goods vehicle' as appearing in the old act and 'goods carriage' in the new Act is of significance. A bare reading of the provisions make it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in the definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is 'solely for the carriage of goods'. Carrying of passengers in a goods carriage is not contemplated in the act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of Act mandates compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Carrying of passengers in a goods carriage is not contemplated in the act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of Act mandates compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that the compulsory coverage in respect of the conductors and drivers of the public service vehicle and the employees carried in a goods vehicle would be limited to the liability under the workmen's Compensation Act. There is no reference to any passenger in a 'goods carriage'. Therefore, it is held that the provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor. In view of the aforesaid two judgments the contention of insurance company is accepted and it is held that insurance company is not liable to pay compensation. ( 3 ) COUNSEL for owner submitted that unless policy was produced by the owner or insurance company, the insurance company cannot be absolved. The policy has not been produced by the owner and on failure to produce the policy by owner no conclusion can be drawn. Even otherwise, as held in para 10 in the judgment of Oriental Insurance Co. Ltd. , 2003 ACJ 468 (SC), it is clear that the provisions of the act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor. Thus, non-production of policy is not fatal in this case. In view of the legal position it was not necessary to prove and produce the policy. Therefore, we hold that insurance company is not liable to pay compensation. ( 4 ) WE have heard the cross-objections of the claimants. The Claims Tribunal has determined the dependency at Rs. 12,000 per annum in para 18 of the judgment and awarded only Rs. 1,50,000 towards compensation and further sum of Rs. 25,000 was awarded in other heads and Rs. 25,000 to the children, total sum of Rs. 50,000. Thus, the total compensation awarded is rs. 2,00,000. The Claims Tribunal has determined the dependency at Rs. 12,000 per annum in para 18 of the judgment and awarded only Rs. 1,50,000 towards compensation and further sum of Rs. 25,000 was awarded in other heads and Rs. 25,000 to the children, total sum of Rs. 50,000. Thus, the total compensation awarded is rs. 2,00,000. Counsel for claimants submitted that at the time of death deceased was 30 years of age. As such on the yearly dependency of Rs. 12,000 multiplier of 18 ought to have been applied by the Claims tribunal. On applying the multiplier of 18 claimants are entitled to Rs. 2,16,000 plus rs. 50,000 in various heads like loss of love and affection, loss of consortium, funeral expenses and other charges. Thus, the claimants are entitled for Rs. 2,66,000 with interest at the rate of 8 per cent per annum from the date of application. ( 5 ) QUANTUM of amount is enhanced, which shall be paid jointly and severally by owner and driver. Insurance company is not liable to pay the amount. Any amount deposited by the insurance company shall be recovered by insurance company from the owner of the vehicle. Appeal succeeds and is allowed without any orders as to costs. .