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2005 DIGILAW 239 (HP)

NEW INDIA ASSURANCE COMPANY v. JAMNA DEVI

2005-07-15

SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—The present appeal, under Section 173 of the Motor Vehicles Act, is directed against the award dated 29.11.1996, of the Motor Accident Claims Tribunal, Bilaspur, whereby the appellant, i.e. New India Assurance Company, has been fastened with the liability to pay compensation money, rejecting its plea that the deceased was an unauthorized passenger on board the truck, and therefore, it was not liable to pay any compensation. 2. Facts may be summed up thus. Truck No. HP-23-0917 belonged to respondent No. 5 Krishan Chand. Its driver was respondent No. 6-Balwant Singh. On 30.1.1993, the truck, while carrying bricks from Nihari to Dadhol, met with an accident. As a result of the accident, one Baldev Singh, resident of village Bachherin, Pargana Tiun, Tehsil Ghumarwin, aged 39 years and employed as a Clerk in Education Department died. Respondents No. 1 to 4, being widow, mother and minor children of said Baldev Singh filed petition claiming compensation. One more person Tirath Ram also died in that accident. The bricks, being carried in the truck, allegedly belonged to deceased Baldev Singh and said Tirath Ram. It was alleged that the two persons were on board the truck in the capacity of the owners of the goods, being carried therein. Accident allegedly took place due to rash or negligent driving of the truck by respondent No. 6. Insurer admitted that deceased Baldev Singh and another man named Tirath Ram, were traveling by the truck as the owners of the bricks, which were being carried in it, when the accident took place. The insurer, i.e. New India Assurance Company, with which the truck was insured by its owner, namely Krishan Chand-respondent No. 5, took various defences to deny its liability. One of the defences was that the deceased were on board the truck as gratuitous and unauthorized passengers and their risk was not covered by the Insurance Policy. 3. The learned Tribunal framed various issues, including one pertaining to the plea of the appellant that it was not liable to pay the compensation money. One of the defences was that the deceased were on board the truck as gratuitous and unauthorized passengers and their risk was not covered by the Insurance Policy. 3. The learned Tribunal framed various issues, including one pertaining to the plea of the appellant that it was not liable to pay the compensation money. Parties went to trial, at the end whereof the Tribunal held that the accident took place, due to rash or negligent driving of the truck by its driver and that the deceased was on board the truck in the capacity of owner of the bricks, being carried therein, and so he could not be said to be a gratuitous passenger. Consequently the plea of the appellant was rejected and it was ordered that the appellant in the capacity of the insurer, would be liable to pay the compensation, which was assessed at Rs. 4,52,000/ - and on which interest was also ordered to be paid at the rate of 12% per annum. 4. Insurers grievance is that the evidence on record shows that the deceased was a gratuitous passenger and hence it (appeallant) could not have been ordered to pay the compensation money. 5. During the course of hearing of the appeal, it was argued that the dependants of Tirath Ram, who was also travelling by the truck, in the capacity of the co-owner of the bricks, also filed a petition, claiming compensation and in that petition also the insurer took the same plea, as in the present case and the said plea having not found favour with the Tribunal, appeal was filed in this court and this court accepted the plea and held that the insurer was not liable, in view of the law laid down by the Honble Supreme Court in New India Assurance Company v. Asha Rani and others, [(2003) 2 SCC 223]. A copy of the judgment delivered by this Court in the other case i.e. the case pertaining to compensation for the death of Tirath Ram, was submitted by the learned counsel for the Insurance Company, which has been placed on the record. The number of that other appeal is FAO (MVA) No. 110 of 1997. A copy of the judgment delivered by this Court in the other case i.e. the case pertaining to compensation for the death of Tirath Ram, was submitted by the learned counsel for the Insurance Company, which has been placed on the record. The number of that other appeal is FAO (MVA) No. 110 of 1997. A reading of this judgment shows that the appeal of the Insurance Company against the award of the Tribunal, holding the Insurance Company liable to pay compensation for the death of Tirath Ram, has been accepted, in view of the law laid down by the Honble Supreme Court in New India Assurance Co. Ltd. v. Asha Rani and others, [(2003) 2 SCC 223)] and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others, [(2003) 2 SCC 339]. 6. The Honble Supreme Court in Asha Ranis case (supra) interpreting the term any person occurring in Section 147(l)(b)(i) of the Motor Vehicles Act, 1988, prior to the amendment of 1994, has held that the term does not include the owner of the goods or his authorized representative carried in the vehicle, nor does it include any passenger. It has further been held that the term any person has been used in the said provision, in the context of third party. Admittedly, the accident took place before the amendment was carried out to the aforesaid provision, in the year 1994, whereby words including owner of the goods or his authorized representative were suffixed to the term any person occurring in the aforesaid provision. In view of the aforesaid authority of the Honble Supreme Court, as also the judgment of this court in FAO No. 110 of 1997, whereby in a case of claim for the death of another person, who was also on board the truck, alongwith the deceased in this case, in the capacity of the co-owner of the bricks, the insurer has been held not liable to pay the compensation, the appeal is accepted, the judgment of the Tribunal to the extent it holds the insurer liable to pay the compensation is set aside. 7. 7. As a sequel to the above discussion, it is held that the Insurance Company is not liable to indemnify the insured for his (insureds) liability for payment of compensation to the claimants, i.e. the dependants of the deceased person in this case, and therefore, the appeal is accepted and the finding of the learned Tribunal, holding the appellant liable and directing it to pay the compensation, is set-aside. 8. However, inspite of the acceptance of the appeal, the insurer shall have to satisfy the award and thereafter it may recover the compensation money together with interest etc. from the insured, in view of the mandate of the Honble Supreme Court in National Insurance Company Limited v Baljeet Kaurand others, [(2004) 2 SCC 1], the relevant portion of which is reproduced below:— "21. The upshot of the aforementioned discussions is that instead and in place of the insurer the. owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall be prospective effective. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh, (2000) 1 SCC 237. The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would no be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding." 9. Consequently, it is ordered that the insurer shall satisfy the award and thereafter it may recover the compensation money from the insured. The appeal is disposed of accordingly. Appeal disposed of.