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2005 DIGILAW 636 (KAR)

ORIENTAL INSURANCE CO. LTD. v. PURUSHOTHAM T. M.

2005-09-26

H.G.RAMESH, P.VISHWANATHA SHETTY

body2005
P. VISHWANATHA SHETTY, J. ( 1 ) ORIENTAL insurance Co. Ltd. is the appellant in this appeal. In this appeal the appellant has called in question the correctness of the judgment and award dated 21. 4. 2005 made in M. V. C. No. 3696 of 2004 by the Motor accidents Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal') ( 2 ) FACTS in brief: one Nagendra, while travelling in a private car bearing registration No. MET 9341 in front of Srinivasa Saw Mill on m. C. Road near Shivapura, Maddur at about 5 a. m. on 23. 12. 2003 met with an accident and as a result of the said accident he died on the spot. The respondent Nos. 1 and 2 (hereinafter referred to as 'the claimants') are the father and mother respectively of the said Nagendra. Claimants filed a claim petition before the Tribunal claiming for award of compensation of rs. 10,00,000 (rupees ten lakh only ). The claim made by the claimants was resisted by appellant (hereinafter referred to as 'the insurance company') on various grounds. Tribunal on consideration of the evidence on record had found that the accident in question had taken place on account of rash and negligent driving of the car bearing registration No. MET 9341 by its driver, in which the deceased Nagendra was travelling. In the light of the said conclusion the claims Tribunal, on the basis of the material on record, made an award awarding a sum of Rs. 6,50,000 (rupees six lakh fifty thousand only) by way of compensation to the claimants. ( 3 ) IN this appeal, Mr. Poonacha, learned counsel appearing for the insurance company, while fairly did not challenge the quantum of compensation awarded by the claims Tribunal but strongly urged that the deceased being an occupant in a private car, the Tribunal has seriously erred in law in fastening the liability on the insurance company. According to learned counsel that in the absence of additional premium having been paid to the insurance company to cover the risk of the passengers, the insurance company could not have been made liable to satisfy the award passed by the Tribunal. According to learned counsel that in the absence of additional premium having been paid to the insurance company to cover the risk of the passengers, the insurance company could not have been made liable to satisfy the award passed by the Tribunal. In other words, it is his submission that the risk of an occupant/passenger in a private car is not compulsorily required to be covered under section 147 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') and there being no additional premium paid by the insured to cover the risk of the occupants, the insurance company could not have been made liable to pay compensation to the claimants, by the Tribunal. In support of his submission, the learned counsel relied upon the decision of this court in the case of New India Assurance Co. Ltd. v. Kusum, 2003 ACJ 1992 (Karnataka) and also the unreported decision of this court rendered in the case of Veerappa v. Sarmuddin, m. F. A. No. 2209 of 1995; decided on 26. 5. 1997. ( 4 ) WE have gone through the judgments relied upon by the learned counsel. In our view, there is no merit in this appeal. It is necessary to point out that Tribunal in the impugned order has fastened the liability on the insurance company following the decision of this court in the case of Ramachandra v. Shantaram, 2005 ACJ 462 (Karnataka), rendered by one of us (H. G. Ramesh, J. ). In the case of Ramachandra (supra), this court, after elaborately considering the law on the subject and more particularly the Full Bench decision of kerala High Court in the case of Oriental insurance Co. Ltd. v. Ajayakumar, 1999 acj 1499 (Kerala), has held that under the provisions of Motor Vehicles Act, 1988 the insurer is compulsorily required to cover the risk of the passengers of a private car or of any passenger carrying vehicle including a two-wheeler. Ltd. v. Ajayakumar, 1999 acj 1499 (Kerala), has held that under the provisions of Motor Vehicles Act, 1988 the insurer is compulsorily required to cover the risk of the passengers of a private car or of any passenger carrying vehicle including a two-wheeler. It is useful to refer to the observation made in the said judgment at para 15, which reads as hereunder:" (15) In view of the change in law as explained by this court and the High courts of Kerala, Madras and Madhya pradesh in the above referred decisions, i hold that an insurer under the new Act is compulsorily required to cover the risk of passengers of a private car or of any passenger carrying vehicle including a two-wheeler. . . " ( 5 ) IT is also useful to refer to the observation made by Full Bench of Kerala High court in the case of Ajayakumar, 1999 acj 1499 (Kerala), at paras 11, 12 and 13 of judgment, which reads as follows:" (11) It is in the light of the above we have to examine the effect of deletion of proviso (ii) while enacting section 147 of the Motor Vehicles Act, 1988. Clause (b) (i) of section 147 now stands limited only by proviso (i) and also the contractual liability which was incorporated originally as proviso (iii) in section 95 (1) (b), but as proviso (ii) in section 147 (1) (b ). Proviso (i) deals with only the case of employees. The liability referred in clause (i) would apply to the death of or bodily injury to 'any person'. Since the limitation brought under proviso (ii) that is, by excluding liability in respect of death of or bodily injury to a passenger except a passenger who is carried for hire or reward or by reason of or in pursuance of contract of employment is no longer available in the statute. Therefore, it has to be taken that the term 'any person' referred in clause (b) (i) would take in all passengers for hire or reward or otherwise. Therefore, it has to be taken that the term 'any person' referred in clause (b) (i) would take in all passengers for hire or reward or otherwise. We do not find any merit in the contention raised by learned counsel for the appellant that if the term 'any person' in clause (b) (i) would take in passengers in private vehicle carried in for hire or reward then it was unnecessary for the legislature to bring in the amendment under Act 54 of 1994 to include owner of the goods or his authorised representative carried in the vehicle in clause (i ). As was clearly observed by the Supreme Court in Mallawwa v. Oriental Insurance Co. Ltd. , 1999 ACJ 1 (SC), it would not be proper to consider a goods vehicle as a vehicle in which passengers are carried normally. It was under these circumstances, an amendment was required to include the owner of the goods or his authorised representative carried in the vehicle by specific amendment in clause (i ). (12) In Road Transport Co. v. Bhan singh, 1998 ACJ 1101 (SC), a claim put forward for compensation in respect of death of 35 passengers travelling in a bus came up for consideration. The contention raised on behalf of the appellant was that the claim in respect of the death of the passengers in the bus should be considered under section 95 (1) (b) (i) and if that be so, the limitation regarding the quantum of compensation provided under section 95 (2) (b) (ii) will not be applicable. It was submitted that wording of section 95 (1) (b) (i) is very wide to include a passenger in a bus, since the words used are 'any person'. This contention was rejected by the Supreme court. It was held that section 95 (1) (b) (ii) being a specific provision made in respect of passengers of a public service vehicle, it is that provision which is applicable in the case and not the general provision contained in section 95 (1) (b) (i), when the insured incurs liability in respect of the passengers travelling in his public service vehicle. As mentioned earlier it was proviso (ii) which excluded passengers in private vehicle from the net of section 95 (1) (b) (i), since that proviso is not available in section 147 of the Motor Vehicles Act, 1988, the general provision in clause (i) has to be taken as applicable to passengers carried in private vehicles not for hire or reward. A similar view was taken by madhya Pradesh High Court in Oriental insurance Co. Ltd. v. Radha Rani, 1999 acj 1524 (MP ). It was held that an Act policy under section 147 would cover occupant of a jeep who is carried without hire or reward. (13) We, therefore, fully agree with the view taken in Appukuttan's case, 1995 acj 888 (Kerala), that a gratuitous passenger in a private vehicle is also covered by the Act policy under section 147 of the Motor Vehicles Act, 1988. . . " (Emphasis supplied) ( 6 ) WE are in full agreement with the view expressed by this court in the case of ramachandra, 2005 ACJ 462 (Karnataka) and also by the Full Bench of Kerala High court in the case of Ajayakumar, 1999 acj 1499 (Kerala ). Further, it is also necessary to point out that the High Court of madras in case of New India Assurance co. Ltd. v. Vijay Kumar, 2003 ACJ 523 (Madras) and also the decision of the High court of Madhya Pradesh in the case of oriental Insurance Co. Ltd. v. Radha Rani, 1999 ACJ 1524 (MP), have also taken the similar view. ( 7 ) IN the light of what is stated above, we are of the view that the two single judge decisions of this court in the case of kusum, 2003 ACJ 1992 (Karnataka) and in the case of Veerappa, M. F. A. No. 2209 of 1995; decided on 26. 5. 1997, do not lay down correct law. In the case of Kusum (supra), the learned single Judge has proceeded to take the view that the insurance company is not required to cover the risk of the gratuitous passenger in a private vehicle relying upon the judgment of Supreme Court in the case of Ramesh Kumar v. National Insurance Co. Ltd. , 2001 ACJ 1565 (SC); in the case of New India Assurance co. Ltd. , 2001 ACJ 1565 (SC); in the case of New India Assurance co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC) and also the decision of Orissa High court in the case of Jibanananda Mohanty v. Artatrana Misra, 1992 ACJ 851 (Orissa) and the decision of Andhra Pradesh High court in the case of Oriental Fire and Genl. Ins. Co. Ltd. v. M. Bhanumathi, 1990 ACJ 1043 (AP ). In our view, the learned single judge has failed to notice that the question that came up for consideration before the apex Court in the case of Ramesh Kumar (supra) and also in the case of Asha Rani (supra) was with regard to the liability of the insurance company to cover the risk of a passenger travelling in a goods carrying vehicle. Similar is the position in the case of the decision in Jibanananda Mohanty (supra) and in the case of M. Bhanumathi (supra ). In the case of Ramachandra, 2005 acj 462 (Karnataka), this court, as noticed by us earlier, has referred to the judgment of the Supreme Court in the case of Asha rani (supra) and has taken the view that the said decision is of no assistance to the insurance company to avoid its liability to cover the risk of a passenger travelling in a private car. Therefore, we are of the view, the decision of this court in the case of Kusum (supra) relied upon by Mr. Poonacha, does not lay down correct law and the same is hereby overruled. Further, the decision rendered by the learned single judge of this court in the case of Veerappa (supra) also does not lay down the correct law, as the change in the law brought out by the provisions of new Act of 1988 was not considered by the learned single Judge in the said case. Therefore, we are unable to subscribe to the view expressed by the learned single Judge of this court in the case of Veerappa (supra ). Therefore, the view taken by this court in the case of veerappa (supra) that insurance company is not liable to cover the risk of passenger in a private car, does not lay down the correct law and, therefore, the same is hereby overruled. Therefore, the view taken by this court in the case of veerappa (supra) that insurance company is not liable to cover the risk of passenger in a private car, does not lay down the correct law and, therefore, the same is hereby overruled. ( 8 ) IN the light of the discussion made above, we have no hesitation to reiterate that the view taken by one of us (H. G. Ramesh, J.) in the case of Ramachandra, 2005 ACJ 462 (Karnataka), lays down the correct legal position. Therefore, the above appeal is liable to be dismissed and accordingly it is dismissed. The amount deposited by the appellant before this court is directed to be transferred to the tribunal. Appeal dismissed. --- *** --- .