Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 405 (CAL)

Asit Pattanayak v. Oriental Insurance Co. Ltd.

2006-07-10

ARUNABHA BASU, PRATAP KUMAR RAY

body2006
Judgement PRATAP KUMAR RAY, J. :- Heard the learned Advocate appearing for the parties. 2. Assailing the judgment and order dated 28th November, 2003 passed by the learned Motor Accident Claims Tribunal at Alipore in M.A.C. Case No. 420 of 2000, this appeal has been preferred by the claimant of the application filed under Section 166 of the Motor Vehicles Act, 1988. The claimant suffered 75% disablement due to the accident while he was returning back in a Mini Truck, which collided with another truck. Though loss of income was determined as Rs. 2500/ per month, but considering such travel of the claimant in the Mini Truck concerned as a gratuitous passenger, learned Tribunal below exempted the Insurance Company from their liabilities to satisfy the award as passed by applying Section 147 (1) Clause (b) (i) of the West Bengal Motor Vehicles Act, 1988 and thereby liability was fixed upon owners of both the two trucks, namely, Mini Truck and Truck in question. Such adjudication is under challenge in this appeal in the ground of misinterpretation of statutory regulation on reflection of evidence on record. The owners of both the two vehicles did not contest the matter before the learned Tribunal below. Both the two trucks were insured under the same Insurance Company and admittedly the Insurance Company took leave under Section 170 of said Act to agitate all the points as the respective owners did not contest the case. The learned Advocate for the appellant submits that from the material evidence on record when the claimant in the application contended that the concerned Mini Truck was hired by him for selling fire woods to the nearby market, which is his business to earn livelihood and when in the evidence it remains unchallenged in cross-examination about his return by said Truck, the learned Tribunal ought to have fixed the liability of the Insurance Company by holding that the claimant was travelling in the said Mini Truck as owner of the goods for which he hired the vehicle in terms of Section 147 (1) Clause (b) (i) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act"). It has been further urged that even if for argumendo it is presumed that the claimant was a gratuitous passenger in the Mini Truck, still then the Insurance Company who covered the risk liability of the third party in respect of the other truck ought to have been directed to make payments of compensation money. Fixing of the liability upon the owners accordingly as per his submission was not lawful and justified. The learned Advocate for the appellant further has urged that even if for argumendo it is assumed that the claimant was a gratuitous passenger of the Mini Truck, hence, the insurer of the Mini Truck had no liability to bear the compensation award and even the third party's liability so far as the Insurance Company who has covered the risk in respect of the other truck is concerned involved in the accident lawfully could not be fixed, but following the case National Insurance Co. Ltd. v. Baljit Kaur and Ors., reported in 2004 (1) TAC 366 (SC) : AIR 2004 SC 1340 , the learned Tribunal below ought to have directed the Insurance Company to pay the compensation amount as fixed fixing the liability to the owners of the vehicles with a rider to realize the same from the owners. 3. The Insurance Company has opposed the appeal by contending, inter alia, that the learned Tribunal was justified to follow the case New India Assurance Co. Ltd. v. Asha Rani, reported in 2003 (1) TAC 1 (SC) : ( AIR 2003 SC 607 ) in view of the statutory provision of law in terms of Section 147 whereby and whereunder by the amended provision "any person" was qualified with the inclusion of words "the owner of the goods or the authorized representative" for fixing the liability upon the owners by considering the claimant as a gratuitous passenger. It has been urged that the judgment of Baljit Kaur ( AIR 2004 SC 1340 ) (supra) has no applicability in the instant case factually and legally in both ways and the same is not a precedent at all to conclude that the statutory provision of Section 147(1) clause (b)(i) so far as the inclusion of the word "including owner of the goods or his authorized representative" should be considered as effective prospectively from the date of judgment passed in Baljit Kaur (supra) that is with effect from 6th January, 2004 as in the event of considering the same in that angle, the same would be nothing but re-writing of the statute by the Court, which is not legally permissible under the law. The learned Advocate for the Insurance Company has further urged that the loss of income has not been properly dealt with and assessed as there is possibility of running the business of the fire woods with 75% disablement finding, even if is accepted by other person being engaged by the claimant concerned and those points have not been dealt with by the learned Tribunal below. 4. Having regard to the rival contentions of the parties the points have emerged for adjudication herein are to this effect 1. Whether the judgment of Asha Rani ( AIR 2003 SC 607 ) (supra) as applied by the learned Tribunal below to dislodge the liability of the Insurance Company on the finding that the claimant was a gratuitous passenger of the Mini Truck as legal and proper on the reflection of the judgment of the Apex Court passed in Baljit Kaur ( AIR 2004 SC 1340 ) (supra), wherein on identical fact the Apex Court granted relief directing the Insurance Company to pay with a rider to realize the same from the owner. 2. Whether the judgment passed in Baljit Kaur (supra) could be considered as legislation by the Court about effect of the statute under Section 147(1) clause (b)(i) so far as the fixing of liability of the Insurance Company to pay first and thereafter to realize the amount from the owner goods carriage where the finding is concluded to his effect that the concerned passenger was gratuitous passenger and not the owner of the goods or representative. 3. 3. Is the judgment of Baljit Kaur (supra) is the binding precedent upon this Court and on that reflection the learned Tribunal below was wrong not to fix the liability upon the Insurance Company with a rider to realize it from the owner so far as the compensation amount is concerned. Whether from the evidence on records oral and documentary evidence the finding of the learned Tribunal below that the claimant was a gratuitous passenger in the Mini Truck was satisfied and if not so, what relief to the claimant. 5. Whether the percentage of physical inability or disablement as fixed by the learned Tribunal below on the material evidence on record to the extent of 75% is justified and if not then what should be the extent of such disablement. 6. Whether if the answers of the aforesaid points go against the present appellant, the Insurance Company who covered risk liability of the concerned truck, which admittedly was also the offending vehicle could be saddled with the liability of payment of 50% of the awarded money considering his liability as a third party liability in view of the extent of claim as accident occurred while travelling in a Mini Truck. 7. To other reliefs, if any. 5. For the purpose of answering the point Nos. 1 and 2 above, the statutory provision is required to be dealt with. It appears from the judgment under appeal passed by the tribunal that the learned Tribunal below applied the statutory provision of Section 147(1) clause (b)(i) to identify the meaning of gratuitous passenger and its liability following the judgment of Asha Rani ( AIR 2003 SC 607 ) (supra)) and thereby held that the claimant was a gratuitous passenger and accordingly the Insurance Company had no liability. At the pre-amended stage of Section 147(1) clause (b)(i) that is prior to 1994 amendment, the word "injury to any person including the owner of the goods or his authorized representative carried in the vehicle" was not in the statute as the same was included in substitution of the word "injury to any person" with effect from 14th November, 1994 by Act 54 of 1994. In the case New India Assurance Co. In the case New India Assurance Co. Ltd. v. Satpal Singh, reported in 2000 ACJ 1 : ( AIR 2000 SC 235 ) the word "injury to any person" was defined and judicially explained by the Apex Court to mean to any person including the gratuitous passenger of the concerned offending vehicle to fix the liability of the Insurance Company. However, this got a turn in view of the amendment under Section 147(1) clause (b)(i) by substituting the word "injury to any person" by the word "injury to any person including the owner of the goods or his authorized representative carried in the vehicle" as introduced with effect from 14th November, 1994 in the statute. In Asha Rani (supra), the Apex Court accordingly held that in view of the amended provision, a gratuitous passenger of the goods carriage is not entitled to claim compensation from the Insurance Company but the owner of the goods and/or his authorized representative who hired the said vehicle, would be entitled to claim compensation against the Insurance Company. In Asha Rani (supra), the Apex Court accordingly has cleared the entire issue putting an emphasis on the statutory interpretation of the word "any other person including the owner of the goods or his authorized representative". This judgment was pronounced on 3rd December, 2002. Subsequently, in Baljit Kaur (supra), a point was raised before Apex Court, namely, that the concerned tribunal following the case Satpal Singh (supra) passed an award fixing the liability upon the Insurance Company so far as the gratuitous passenger was concerned to goods vehicle was wrong finding in view of the amendment of the Motor Vehicles Act, 1988 with effect from 14th November, 1994 by substituting the word any other person with a rider and the judgment pronounced in Asha Rani (supra). It was urged accordingly that the Insurance Company had no liability to pay. It was urged accordingly that the Insurance Company had no liability to pay. The Apex Court dealt with the matter in details and held that the Insurance Company had no liability and to that effect the statutory provision of Section 147 so far as the amendment is concerned with reference to the substitution of word "including of the owner of goods or the authorized representative" were interpreted by confirming the views of Asha Rani ( AIR 2003 SC 607 ) (supra), which means that the Insurance Company was not liable for the injury as to be sustained and/or even for the death if occurs due to the accident of a passenger who is a gratuitous passenger in a goods vehicle. But the Apex Court in paragraph 21 in Baljit Kaur ( AIR 2004 SC 1340 ) (supra) passed a view that as on the date when the judgment of the tribunal thereto was passed, which was the subject-matter in that case before Apex Court, there was no amendment of the provision of Section 147 clarifying the liability of the Insurance Company so far as the gratuitous passenger of a goods vehicle is concerned, that the Insurance Company would pay the awarded amount but the same could be realized from the owner. The relevant paragraph 21 of the said judgment reads to this effect : "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 that 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 have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh ( AIR 2000 SC 235 ) (supra). The said decision has been overruled only in Asha Rani's ( AIR 2003 SC 607 ) (supra). We, therefore, are of the opinion that the interest of justice will be sub-served 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. We, therefore, are of the opinion that the interest of justice will be sub-served 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 not 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 the owner or driver or the vehicle involved in the accident inasmuch as can be resolved by the Tribunal is such a proceeding." 6. Now the issue involved herein as framed by the Court whether the finding in Baljit Kaur ( AIR 2004 SC 1340 ) (supra) in paragraph 21 is a binding precedent being the law declared by the Apex Court under Art. 141 of the Constitution of India or it was simply a judgment passed by the Apex Court in exercise of the power under Art. 142 of the Constitution of India on considering the special factual matrix of the case thereto. The learned Advocate for the appellant has emphasized the point that the same is a binding precedent to this Court and the same also was the binding precedent upon the learned Tribunal below and as such, the judgment under appeal should be set aside and quashed by modifying it on fixation of the liability upon the Insurance Company to pay and thereafter to realize it from the owner. In support of the contention that Baljit Kaur (supra) is a binding precedent before this Court, the learned Advocate for the appellant has also referred the judgment of the Madras High Court passed in the case M/s. United India Insurance Co. In support of the contention that Baljit Kaur (supra) is a binding precedent before this Court, the learned Advocate for the appellant has also referred the judgment of the Madras High Court passed in the case M/s. United India Insurance Co. Ltd., Trivannamalai and another v. Selvam and others, reported in 2006 (1) TAC 649 (Mad), a judgment of the Division Bench of Madras High Court. The relevant paragraph being paragraphs 9 and 10 of the said report read to this effect : "9. Although the above view was taken in favour of the Insurance Company, it was ultimately held that the law was not clear so long and so the legal position as clarified in the judgment shall have only prospective effect. Therefore, it was held in that case, the interest of justice will be sub-served if the appellant is directed to satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle. 10. Thus it is made clear that even though the position of law in favour of the Insurance Company, that may have only prospective effect from the date of judgment of this case, viz., 6th January, 2004 and for cases of erstwhile accidents, the position of law is that the Insurance Company shall have to pay and recover from the owner of the vehicle." 7. To identify as to whether the findings and observations of Baljit Kuar ( AIR 2004 SC 1340 ) (supra) is a binding precedent for applying the same in the present case now to be analyzed and looked into. In the Baljit Kuar (supra) the factual matrix was to this effect that the learned Tribunal awarded the compensation when Section 147(1)(b)(i) so far as the substitution of the word "injury to any person" was not at all effected and accordingly Satpal Singh ( AIR 2000 SC 235 ) (supra) was followed. But subsequently when the matter was agitated before the Apex Court, there was an amendment of statutory provision and also there was a finding that the views of Satpal Singh (supra) was not right as decided in the case Asha Rani (supra). But subsequently when the matter was agitated before the Apex Court, there was an amendment of statutory provision and also there was a finding that the views of Satpal Singh (supra) was not right as decided in the case Asha Rani (supra). On that factual matrix the Apex Court granted relief to the parties thereof with the aforesaid findings and observations, but Apex Court did not deviate from the findings of Asha Rani (supra) on the issue that the Insurance Company had no liability in respect of the gratuitous passenger of the goods vehicle. Only for realization of the money a procedure followed by the Apex Court directing the Insurance Company to pay and thereafter to realize it from the owner. From the very language as used by the Apex Court in paragraph 21 of Baljit Kaur ( AIR 2004 SC 1340 ) (supra), it appears that the said statutory provision as interpreted, namely, non liability of the Insurance Company so far as the gratuitous passengers are concerned in a goods vehicle was not at all disturbed but the same was confirmed. But so far as the realization of the compensation amount, the Insurance Company was directed to pay first and thereafter to realize it from the owners, which as per reading of this court does not mean casting of liability upon the Insurance Company but a mode or a procedural steps for immediate payment of money on the special facts of the case as the claimant suffered due to long life of the litigation from the learned Tribunal to Apex Court. This relief as granted cannot be construed as a proposition of law. But granting of relief by the Apex Court in the said manner was within the domain of Art. 142 of the Constitution of India as the Apex Court is empowered to pass any order for complete relief and justice. The Art. 142 read to this effect : "142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. The Art. 142 read to this effect : "142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. (1) The Supreme Court in exercise of his jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe." 8. But the Article 141 is the provision where the Apex Court on interpreting the statutory provision by interpretation of the words of a statute either in the angle of the social justice concept, economic justice orientation and/or in the angle of fundamental rights of the citizen concerned settles the law and once it is done in this way it becomes a law of the land in terms of Art. 141 of the Constitution of India and the same is a binding precedent with full force and vigour upon all the Courts, Tribunals, Administrative Bodies and other quasi-judicial authorities of India. Article 141 accordingly has been couched with that language, which reads to this effect : "141. Law declared by Supreme Court to be binding on all Court. The law declared by the Supreme Court shall be binding on all Courts within the territory of India." 9. On a careful reading of the finding of paragraph 21 of Baljit Kaur ( AIR 2004 SC 1340 ) (supra) we are of the view, with due respect to My Lords of Apex Court who delivered the judgment of the Apex Court that the same was within the domain of the procedure field to grant relief by the Apex Court, limited to the parties thereof being an order passed under Art. 142 of the Constitution of India. The issue can be considered in another angle also on reflection of the test of a judgment as binding precedent on the reflection of the judgment of the Apex Court itself. The issue can be considered in another angle also on reflection of the test of a judgment as binding precedent on the reflection of the judgment of the Apex Court itself. In a Constitution Bench judgment passed in the case State of Punjab v. Baldev Singh, reported in (1999) 6 SCC 172 : ( AIR 1999 SC 2378 ) relying upon the earlier judgment passed in the case C. I. T. v. Sun Engineering Works (P) Ltd., reported in (1992) 4 SCC 363 : ( AIR 1993 SC 43 ), the Apex Court held "a decision is an authority for what it decides and not that everything said constitutes a precedent. The Courts are obliged to employ" "intelligent technic" in the use of precedent bearing it in mind that "a decision of the Court takes it colour from the question involved in the case in which it was rendered". Furthermore, in the case Sun Engineering ( AIR 1993 SC 43 ) (supra) in paragraph 39 the Apex Court held "the judgment must be read as a whole and the observation from the judgment has to be considered in the light of the question which were before the Court, a decision takes it colour from the question involved - the Court must carefully try to ascertain the real principle laid down by the decision and not to - pick out words and sentences from the judgment divorced from the text of the question under consideration by the Court to support those reasoning". 10. Even Three Judges' Bench of the Apex Court prior to the Full Bench judgment of Baldev Singh ( AIR 1999 SC 2378 ) (supra) in the case Regional Manager v. Pawan Kumar Dubey, reported in AIR 1976 SC 1766 , which has also been followed in the year 2000 in the case Chandra Prakash Shahi v. State of U. P., reported in AIR 2000 SC 1706 held "it is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon the facts which may appeal to be similar. Once additional or different facts can make a world of difference between conclusion in two cases, even the same principle are applied in each case to similar fact". 11. Once additional or different facts can make a world of difference between conclusion in two cases, even the same principle are applied in each case to similar fact". 11. Having regard to the settled legal position about the test to identify the judgment as precedent as enunciated by the Apex Court in the aforesaid judgment as referred to, we are now analyzing the present fact on issue as to whether the finding and observation of paragraph 21 of Baljit Kaur ( AIR 2004 SC 1340 ) (supra) so far as direction to the Insurance Company to pay first and thereafter to realize from the owners could be considered as a precedent. The present case in hand which we are now adjudicating will give answer whether the factual matrix of both the two cases, namely, the present case in hand and the judgment as passed in Baljit Kaur (supra) were identical. From the case record of this case it appears that the accident happened at post amendment stage of Motor Vehicles Act, namely, after 14th November, 1994 when already Section 147(1)(b)(i) relating to the word "injury to any person" as was earlier appearing in the pre-amended Motor Vehicles Act got substituted by the word "injury to any person including owner of the goods or his authorized representative carried in the vehicle". From the record it further appears that the learned Tribunal below on the basis of interpretation of the amended provision of S. 147 aforesaid and relying upon the Asha Rani ( AIR 2003 SC 607 ) (supra), which held that Satpal Singh ( AIR 2000 SC 235 ) (supra) was not a good law, accordingly exempted the Insurance Company from the liability to pay as the learned Tribunal below came to a positive finding that the claimant was a gratuitous passenger of the Mini Truck, a goods vehicle. In the case Baljit Kaur (supra) the factual matrix was completely tangent. There the accident occurred at pre-amended stage and at that time law declared in Satpal Singh (supra) fixing liability for injury to any person even to the gratuitous passenger upon the Insurance Company who insured the vehicle was existing and such issue as decided by the learned Tribunal in that angle. There the accident occurred at pre-amended stage and at that time law declared in Satpal Singh (supra) fixing liability for injury to any person even to the gratuitous passenger upon the Insurance Company who insured the vehicle was existing and such issue as decided by the learned Tribunal in that angle. But when the matter came up in the Apex Court, there was an argument advanced by the Insurance Company to have the exemption from their liability following the amended provision of statute read with the judgment of the case Asha Rani (supra) passed by the Apex Court and the Apex Court in Baljit Kaur (supra) case accordingly accepted the contention of the Insurance Company by confirming view of Asha Rani (supra) case that they had no liability for gratuitous passenger of the goods vehicle as they are not accepting any premium in terms of the insurance policy so far as the liability of gratuitous passenger is concerned. Hence, on a bare reading of both the two cases Baljit Kaur (supra) and the present case in hand it appears that the facts are not identical, rather the facts are completely opposite. In one case, the accident occurred prior to amendment in the year 1994 another at the post-amendment period when law came into effect with substitution by exempting the Insurance Company from their liability for gratuitous passenger. Accordingly, the relief as granted in Baljit Kaur (supra) cannot be said as a binding precedent on the reflection of the judgment as already referred to as there is difference of factual matrix as well as effect of statutory provision of law. 12. Hence, in that angle Baljit Kaur ( AIR 2004 SC 1340 ) (supra) with due respect so far as the finding of Insurance Company should pay first and thereafter would realize the same from the owners, has no binding force and effect upon this Court and finding of the learned Tribunal accordingly cannot be said as illegal and unjustified to that extent. This Court is of the view that the learned Tribunal rightly followed the Asha Rani ( AIR 2003 SC 607 ) (supra) for identifying the liability of the Insurance Company with reference to the gratuitous passenger of the goods vehicle. 13. This Court is of the view that the learned Tribunal rightly followed the Asha Rani ( AIR 2003 SC 607 ) (supra) for identifying the liability of the Insurance Company with reference to the gratuitous passenger of the goods vehicle. 13. Another point to be considered herein which is also within the field of power of Court, namely, whether the Court of Law can pass any order/decision giving effect to a statutory provision prospectively from a date of a judgment though the statute have given effect of such by notification earlier. To pose the question very lucidly we are explaining that the concerned Motor Vehicles Act so far as Section 147, which carries the no liability of the Insurance Company of gratuitous passenger of a goods vehicle was already into the statute book with effect from 14th November, 1994 by substitution of Act 54 of 1994 and as such, its effect to be construed with effect from 14th November, 1994. Now if the argument of the learned Advocate for the appellant is accepted that even if there is an amendment of Section 147 so far as no liability of the gratuitous passenger of the goods vehicle but still applying Baljit Kaur (supra) case where direction to the Insurance Company to pay the amount first and thereafter to realize it from the owner was passed, could be considered by this Court as if the statutory effect of Section 147 so far as its substitution under Act 54 of 1994 got its effect from the date of judgment of Baljit Kaur ( AIR 2004 SC 1340 ) (supra) that is with effect from 6th January, 2004. We are extremely afraid to accept such submission as made by the learned Advocate for the appellant. In accepting such submission then we have to accept the proposition of law that the Court of Law has the power to rewrite the statute and also to pass any order about its effect when there is no ambiguity in the statutory provision about the effect when more particularly it has been clarified by the Apex Court itself in Asha Rani ( AIR 2003 SC 607 ) (supra). It is a settled law that the Court of Law cannot step into the shoes of the legislature. It is a settled law that the Court of Law cannot step into the shoes of the legislature. It is also a settled law that when there is no ambiguity in a statutory provision, a Court of law cannot interpret it otherwise, as the same would be nothing but judicial legislation, which is not permissible. In the case British India General Insurance Co. Ltd. v. Captain Itbar Singh, reported in AIR 1959 SC 1331 , where Supreme Court refused to add the word "also" after the words on any of the following grounds in Section 96(2) of the Motor Vehicles Act, 1939 by holding "this, the rules of interpretation, do not permit us to do unless the section as it stands is meaningless or of doubtful meaning". Lord Loreburn, L. C. in the case of Vickers Sons and Maxim Ltd. v. Evans, reported in (1910) AC 444, p. 445 (HL) held "we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself". This view was quoted with approval by the Apex Court in the case Jumma Masjid v. Kodimaniandra, reported in AIR 1962 SC 847 , p. 850. While interpreting of Section by the Court, the approach of the Court was dealt with by Lord Denning, L. J., in the case Seaford Court Estates Ltd. v. Asher, reported in (1949) 2 All ER 155, p. 164 (CA) in the manner "when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases". But the view of the Lord Denning, L. J. with due respect was disapproved by the House of Lords in the case Magor and St. He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases". But the view of the Lord Denning, L. J. with due respect was disapproved by the House of Lords in the case Magor and St. Mellons R. D. C. v. Newport Corporation, reported in (1951) 2 All ER 839 (HL) and such disapproval also have been noticed by our Apex Court and applied thereof with approval in the case Punjab Land and Development Corporation v. Presiding Officer, Labour Court, reported in 1990 (3) SCR 111 , pp. 153, 154. But subsequently in the case the view of Lord Denning, L. J. was noticed in the case O. S. Singh v. Union of India, reported in 1996 (7) SCC 37 by the Apex Court in interpreting the definition of "industry" in the Industrial Disputes Act, 1947. In the said judgment the view of Lord Denning, L. J. passed in the case Asher (supra) and the view of Lord Simonds passed in the case Magor and St. Mellons R. D. C. (supra) also were discussed and cited. In the instant case in hand, having regard to those principle of statutory interpretations, this Court is not finding any ambiguity in the Section 147(1)(b)(i) relating to the substituted words by Amendment Act 54 of 1994 and as such the interpretation of the said statute either for ironing out the creases and for making it appropriate as per legislature wisdom, have no scope for application. 14. Considering that issue we are also of the view that the effect of statutory provisions under Section 147(1)(b)(i) so far as the substitution of the word by Amendment Act 54 of 1994 whereby the word "injury to any person, including the owner of the goods or his authorized representative carried in the vehicle" got its effect from 14th November, 1994. 15. Before parting with the answer of the aforesaid issues as framed, another point is striking to the mind of the Court about the distinction of a "proposition of good sense" and "proposition of point of law". Long back the issue was cropped up even in the Court of England to identify what is the proposition of law and what is the proposition of good sense and its basic difference. Long back the issue was cropped up even in the Court of England to identify what is the proposition of law and what is the proposition of good sense and its basic difference. In answering the issue Lord Denning in an accident claim case being the case Qulcast Wolverhenten v. Haynes, reported in (1959) AC 743 held "decision on a question of fact of a superior Court cannot be considered as a presidential authority unless the tests of precedent are satisfied. Mere dealing with the issue by a Court of Law even if it is a superior Court, it very well could be considered as a "proposition of a good sense" and not "proposition of law". Long back in 1939, Lord Atkin also considered that issue as to whether Court will be overburdened with the report and reports by marking the same as a precedent in answering the issue in the case Harrish v. Associated Port Land Cement Manufacturer Limited, reported in (1939) AC 71, wherein the Court held "let not the same thing happened, namely, proposition of good sense at bottom which transforms to the proposition of law by other Courts to the common law, lest we be crushed under the weight of our own records". 16. In the aforesaid two judgments the Court considered the test what is the proposition of good sense and what is the proposition of law. In a certain case a superior Court may pass any order to grant appropriate relief which at best called as proposition of good sense. But the same cannot be termed as proposition of law. In the instant case accordingly we are of the view with due respect and regard to their Lordships that the relief in Baljit Kaur ( AIR 2004 SC 1340 ) (supra) as granted in terms of paragraph 21 thereof, asking the Insurance Company to pay awarded amount first and thereafter to realize it from the owner could be considered as a "proposition of good sense" and not a "proposition of law" for its applicability in this case. 17. Having regard to all the findings and observations, this Court answer the point Nos. 17. Having regard to all the findings and observations, this Court answer the point Nos. 1 and 2 to this effect that Baljit Kaur (supra) is not a binding precedent under Art. 141 of the Constitution of India before this Court so far as giving direction to the Insurance Company to pay the awarded money first and thereafter to realize the same from the owners when the Court passes an order by holding that person concerned injured was travelling as gratuitous passenger in a goods vehicle, that the judgment of Baljit Kaur (supra) is the judgment passed on exercise of power under Art. 142 of the Constitution of India and not a judgment passed under Art. 141 of the Constitution of India so far as the relief direction directing the Insurance Company to pay the amount first and thereafter to realize it from the owner concerned and the Court further holds that the relief as granted in Baljit Kaur (supra) on the factual matrix as existing in those cases are absent in the present case, hence the view or relief granted cannot be considered as a binding precedent to grant the identical relief as sought for by the applicant. Lastly, this Court is holding that the relief point as considered in Baljit Kaur ( AIR 2004 SC 1340 ) (supra) was at best could be considered as a proposition passed in a good sense but not a proposition of law. Hence, issues are accordingly answered. In view of the findings as reached by us, the judgment of the Madras High Court passed in the case M/s. United India Insurance Co. Ltd., Tiruvannamalai and another v. Selvam and others, reported in 2006 (1) TAC 649 (Mad) with due respect to Their Lordships, cannot be considered as a contribution for persuasive value to grant relief to the appellants herein, in that angle. 18. In that view of the matter, finding of the learned Tribunal relying upon the Asha Rani (supra) case cannot be said as illegal if we assume that the claimant was a gratuitous passenger of a goods vehicle as held by the Tribunal. 19. 18. In that view of the matter, finding of the learned Tribunal relying upon the Asha Rani (supra) case cannot be said as illegal if we assume that the claimant was a gratuitous passenger of a goods vehicle as held by the Tribunal. 19. Now, the next point to be considered as to whether the learned Tribunal below was wrong to hold that the claimant was a gratuitous passenger of the Mini Truck and as such, the Insurance Company was not liable applying the Section 147(1)(b)(i) of the Motor Vehicles Act, 1988 so far as the exemption of liability of Insurance Company for gratuitous passenger of a goods vehicle is concerned. To pose that issue we have to analyze the records. From the claim application it appears from paragraph 23 that the appellant categorically made out a case that he was returning with some unsold goods in the said Mini Truck. The relevant paragraph reads to this effect : "23. Due to fault of driver the accident occurred on 28-2-2000 at about 16.00 hrs. when the victim was returning with some undelivered goods on vehicle No. WB-29-1205 along with N. H. 6 and reached near Sarat Setu. The Vehicle No. WB-29/1205 and W. B. 03A-4747 collided with each other as a result the appellant received severe injury all over his body." The claimant as witness deposed to this effect : "I was travelling by the same Mini Truck as it was hired by me. I deal with fire woods and the mini truck was proceeding from Howrah side to Kharagpur side when the offending vehicle being No. WB-03A-4747 which was coming from opposite side at a high and reckless speed committed head on collision with the one Mini Truck being No. WB-29-1205 resulting serious fracture injury to me." 20. In the cross-examination the Insurance Company only asked a question whether there was any document to show that the Mini Truck was hired. The deponent-claimant accordingly deposed that no document was available to him to satisfy that the Mini Truck was hired. The relevant provision of cross-examination reads thus :- "I have not filed any document to show that I hired the mini truck by which I was travelling. The Offending vehicle coming at a wrong side committed head on collision with our vehicle." 21. The other witness produced by the claimant has proved the earning, disablement factors etc. The relevant provision of cross-examination reads thus :- "I have not filed any document to show that I hired the mini truck by which I was travelling. The Offending vehicle coming at a wrong side committed head on collision with our vehicle." 21. The other witness produced by the claimant has proved the earning, disablement factors etc. With that material evidence as already noted above so far as travelling of the claimant by the Mini Truck, the learned Tribunal came to a finding that he was a gratuitous passenger of the vehicle as the claimant failed to produce any document that he hired the vehicle. To reach such a finding the claimant was a gratuitous passenger; the learned Tribunal further observed that there was no evidence that the claimant was returning back with the unsold firewoods. The exact language as used by the learned Tribunal to reach that finding reads to this effect : "As per claim petition, the petitioner was returning with some undelivered goods on vehicle No. WB-29-1205 (Mini Truck), but the petitioner as P. W. 1 nowhere stated in four corners of his deposition that he was returning from Panskura Market with undelivered fire woods in the Mini Truck bearing No. WB-29-1205. No iota of evidence is adduced by the petitioner to prove that he was travelling in the said Mini Truck along with undelivered fire woods or goods. That being the position, I find no reason to hold that the petitioner being the owner of the goods was travelling in the said Mini Truck." 22. No iota of evidence is adduced by the petitioner to prove that he was travelling in the said Mini Truck along with undelivered fire woods or goods. That being the position, I find no reason to hold that the petitioner being the owner of the goods was travelling in the said Mini Truck." 22. On scanning of the evidence on record and applying such test of scanning on the reflection of the Act, which was a social welfare legislation, which provides that a proceeding in a claim application under Motor Vehicles Act is a summary proceeding and all intricacies of the Civil Procedure Code as applicable either in a civil proceeding and/or all financies of proving a material fact in terms of the Evidence Act as applicable in a criminal proceeding need not be followed, it appears before this Court that there are material evidence on the part of the claimant to this effect that he was not a gratuitous person of the Mini Truck in view of the fact that in the claim petition there was a positive averment that the claimant was returning with some unsold goods by the said Mini Truck and in the deposition, which remained undisturbed despite cross-examination the claimant deposed that he hired the Mini Truck for his business and was travelling back in the said Mini Truck. Mere non-production of documentary evidence of hiring a Mini Truck will not evaporate the positive deposition that the claimant hired the Mini Truck and he was travelling back in the said Mini Truck. In the cross-examination no question was raised and no suggestion was made by the Insurance Company that the claimant was not running the business of fire woods or that the claimant was not returning back after selling the fire woods or that the claimant was not the owner of the goods. Besides such, it appears from the record that the owner of the concerned Mini Truck despite being a party to the proceeding did not appear to depose to support the Insurance Company and/or to oppose the claimant to contend that his vehicle was not hired. The Insurance Company also did not take steps to summon the owner of the Mini Truck to prove that the Mini Truck was not hired. 23. The Insurance Company also did not take steps to summon the owner of the Mini Truck to prove that the Mini Truck was not hired. 23. Having regard to all those evidence on record, this Court is satisfied that the claimant was engaged in the business of fire woods and he hired Mini Truck being No. WB-29-1205 to sell that goods and was returning back from the business place where he carried the fire woods for sale when the accident happened. 24. Now, we have to consider the finding of the learned Tribunal as to whether in absence of any oral evidence that the claimant was returning with any unsold goods would disentitle the claimant to hold the status as the owner of the goods who hired the Mini Truck and faced the accident. Section 147(1)(b)(i) only provides that injury to any person including the owner of the goods or his authorized representative carried in the vehicle caused by or arising out of use of the vehicle in a public place could fasten the Insurance Company with a liability to pay compensation as to be awarded. On a bare reading of the statutory provision nowhere it appears that the owner of the goods who hired any goods vehicle is required to prove that he was returning with the unsold goods when the accident happened. Presence of goods in a vehicle, which has been hired by someone is not a condition precedent to grant the relief, namely, the liability upon the Insurance Company to pay the awarded amount. Under normal parlance, when a business man or a trader hires a goods vehicle to sell the goods, it may happen that while he was proceeding to the market to sell the goods, the existence of the goods must be there but it may not happen vice versa when he was returning back on the said vehicle after selling the goods as it may happen that all goods were sold already and there was no remaining goods unsold. Hence, the finding of the learned Tribunal that as the claimant did not depose that he was returning with the unsold goods ipso facto will not dissolve the liability of payment of compensation amount by the Insurance Company who insured the Mini Truck under risk coverage policy of a goods carriage. 25. Hence, the finding of the learned Tribunal that as the claimant did not depose that he was returning with the unsold goods ipso facto will not dissolve the liability of payment of compensation amount by the Insurance Company who insured the Mini Truck under risk coverage policy of a goods carriage. 25. In that view of the matter and having regard to all the material facts and the evidence on record, this Court is of the view that the claimant hired the said vehicle, namely, mini truck to sell the fire woods and accident happened while he was returning back from the market and, as such, he cannot be said as gratuitous passenger of the said Mini Truck, which was hired by him, but it will be deemed that he was the owner of the goods who hired the vehicle. 26. Having regard to such findings and observations of this Court aforesaid, the findings of the learned Tribunal below holding that the claimant was a gratuitous passenger of the Mini Truck, is accordingly set aside and quashed. This Court being the Appeal Court accordingly holds to decide the claim application that the present appellant was the owner of the goods who hired the goods vehicle, the said mini truck and accordingly applying the provision of law in terms of Section 147(1)(b)(i) the Insurance Company is liable to pay the compensation amount as to be fixed by this Court. 27. Further it appears from the records that the question of third party's liability of the other truck wherein the claimant was travelling was not at all considered by the learned Tribunal below. It appears that Truck No. WB-03A-4747 was insured with third party's liability and if it is even assumed that the entire liability should not be carried by the Insurance Company with reference to the insured Mini Truck is concerned, still then 50% of such could be shouldered by the Insurance Company who covered the risk coverage of the truck in question under the third party's liability and, as such, the finding of the learned Tribunal below to distribute the compensation money to both the owners for payment to the claimant, namely, the owner of the Mini Truck and Truck was erroneous and bad in law. This Court is of the view that the Insurance Company, who has covered the risk factor of the truck concerned so far as third party's liability is concerned, is also liable to pay compensation. 28. In the instant case, however, it appears that one insurance company that is Oriental Insurance Company is carrying the liability of the owners in respect of both the offending vehicles that is Mini Truck as well as the Truck. Hence the question of sharing the liability by other Insurance Company is absent. 29. Now, the last point to be considered about the quantum of compensation. From the judgment under appeal it appears that the accident has been proved. The disablement to the extent of 75% and the loss of income of the claimant to the extent of Rs. 2,500/- have been proved. No cross appeal has been preferred by the Insurance Company. Accordingly, these findings are accepted by the Court. However, so far as the 75% disablement as considered by the learned Tribunal below to fix the compensation amount by using appropriate multiplier formula in terms of Section 163A, since the learned Advocate for the appellant has raised no grievance, accordingly we are not adjudicating the issue, save and except the acceptance of the finding of the learned Tribunal below. 30. Having regard to the aforesaid findings and observations, the judgment under appeal is accordingly set aside to this extent about fixing of liability to the owners of both the vehicles concerned and thereby to exempt the Insurance Company thereof. The judgment under appeal stands modified accordingly by holding that the compensation money as awarded being Rs. 4,12,907/- to be paid by the Insurance Company, namely, Oriental Insurance Company within a period of two weeks from this date along with the interest @ 7.5% thereof from the date of claim application by exercising power under Section 171 of said Act and following the judgment of Apex Court on issue of payment of interest from the date of application as passed in the cases National Insurance Co. Ltd. v. Keshav Bahadur and others reported in 2004 (2) TAC 1 (SC) : ( AIR 2004 SC 1581 ), Fakeerappa and another v. Karnataka Cement Pipe Factory and others, reported in 2004 (2) TAC 8 (SC) : (2004 AIR SCW 7475), Abati Bezbaruah v. Deputy Director General, reported in 2003 (2) WBLR (SC) 331 : ( AIR 2003 SC 1817 ) and S. Kaushnuma Begam and others v. New India Insurance Co. Ltd., reported in AIR 2001 SC 485 , till the date of payment. 31. However, it is made clear that in the event of failure to pay the principal compensation amount as well as the interest thereof by two weeks from date by the Insurance Company, the interest @ 9% will follow from the date of application on the amount of compensation as fixed without prejudice to the other penal consequences under the Contempt of Court's Act and others. 32. In that view of the matter, the appeal succeeds. 33. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously. Order accordingly.