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2006 DIGILAW 496 (AP)

UNITED INDIA INSURANCE CO. LTD. v. SURESH

2006-04-07

K.K.DENESAN, V.RAM KUMAR

body2006
K. K. DENESAN, J. ( 1 ) DOES the law require that to avail the benefit of clause (b) (i) of sub-section (1) of section 147 of the Motor vehicles Act, 1988 (hereinafter referred to as 'the Act'), the owner of the goods or his authorised representative who dies or sustains bodily injury caused by or arising out of use of the vehicle in a public place while travelling as passenger in a goods carriage, should be shown to accompany the goods, at the time of the accident? In other words, does the statute require that not only the owner of the goods or his authorised representative but the goods also should be carried simultaneously in the vehicle which gets involved in a motor accident causing death or bodily injury to that passenger? ( 2 ) THE above issue has come up for consideration in this appeal filed by respondent No. 2 insurer in O. P. (MV) No. 2484 of 1999 of the Motor Accidents Claims tribunal, Thrissur. It is admitted case that the claimant-respondent was travelling in a goods autorickshaw bearing registration no. KL 8-M 8568 driven by respondent no. 2 along Choondal-Guruvayur Road from south to north on 13. 8. 1999. The respondent No. 1 had hired the vehicle for the purpose of bringing coconuts from Thalak-kottukara to Orumanayur. He was sitting on the left side of the driver in the above goods carriage. When the vehicle reached kandanchira, at about 11. 15 a. m. , it capsized due to rash and negligent driving by respondent No. 2. Respondent No. 1 sustained serious injuries including fracture of both bones in the accident. ( 3 ) IT is not disputed that the vehicle was insured with the appellant. According to respondent No. 1, he was travelling in the vehicle as the authorised representative of the owner of the coconuts to be loaded and transported from Thalakkottukara. The tribunal placing reliance on the oral evidence of respondent No. 1 who was examined as pw 1 and the documents marked as Exhs. A1 to A9 on his side found that respondent no. 1 sustained injuries due to negligent driving by respondent No. 2. After quantifying the compensation due to respondent no. 1 at Rs. The tribunal placing reliance on the oral evidence of respondent No. 1 who was examined as pw 1 and the documents marked as Exhs. A1 to A9 on his side found that respondent no. 1 sustained injuries due to negligent driving by respondent No. 2. After quantifying the compensation due to respondent no. 1 at Rs. 1,19,300 the Claims Tribunal allowed the respondent No. 1 to realise the above said amount from respondent No. 2 and the appellant with 9 per cent interest per annum from the date of petition. ( 4 ) THOUGH the appellant has taken up the contention that the quantum determined by the Claims Tribunal as compensation is excessive, the contention seriously pursued before us is that the Tribunal went wrong inasmuch as the appellant insurer has been made liable to indemnify respondent No. 2. According to the appellant the insured allowed respondent No. 1 to travel in the goods carriage as gratuitous passenger and thereby incurred liability. It was contended that under the provisions of the Motor vehicles Act the owner of a goods carriage has no obligation to insure persons carried in the goods carriage and hence no liability can be fixed on the insurer of that vehicle. ( 5 ) LEARNED counsel for the appellant cited before us the decision of the Apex court in New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC) and Oriental insurance Co. Ltd. v. Devireddy Konda reddy, 2003 ACJ 468 (SC), in support of his contention. ( 6 ) LEARNED counsel for respondent No. 1 contended that since the accident occurred while the goods carriage was proceeding to the place from where the goods had to be loaded for transportation in the vehicle hired for that purpose and as respondent no. 1 was travelling in the vehicle as the authorised representative of the owner of the said goods, the insurer cannot shirk its responsibility to indemnify the owner. Policy, Exh. B1, issued by the appellant had insured the respondent No. 2 against liability incurred by him in respect of the bodily injury to the owner of the goods or his authorised representative carried in the goods carriage as enjoined by clause (b) (i) of sub-section (1) of section 147 of the act. Policy, Exh. B1, issued by the appellant had insured the respondent No. 2 against liability incurred by him in respect of the bodily injury to the owner of the goods or his authorised representative carried in the goods carriage as enjoined by clause (b) (i) of sub-section (1) of section 147 of the act. Learned counsel raised an alternate contention based on the plea that the appellant having admitted the policy is bound to pay the compensation to respondent No. 1 and thereafter to recover the amount from respondent No. 2, if it so chooses. ( 7 ) IN reply to the above arguments the learned counsel for the appellant submitted that in order to avail the benefit of clause (b) (i) of sub-section (1) of section 147 of the Act respondent No. 1 shall, not only plead and prove that he was the authorised representative of the owner of the goods in question but also establish that he was travelling in the goods carriage along with the goods. According to learned counsel only that owner or the authorised representative who accompanies the goods carried in the goods vehicle alone will be entitled to realise the compensation from the insurer of the vehicle. ( 8 ) WE have considered the materials on record as also the authorities cited before us by counsel on either side. Prior to the amendment of clause (b) (i) of sub-section (1) of section 147 of the Act by Act 54 of 1994 with effect from 14. 11. 1994 the owner of the goods or his authorised representative carried in the goods carriage fell within the common class of gratuitous passengers. Statute did not require that a policy of insurance should cover the risk caused to passengers who are allowed to travel in a goods carriage either gratuitously or for reward or fare. In Mallawwa v. Oriental Insurance Co. Ltd. , 1999 ACJ 1 (SC), the Supreme Court while interpreting section 95 of the Motor Vehicles Act, 1939 held that persons travelling in goods vehicles, whether as owners of the goods or as passengers on payment of fare or as gratuitous passengers and sustains injury or dies in the accident, were not covered by the proviso (ii) of section 95 (1) (b) (i)of the said Act. In the above case, the Apex court while interpreting the proviso (ii) to section 95 (1) (b) (i) of Motor Vehicles Act, 1939 held that only a vehicle which is used for systematically carrying passengers can be said to be a vehicle in which passengers are carried for hire or reward. Hence, persons travelling in a goods vehicle, whether the owners of the goods or passengers on payment of fare or as gratuitous passengers, could not be covered by proviso (ii ). Therefore, the insurer of the goods vehicle was not liable to pay compensation. ( 9 ) IN New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC), the Apex court took the view that since the repeal of the Motor Vehicles Act, 1939 and the coming into force of the Motor Vehicles act, 1988 the question shall be considered in terms of the language of section 147 of the Act which corresponds to section 95 of the old Act and the changes that have been brought by the legislature in the proviso to section 147 (1) of the new Act. The Apex court held in Satpal Singh's case (supra), that under the new 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. ( 10 ) IN New India Assurance Co. Ltd. v. Asha Rani, 2001 ACJ 1847 (SC), a two-Judge bench of the Supreme Court opined that Satpal Singh's case, 2000 ACJ 1 (SC), required reconsideration by a Larger Bench. The above opinion was expressed on noticing that the statute does not contemplate passengers being carried in a goods carriage. The case that was thus referred to the larger Bench was decided by the Supreme court in New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC ). It was held that Satpal Singh's case (supra), was not correctly decided and that insurer will not be liable to pay compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury. The above judgment had been rendered on 3. 12. 2002. Placing reliance on the dictum laid down as above the Apex Court in Oriental insurance Co. The above judgment had been rendered on 3. 12. 2002. Placing reliance on the dictum laid down as above the Apex Court in Oriental insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACJ 468 (SC), once again held that the provisions of the Motor Vehicles Act, 1988 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 that the insurer would have no liability therefor. ( 11 ) THE statute has undergone a noteworthy change as far as clause (b) (i) of sub-section (1) of section 147 of the Act is concerned. Clause (b) (i) prior to its amendment by Act 54 of 1994 reads as follows: " (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;" as per the amendment, the words 'including owner of the goods or his authorised representative carried in the vehicle' have been added immediately after the words 'injury to any person' in clause (b) (i) of sub-section (1) of section 147 of the Act. The intention of the legislature in introducing the above words is that the policy shall cover the owner of the goods or his authorised representative who dies or suffers any bodily injury while travelling as passenger in a goods carriage. Amended provision carves out 'owner of the goods' and 'authorised representative of the owner' from the common class of passengers of a goods carriage, for the purpose of bringing them within the purview of the Act policy. There is no case for the appellant or the respondents that the above is not the intention of the legislature. But they disagree as regards the true meaning and scope of the newly added words in the above clause. The dispute centres round the question as to whether the word 'carried' qualifies the owner of the goods who travels as a passenger in the goods carriage as also the goods owned by that passenger or it qualifies only the owner and his representatives and not the goods. The dispute centres round the question as to whether the word 'carried' qualifies the owner of the goods who travels as a passenger in the goods carriage as also the goods owned by that passenger or it qualifies only the owner and his representatives and not the goods. ( 12 ) ACCORDING to appellant the goods must be available in the vehicle because it provides the nexus between the passenger and the goods and makes the passenger eligible to claim compensation from the insurer. But according to respondent No. 1 goods need not invariably find a place in the goods carriage at the time when the accident occurs and that it would suffice if the passenger establishes that he was travelling as the owner of goods to be loaded into the vehicle and transported to the destination where unloading would take place. There cannot be any doubt that the owner of the goods or his authorised representative must be passengers of the goods carriage when the vehicle meets with an accident resulting in death or bodily injury to that passenger. Hence, the word 'carried' indubitably qualifies the passenger who may either be the owner of the goods or his representative. The word 'carried' is in juxtaposition with the words 'or his authorised representative'. According to the learned counsel for the appellant if the above words are ignored, the word 'carried' will qualify the word 'goods'. According to us, the language of the amended provision does not show that the owner or the representative must accompany the goods in order to come within the purview of that clause. It is rather common that the owner of the goods or his representative who hires the vehicle travels in the hired vehicle from the place of hiring to the place where the goods are to be loaded into the vehicle and then proceeds to travel along with the goods. It is also common that after unloading the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. If goods are found inside the vehicle at the time of the accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of goods or the owner's representative was travelling in that capacity. Chances of passengers or the insured raising false claims in this regard cannot be safe method to ascertain the intention of the legislature. False claim can be disproved by the insurer by adducing materials and evidence and also by raising appropriate contentions. In our view, such issues are matters of evidence and will not stand scrutiny while construing a beneficial provision intended to compensate the loss caused to innocent victims of the motor accidents. The party who claims that the person who died or suffered injury was the owner of goods or the representative of the owner of the goods shall discharge the burden cast on him. Merely for the reason that the benefit granted will be misused, it will not be proper to give a narrow interpretation to the above provision. We, therefore, hold that the owner or the authorised representative need not invariably be shown to accompany the goods, at the time the goods carriage meets with the accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorised representative of the owner of the goods. ( 13 ) IN the above view of the matter it is not necessary to consider the alternate contention that the insurance company is liable to pay the compensation to respondent no. 1 and can thereafter proceed to recover the amount from respondent No. 2 on the ground of violation of the policy condition. ( 14 ) WE have gone through the computation of compensation granted by the tribunal under various heads and find no ground to interfere with the same. In the result, M. A. C. C. A. is dismissed. Parties are directed to bear their respective costs in this appeal. Appeal dismissed. - .