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2007 DIGILAW 2093 (PNJ)

National Insurance Company Limited v. Ram Chander And Another

2007-11-30

MAHESH GROVER, UMA NATH SINGH

body2007
Judgment Mahesh Grover, J. 1. The abovementioned appeals initiated at the behest of the Insurance Company shall be disposed of by his order as they involve the same set of facts arise out of the same award of the Motor Accident claims Tribunal, Narnaul dated 16th september, 1998. 2. In a motor vehicular accident, which is stated to have taken place on 24th October, 1995, 12 persons who were proceeding towards a cattle fair alongwith their goods in tata-407 truck, were injured when it turned turtle due to rash and negligent driving. 3. Petitions for grant of compensation under the Motor Vehicles Act, 1988 were filed claiming compensation on account of the injuries sustained by them in abovesaid accident. The Tribunal answered the petitions in the affirmative and granted compensation to the injured persons. Aggrieved by the said award the Insurance Company has filed these six appeals which are being disposed of by this common order. 4. The matter was earlier disposed of by a division Bench of this Court on 4th March, 1999 against which the appellant preferred civil Appeals bearing Nos.2654-2660 of 2000 and vide order dated 20th April, 2006 the Hon ble Supreme Court remanded the ma tter back to decide it afresh "in the light of law laid down in New India Assurance Co. Ltd. V/s. Asha Rani. 5. In this backdrop, the present appeal is being heard afresh. 6. Mr. R. M. Suri, learned counsel for the appellant raised only one contention that the injured was traveling in a goods vehicle and the Insurance Company is not liable to indemnify the owner for carrying passenger as it amounts to a breach of the condition of the policy and prayed for recovery rights to be granted to it. Apart from Asha Ranis case (supra), reliance was placed on Oriental insurance Company Ltd. V/s. Devireddy Konda reddy2, National Insurance Company Ltd. V/s. Ajit Kumar and others1, National Company Ltd v. Baljit Kaur and others, National Insurance co. Ltd. V/s. Bommithi Subbhayamma and others5 and United India Insurance Co. Ltd. Shimla V/s. Tilak Singh and others6. 7. The contention of the learned Counsel for the appellant was sought to be repelled by the learned Counsel for the respondent claimant on the ground that the claimant were in fact accompanying their goods and proceeding towards the fair. Ltd. V/s. Bommithi Subbhayamma and others5 and United India Insurance Co. Ltd. Shimla V/s. Tilak Singh and others6. 7. The contention of the learned Counsel for the appellant was sought to be repelled by the learned Counsel for the respondent claimant on the ground that the claimant were in fact accompanying their goods and proceeding towards the fair. They were, thus, not gratuitous passengers as was being contended by the learned Counsel for the appellant, but rather the reasons who would come within the meaning of owner of the goods or his authorized representatives to be covered under the amended provisions of sec. 147 (1) of the Vehicles Act. 8. We have heard the learned counsel for the parties at length. 9. The only question that has to be determined is whether the claimants were the gratuitous passenger so as to exclude the insured from the purview of the policy as it amounted to a breach of a condition thereof. To establish the factum of the status of the claimants in the light of the provision of the amended provisions of Sec.147 (1), we have also perused the evidence with specific reference to the cross-examination of the witness who had testified before the Tribunal. The claimants, whose cases were the subject-matter of the aforementioned appeals, were the persons who were accompanying their goods to be carried to the fair. P. W.2, P. W.5, p. W.7, P. W.11 and P. W.12 had testified that bags of fodder, shows, wooden planks and cattle feed were the goods which were being ferried in the offending vehicle to the accompaniment of the claimants. They could, therefore, not be gratuitous passengers so as to absolve the Insurance Company of its liability to pay the amount of compensation as determined by the Tribunal since they were all owners of the goods travelling in the vehicle at the time of accident. 10. The view aforesaid was determined by the Hon ble Supreme Court in Asha Ranis case (supra) and followed in Devireddy Konda reddys case (supra) and later on again by a three-judge Bench of the Apex Court in Baljit kaurs case (supra ). 11. 10. The view aforesaid was determined by the Hon ble Supreme Court in Asha Ranis case (supra) and followed in Devireddy Konda reddys case (supra) and later on again by a three-judge Bench of the Apex Court in Baljit kaurs case (supra ). 11. While considering the effect of the amendment carried out in Sec.147 of the motor Vehicles Act, 1988 by Motor Vehicles (Amendment Act, 1994 it was opined: "by reason of the 1994 amendment wha t was added is, including owner of the goods or his authorized representative carried in vehicle. The liability of the owner of the vehicle to insure it compulsorily, thus by reason of the aforementioned amendment included only the owner of the goods or his authorities representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words any person occurring in Sec.147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of Parliament to carry out an amendment inasmuch as the expression "any person" contained in sub-clause (i) of Clause (b) of sub-section (1) of Sec.147 would have included the owner of the good or his authorized representative besides the passengers who are gratuitous or otherwise. " The observations made in this connection by the Court in Asha Rani (Supra) to which one of us, Sinha, J. was party, however, bear repetition; " (26) In view of the change in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used, i. e. the "third party". Keeping in view the provisions of 1988 act, we are of the opinion that as the provisions thereof do not enjoy any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, Insurer would not be liable therefore. Keeping in view the provisions of 1988 act, we are of the opinion that as the provisions thereof do not enjoy any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, Insurer would not be liable therefore. " In Asha Rani (supra), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Sec.147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damages to any property of a third party caused by or arising out of the use of vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods for his authorized representative and not any passenger carried in the goods vehicle whether for hire or reward or otherwise. It is therefore, manifest that inspite of the amendment of 1994, the effect of the provisions contained in Sec.147 with respect of persons other than the owner of the goods or his authorized representative remains the same. Althogh the owner of the goods or his autohrized representative remains the same. Although the owner of goods or his authorized representa live would not be covered by the policy of insurance in respect of a goods vehicle, it has not the intention of the Legislature to provide for the liability of the insurer with respect to passengers especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. 12 The same view was further reiterated in Pramod Kumar Agrawal V/s. Mushtari Begum7. In the light of observations made by the Hon ble Supreme Court by dissecting provisions of Sec.147, it is clear that the words "any person" occurring in the said section would not cover all persons who were travelling in goods carriage in any capacity but would certainly include the owner of goods or his authorized representatives. In the light of observations made by the Hon ble Supreme Court by dissecting provisions of Sec.147, it is clear that the words "any person" occurring in the said section would not cover all persons who were travelling in goods carriage in any capacity but would certainly include the owner of goods or his authorized representatives. As noticed above, the evidence conclusively establishes that the claimants were carrying their goods in the offending vehicle and were thus, covered under the amendment and the appellant, therefore, cannot escape the liability to satisfy the award qua the claimants in the aforesaid appeals. Resultantly, F. A. O. Nos.2742, 2743, 2744, 2745 and 2748 of 1998 are devoid of any merit and are dismissed as such.