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Gauhati High Court · body

2007 DIGILAW 449 (GAU)

National Insurance Company Ltd. v. Amrit Kalita

2007-06-27

I.A.ANSARI

body2007
1. This appeal is directed against the award, dated 4.1.2003, passed, in MAC Case No. 153/2000, by the learned Member, Motor Accident Claim Tribunal, Darrang, whereby the insurer-appellant has been directed to pay to the claimant-respondent No. 1 herein a sum of Rs. 25,000 as compensation. The various facts giving rise to the present appeal may be set out as under : The claimant-respondent No. 1 made an application, under section 166 of the Motor Vehicles Act, 1988 ('the M.V. Act, 1988'), seeking a sum of Rs. 2,55,000 as compensation, his case being, in brief, thus : On 8.9.1993, at about 10:30 AM, while the claimant was travelling from his house, at Khairdbari, in the truck, bearing registration No. ASU-2717, along with his paddy to be sold at Mangaldoi Town, the vehicle, due to rash and negligent driving by its driver, met with an accident at Bunglagarh and the claimant sustained injuries on his legs. 2. Though the insurer resisted the claim for compensation by contending, inter alia, that the insurer was not liable to pay any compensation, the learned Tribunal, having found the claimant entitled to receive compensation of a sum of Rs. 25,000, directed that the said amount shall be paid by the insurer with interest at the rate of 9% from the date of making of the claim application. Aggrieved by the award, the insurer has preferred this appeal. 3. I have heard Mr. A.K. Goswami, learned senior counsel for the insurer-appellant. None has appeared on behalf of the respondent. 4. The moot question, which falls for determination, in the present appeal, is this : Whether the owner of the goods shall be held entitled to receive compensation from the insurer of the vehicle if the vehicle, in which the goods were being carried, was not a passenger carrying vehicle, but a goods carriage or a goods carrying vehicle, particularly, when the accident had taken place on 8.9.1993 ? 5. While considering the question posed above, what needs to be noted is that prior to the charges, which section 147 of the MV Act, 1988, underwent, byway of amendment, section 147(1) read as follows : Section 147 of the Motor Vehicles Act, 1988, prior to its amendment reads as under : "147. Requirements of policies and limits of liability. 5. While considering the question posed above, what needs to be noted is that prior to the charges, which section 147 of the MV Act, 1988, underwent, byway of amendment, section 147(1) read as follows : Section 147 of the Motor Vehicles Act, 1988, prior to its amendment reads as under : "147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which, - (a) is issued by a person who is an authorised insurer; and (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 ; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place : Provided that a policy shall not be required. - (i) to cover liability in respect of the death, arising out and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee - (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle ; or (ii) to cover any contractual liability. Explanation. Explanation. - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely : - (a) save as provided in clause (b), the amount of liability incurred ; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 6. After section 147 underwent amendment by way of the Motor Vehicles (Amendment) Act, 1994, which came into force on 14.11.1994, Section 147 reads as follows : Section 147 of the Motor Vehicles (Amendment) Act, 1994, reads as under: "147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -... (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, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; ...." 7. From a minute reading of the amended provisions of section 147, what become transparent is that while prior to the amendment which was introduced in section 147 by way of the Motor Vehicles (Amendment) Act, 1994, compulsory insurance was required against any liability, which may be incurred by the owner of the vehicle, in respect of the death of, or bodily injury to, any person; but such a person did not include owner of the goods or his authorized representative carried in the vehicle. However, with the addition of the expression "including owner of the goods or his authorized representative carried in the vehicle" in sub-clause (i) of clause (b) of section 147(1), it is, now, necessary that the vehicle must be insured against any liability, which may be incurred by the owner of the vehicle in respect of death of, or bodily injury to, not only passengers, but also to the owner of the goods or his authorized representative, who may be carried in the vehicle. To put it a little differently, prior to the amendments, which were introduced on 14.11.1994, the insurance coverage in respect of the owner of the goods or his authorized representative, carried in the vehicle, was not compulsory. 8. In New India Assurance Co. v. Satpal, (2000) 1 SCC 237 , the Apex Court had held that the owner of the goods, carried in a goods carriage, is compulsorily insured in terms of section 147 and, hence, the owner of the goods, carried in goods carriage, is entitled to receive compensation from the insurer if he dies or sustains injury. The decision in Satpal's case (supra) was re-examined by a three-Judge Bench in New India Assurance Co. Ltd. v. Asha Rani and Others, (2003) 2 SCC 223 , and, on such re-examination, the Apex Court, speaking through Pattanaik, CJ, observed and held as under : "9. In Satpal's case (supra) the court assumed that the provisions of section 95(1) of the Motor Vehicles Act, 1939, are identical with section 147( 1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a, goods vehicle the accident occurred. If the Motor Vehicles 'Amendment Act of 1994, is examined, particularly section 46 by which expression "injury to any person" in the original Act stood substituted by the expression "injury to any person including owner of the goods or his authorised representative carried in the vehicle" the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if the widest interpretation is given to the expression "to any person" it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the Legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression "including owner of the goods or his authorised representative carried in the vehicle" which was added to the pre-existed expression "injury to any person" is either clarificatory or amplification of the pre­existing statute. On the other hand it clearly demonstrates that the Legislature wanted to bring within the sweep of section 147 and make it compulsory for the insurer to insure even in the case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle, met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this court in Satpal's case (2000) 99 Comp Cas 258 (SC), therefore, must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying 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 goods or his representative dies or suffers any bodily injury", (emphasis is supplied) 9. It is held that the insurer will not be liable for paying 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 goods or his representative dies or suffers any bodily injury", (emphasis is supplied) 9. What emerges from the above discussion is that in the absence of the expression "including owner of the goods or his authorized representative carried in the vehicle", the owner of the goods or his authorized representative, who was carried in a goods carnage, was not covered by the provisions of compulsory insurance under section 147 and that insurance coverage for the owner of the goods or his authorized representative, even if carried in a goods carriage, has become a statutory requirement with the amendment, which came into effect, on 14.11.1994, as indicated hereinabove. 10. In the backdrop of the provisions of law as indicated above, when I revert to the facts of the present case, what surfaces is that the accident had taken place on 8.9.1993, i.e., before the amendment, as pointed out above, was brought into effect. Situated, thus, it becomes abundantly clear that in the case at hand, the claimant, as owner of the goods, in question, was not entitled to receive compensation from the insurer. The claimant shall, however, be entitled to receive compensation from the registered owner of the vehicle. 11. Because of what have been discussed and pointed out above, this appeal partly succeeds. While the quantum of compensation determined by the learned Tribunal is not interfered with, it is hereby clarified and directed that the claimant shall be entitled to receive the compensation, as determined by the learned Tribunal, from the registered owner of the offending vehicle. As far as the insurer-appellant is concerned, it shall have no liability to pay compensation to the claimant-respondent or to indemnify the owner-respondent for the compensation, which he has been held liable to pay to the claimant. The impugned award shall stand modified in terms of the directions as given hereinbefore. 12. With the above observations and directions, this appeal shall stand disposed of. 13. No order as to costs. 14. Send back the LCRs.