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2008 DIGILAW 957 (ORI)

NEW INDIAN ASSURANCE CO. LTD. v. DASIAN BEHERA

2008-10-27

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT : B.S. Chauhan, C.J. - This appeal has been preferred against the judgment and order of the learned Single Judge dated 18.2.1993 passed in M.A. No. 323 of 1986 by which the learned Single Judge dismissed the appeal by a single word 'dismissed' without giving any reasons against the award of the Second Motor Accident Claims Tribunal, Northern Division, Sambalpur (hereinafter called the 'Tribunal') dated 14.5.1986. 2. The facts and circumstances giving rise to the case are that a claim petition bearing Misc. Case No. 120 of 1984 was filed before the learned Tribunal under the provisions of Motor Vehicles Act, 1939 (hereinafter called the 'Act 1939') by the Respondent No. 1 claiming himself to be the dependant of one Sradhakar Behera, who died in the accident on 23.2.1984 on Barkot-Pallahara road near Kala bridge while transporting the goods from Khandam to Naktideul in the vehicle bearing registration No. ORS 4246 of which Respondent No. 2 was the registered owner. The claim petition was contested by the Insurance Company, the present Appellant, as well as by the insured on various grounds. The Tribunal came to the conclusion that the deceased was traveling in the vehicle unauthorisedly as a passenger for hire and it was not permissible in a goods vehicle. The claim petition was allowed directing the payment of compensation to the tune of Rs. 17,750/- with interest at the rate of 10 percent per annum from the date of application i.e. 27.10.1984 till payment. The amount had been directed to be paid by the insurer. 3. Being aggrieved, the appeal was preferred which has been dismissed by one word 'dismissed' without giving any reason. Hence this appeal. 4. Ms. Arundhati Ghosh learned Counsel for Appellant has submitted that it was not permissible for the learned Single Judge to decide the appeal without giving any reason whatsoever. The appeal has to be disposed of by giving reasons. More so, as the finding of fact had been recorded by the Tribunal that the deceased was traveling as a passenger or as an agent of the owner of the goods, his traveling in the goods vehicle was not in consonance with the agreement incorporated in the policy issued by the insurer to Respondent No. 2-owner of the vehicle. Therefore, the insurer cannot be fastened with the liability of compensation. 5. On the other hand, Mr. Therefore, the insurer cannot be fastened with the liability of compensation. 5. On the other hand, Mr. Niranjan Singh, learned Counsel appearing for Respondent No. 2 submitted that as he was traveling when the goods were carried by the vehicle and met an accident and in view of the fact that the vehicle had been insured, the compensation becomes the liability of the Insurance Company. Thus appeal is liable to be dismissed. 6. We have considered the rival submissions made by learned Counsel for the parties and perused the record. 7. Order 41 Rule 31 deals with the contents, date and signature of the judgment. The issue has been considered time and again. In Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526 , Apex Court held that it must be evident from the judgment of the Appellate Court that the Court has properly appreciated the case, applied its mind and decided on considering the evidence on record. 8. In Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, the Supreme Court held that the provisions of Rule 31 of Order 41 Code of Civil Procedure. should be reasonably construed and should be held to require the various particulars mentioned under Rule 31 to take into consideration. The Court placed reliance upon its earlier judgment in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya wherein it had observed that the procedural law has been designed to facilitate justice and too technical consideration of the Section that leaves no room for reasonable elasticity of interpretation, should therefore, be guarded against, as the same may frustrate the cause of justice. 9. In Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury the Apex Court has observed that when the Appellate Court agrees with the view of the trial court in evidence, it did not re-state the effect of evidence or reiterate reasons given by the trial Court. The expression of general agreement with reasons given by the court's decision, which is under appeal, would ordinarily be suffice. 10. In Balaji Mohaprabhu and Another Vs. Narasingha Kar and Others, the Orissa High Court held that it would amount to substantial compliance of the provisions of Order 41, Rule 31 Code of Civil Procedure. The expression of general agreement with reasons given by the court's decision, which is under appeal, would ordinarily be suffice. 10. In Balaji Mohaprabhu and Another Vs. Narasingha Kar and Others, the Orissa High Court held that it would amount to substantial compliance of the provisions of Order 41, Rule 31 Code of Civil Procedure. if the Appellate Court's judgment is based on independent assessment of the relevant evidence on all important aspects of the matter and the findings by the Appellate Court are well-founded and quite convincing. 11. In Nihal Chand Agrawal and Ors. v. Gopal Sahai Bhartia and Ors. AIR 1987 Delhi 206, the Delhi High Court held that under Order 41, Rule 31 of the Code of Civil Procedure, it is mandatory upon the trial court to independently weigh the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. As the first appellate court is the final court of fact, it must not record a mere general expression of concurrence with the trial court's judgment. Similar view has been expressed in Bogamal Gohain and Others Vs. Lakhinath Kalita and Others, . 12. In Samir Kumar Chatterjee Vs. Hirendra Nath Ghosh the Calcutta High Court held that the court of first appeal should not merely endorse the findings of the trial court. In order to meet the requirement of Order 41, Rule 31 Code of Civil Procedure., the Appellate Court must give reasons for its decision independently to that of the trial Court. 13. In Kuldeep Singh and Anr. v. Chandra Singh 1999 AIHC 979 , the Court held that in order to meet the requirement of substantial compliance of the provisions of Order 41 Rule 31 Code of Civil Procedure., the first appellate court must deal all the points agitated before it and it must record reasons in support of its findings, and if the provisions have substantially been complied with, the judgment would not vitiate. 14. In G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others the Supreme Court held that the substantial compliance of the provisions of Order 41 Rule 31 has to be made. 15. The Court should formulate the points for its consideration in terms of Order 41 Rule 31 Code of Civil Procedure. and proceed with the disposal of the appeal. (Vide Shiv Kumar Sharma Vs. R.C. Diocese of Madurai and Others the Supreme Court held that the substantial compliance of the provisions of Order 41 Rule 31 has to be made. 15. The Court should formulate the points for its consideration in terms of Order 41 Rule 31 Code of Civil Procedure. and proceed with the disposal of the appeal. (Vide Shiv Kumar Sharma Vs. Santosh Kumari, ; and Gannmani Anasuya and Others Vs. Parvatini Amarendra Chowdhary and Others, ). 16. A point not necessary for the disposal of appeal may not be decided (Vide Mahant Narayangiri Guru Mahant Someshwarigiri Vs. The State of Maharashtra and Another, and Baljit Singh v. Municipal Committee, Ahmedgarh, 1987 (Supp.) SCC 17 ). 17. In view of the above, we are of the considered view that the learned Single Judge should not have decided the appeal by a non-speaking order. In such a fact situation, the judgment and order becomes liable to be set aside and the case is required to be decided afresh. However, considering the fact that the accident took place in 1984, the appeal itself had been decided in 1993, a long period has elapsed in between and pure question of law is involved, instead of remanding the case to be decided afresh by the learned Single Judge, we have taken the task to decide the appeal on merit. 18. On this very issue, learned Counsel for the parties advanced their arguments. The issue as to whether gratuitous passenger who met with an accident is covered by the insurance policy is no more res-integra as it has been considered by the court time and again. 19. A Full Bench of this Court in New India Assurance Company Ltd. Vs. Kanchan Bewa and Others, has considered the issue at length after taking into consideration various provisions of the Act, 1939 and various judgments of the Court and various provisions of the contract contained in the policy, and came to the conclusion that unless ' a vehicle is a vehicle meant for carrying passengers for hire or reward or the said vehicle by reason or in pursuance of contract of employment is required to cover the liability in respect of death of or bodily injury to persons being carried in or upon, the Insurer will not be liable to pay compensation. The Court however explained the legal position that the owner of the goods who has hired a goods vehicle does not become a person traveling on the vehicle in pursuance of a contract of employment and even if he is carrying his goods after hiring the vehicle, the vehicle does not become a vehicle meant for carrying passengers for hire or reward. 20. A Division Bench of this Court in Divisional Manager, Oriental Insurance Co. Ltd. Vs. Jasoda Mohanta and Others, has taken the same view relying upon the judgments of the Supreme Court in Smt. Mallawwa v. Oriental Insurance Co. Ltd. AIR 1999 SC 1939 wherein after considering the provisions of the Act, 1939, the Apex Court held that the Insurance Company was not liable in case of death of the owner of the goods carried in a goods vehicle. 21. A contrary view had been taken by the Hon'ble Supreme Court in New India Assurance Company Vs. Shri Satpal Singh and Others, ; wherein it was held that under the new Act an insurance policy covering 3rd party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. However, correctness of the said judgment was doubted and Larger Bench in New India Assurance Co. Ltd. Vs. Asha Rani and Others, reconsidered the matter and held that owner of the goods or his authorized representative carried in goods vehicle if dies or suffers any bodily injury in the accident, the insurer would not be liable to pay compensation. 22. Subsequent thereto, the Apex Court has consistently approved the view taken in Asha Rani (supra) as is evident from the judgment in United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and Others, ; The Oriental Insurance Company Limited Vs. Meena Variyal and Others, ; and Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, . 23. In New India Assurance Co. Ltd. Vs. Vedwati and Others the issue was reconsidered by the Supreme Court considering the provisions of the Motor Vehicles Act, 1988, as the same stood prior to 1994 amendment, and reached the conclusion that liability of the insurer to pay the compensation u/s 147, does not extend to cases of death of, or bodily injury to, the owner of the goods or his authorized representative carried in a goods vehicle. The Court held as under: The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance A bare reading of the provisions makes it clear that the legislative Intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in the definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'the WC Act'). There is no reference to any passenger in 'goods carriage'. 10. The inevitable conclusion, therefore, is that provisions of the Act 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 the insurer would have no liability therefore. 24. While deciding the said case reliance was placed by the Apex Court on its earlier judgments in Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., ; National Insurance Co. Ltd. Vs. Ajit Kumar and Others, ; National Insurance Co. Ltd. Vs. Baljit Kaur and Others, ; and National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, . 25. Thus in view of the above, the legal proposition can be summarised that in case a gratuitous passenger in the goods vehicle dies or suffers from bodily injury, the liability to pay compensation cannot be fastened with the insurer. 26. In such a fact situation, the appeal stands disposed of with a direction that if the amount of compensation has not yet been paid by the Appellant to the claimant, it shall make the payment at the earliest, and shall recover from the insured. 26. In such a fact situation, the appeal stands disposed of with a direction that if the amount of compensation has not yet been paid by the Appellant to the claimant, it shall make the payment at the earliest, and shall recover from the insured. Needless to say that if the compensation has already been paid by the Appellant, it shall be entitled to recover the same from the insured. No costs.