Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1493 (RAJ)

New India Insurance Co. v. Budhram

2009-06-26

T.P.SHARMA

body2009
Hon'ble SHARMA, J.—By this appeal the appellant Insurance Company has challenged its liability to pay compensation awarded by the 3rd Additional Motor Accidents Claims Tribunal, Durg in Claim Case No.95/97 vide award dated 30-7-98, whereby learned Claims Tribunal has awarded Rs.1,55,000/- to respondents No.1 to 4 and passed liability upon the appellant. 2. Respondents No.1 to 4 had also filed cross-appeal for enhancement of the award on the ground that the Claims Tribunal has awarded less compensation on account of the death of deceased Kaminbai, wife of respondent No.1 & mother of respondents No.2 to 4. 3. Brief facts of the case are that respondent No.6 was owner of the vehicle Tata 407 bearing registration No.MP-24/9850, respondent No.5 was driving the vehicle on the date of alleged incident i.e. 6-9-92 and the vehicle was insured with the appellant Insurance Company on the said date. As a result of motor accident deceased Kaminbai sustained injury and died. Respondents No.1 to 4 are legal representatives/husband & children of deceased Kaminbai. Claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short `the Act') was filed and after affording opportunity of hearing to the parties, compensation was awarded against the appellant on account of the tortuous act committed by respondents No.5 & 6. The present appellant has contested the claim petition on the ground that the vehicle was registered as transport vehicle and at the time of incident respondents No.5 & 6 had used the vehicle for carrying passengers and had violated the condition of insurance, therefore, the claimants are not entitled for any compensation from the appellant. 4. I have heard learned counsel for the parties, perused the impugned award and record of the Claims Tribunal. 5. Learned counsel for the appellant submits that the vehicle in question was registered as a transport vehicle and at the time of incident respondent No.5 was carrying passengers, deceased Kaminbai, her husband & other persons were sitting as passengers and no premium was paid by respondent No.6 for carrying passengers in the aforesaid motor vehicle, therefore, the appellant is not liable to pay any compensation on account of any motor accident. Learned counsel placed reliance in the matter of New India Assurance Co. Learned counsel placed reliance in the matter of New India Assurance Co. Ltd. vs. Asha Rani and others1 in which it has been held by the Apex Court that passengers/ persons sitting in the goods carriage vehicle, driver and conductor are not covered under third party and in case of any accident the Insurance Company is not liable for any compensation. Learned counsel further placed reliance in the matter of Oriental Insurance Co. Ltd. vs. Devireddy Konda Reddy and others2 in which it has been held by the Apex Court that persons travelling in a goods carriage, vehicle owner not required to get insurance in respect of such persons, therefore, the insurer is not liable to pay any compensation. 6. Learned counsel for respondents No.1 to 4 vehemently argued that the Claims Tribunal has not considered the income and has not applied proper multiplier and awarded less compensation. 7. Learned counsel for respondent No.6 argued that deceased Kaminbai was sitting on the vehicle and was third party for which premium was paid, therefore, only the Insurance Company is liable to pay compensation. 8. Record of the Claims Tribunal reveals that deceased Kaminbai was travelling in Tata 407 which is admittedly goods carriage vehicle. Insurance policy Exs.D-1 & D-2 reveals that no premium was paid for passengers sitting in the goods carriage vehicle. According to the evidence of the parties, 10-15 persons were sitting in Tata 407 at the time of accident and deceased Kaminbai was not driving the vehicle neither she was conductor nor labour in the said vehicle. Admittedly, no premium was paid, even normally it was not possible to pay. 9. Learned Claims Tribunal has held that the persons sitting in the goods carriage vehicle are third party and the Insurance Company is liable to pay compensation. In the case of Asha Rani (supra) the Apex Court has held that the passengers are not permitted in the goods carriage vehicle in accordance with Section 147 of the Act, although the passengers are permitted and premium is required for public service vehicle. Paras 22 to 25 of the said judgment read thus, "22. In the case of Asha Rani (supra) the Apex Court has held that the passengers are not permitted in the goods carriage vehicle in accordance with Section 147 of the Act, although the passengers are permitted and premium is required for public service vehicle. Paras 22 to 25 of the said judgment read thus, "22. Thus, it may be noticed that so far as employees of the owner of the motor vehicle are concerned, an insurance policy was not required to be taken in relation to their liability other than arising in terms of the provisions of the Workmen's Compensation Act, 1923. On the other hand, proviso (ii) appended to Section 95 of the 1939 Act, enjoined a statutory liability upon the owner of the vehicle to take out an insurance policy to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment. The legislature has consciously not inserted the said provision in the 1988 Act. 23. The applicability of the decision of this Court in Mallawwa vs. Oriental Insurance Co. Ltd. ( (1999) 1 SCC 403 : 1999 SCC (Cri) 58) in this case must be considered keeping that aspect in view. Section 2(35) of the 1988 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of "goods vehicle" in the 1939 Act and "goods carriage" in the 1988 Act is significant. By reason of the change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words "in addition to passengers" occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that "goods carriage" would mean a motor vehicle constructed or adapted for use "solely for the carriage of goods". Carrying of passengers in a "goods carriage", thus, is not contemplated under the 1988 Act. 24. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to clause (ii) of the proviso appended to Section 95 of the 1939 Act. The decision of this Court in Mallawwa case must be held to have been rendered having regard to the aforementioned provisions. 25. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to clause (ii) of the proviso appended to Section 95 of the 1939 Act. The decision of this Court in Mallawwa case must be held to have been rendered having regard to the aforementioned provisions. 25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a "goods carriage"." 10. In the case of Devireddy (supra) the Apex Court has held that the vehicle owner is not required to get insurance in respect of the persons travelling in goods carriage, therefore, the insurance company is not liable to pay any compensation in case of any injury or death of the person travelling in such goods carriage. Paras 10 & 11 of the said judgment read thus, "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 therefor. 11. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Co. Ltd. vs. Asha Rani (supra) in which it has been held that Satpal Singh case ((2000} 1 SCC 237 : 2000 SCC (Cri) 130) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award." 11. No premium was required to cover the risk of the persons travelling in goods carriage vehicle and premium has not been paid by the owner to cover the risk of passengers travelling in goods carriage vehicle. In absence of any insurance contract or statutory liability the Insurance Company is not liable to pay compensation for death of a person travelling in goods carriage vehicle for which no premium was possible or the Insurance Company is not statutorily liable. In absence of any insurance contract or statutory liability the Insurance Company is not liable to pay compensation for death of a person travelling in goods carriage vehicle for which no premium was possible or the Insurance Company is not statutorily liable. The Tribunal has reached to a wrong conclusion that the person travelling in such goods carriage vehicle is third party and risk has been covered by the Insurance Company. 12. As regards the question of enhancement of compensation, respondents No.1 to 4 have not been able to show anything to prove that the compensation awarded is not adequate or that less compensation has been awarded to them. In other terms, the Claims Tribunal after appreciating the evidence available on record and after applying proper multiplier has awarded adequate compensation of Rs.1,55,000/-. I do not find any scope for enhancement of compensation. For the foregoing reasons, the cross-appeal filed on behalf of respondents No.1 to 4 is liable to be dismissed and it is hereby dismissed. 13. Finding of the Claims Tribunal regarding liability to pay compensation by the appellant is not sustainable. The appellant Insurance Company is not liable to pay any compensation for the tortuous act attributed to respondents No.5 & 6 and respondents No.5 & 6 themselves are liable for their tortuous act not covered by the insurance contract or statutory liability. 14. Consequently, the appeal is allowed. Award impugned is modified. The appellant is exonerated from payment of compensation on account of tortuous act committed by respondents No.5 & 6. No order as to costs.