Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 30 (RAJ)

Jagdish Chand Sharma v. Bachan Singh

2010-01-06

DEEPAK GUPTA, SURINDER SINGH

body2010
Hon'ble GUPTA, J.—The following questions have been referred for decision to the Full Bench : "(1) What meaning should be assigned to the phrase 'any property of a third party' occurring in Sections 147 and 165 of the Motor Vehicles act, 1988? (2) Whether the goods of a consignor/consignee being carried in a goods vehicle can be termed to be property of a third party?" 2. The claimants in both these appeals filed claim applications before the Motor Accidents Claims Tribunal, Shimla under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') in which compensation was claimed for loss of goods being carried in a truck. In both the cases the owner of the goods was travelling along with the goods in the truck. 3. In F.A.O. No. 97 of 1999, the learned Tribunal awarded compensation for the personal injuries suffered by the owner but rejected the claim with regard to the goods being carried in the vehicle. 4. In F.A.O. No. 209 of 1999 the claim was only with regard to the goods being carried in the vehicle and the learned Tribunal held that such a claim was not maintainable before the Claims Tribunal and ordered that the claim petition be returned to the petitioner for presentation in the proper Court. The learned Tribunal held that the property being carried in a goods vehicle cannot be said to be the property of a third party and, therefore, the Motor Accidents Claims Tribunal constituted under the Act would have no jurisdiction to entertain the claim. 5. Before dealing with the matter it would be apposite to refer to the relevant provisions of the Motor Vehicles Act. The Motor Accidents Claims Tribunals are constituted under Chapter XII of the Act. The relevant portion of Section 165 reads as follows : "165. Claims Tribunal.—(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both." 6. Insurance of motor vehicles against third party risk is compulsory under the provisions of Chapter XI of the Act. Relevant portion of Section 147(1) and (2) of the Act reads as follows: "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, including owner of the goods or his authroised 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; (ii) against the death of or bodily injury to any passenger or 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 of 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, 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.—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-sec. (1), a policy of insurance referred to in sub-sec. (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely : (a) save as provided in cl. (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand:" 7. A bare reading of the aforesaid two provisions clearly indicates that the insurance company is bound under the terms of the Act to cover liability with respect to the property of a third party and that the claims Tribunal will have jurisdiction to entertain such claims. However, the limit of liability of the insurance company under the Act is only Rs. 6,000/- though the insurance company can undertake to indemnify the insured for greater liability by charging extra premium. 8. Third party has been defined in section 145(g) of the Motor Vehicles act which reads as follows: "145.(g) 'third party' includes the Government." 9. This definition is totally unhelpful and his no bearing on the decision of this case. It only lays down that the government is a third party. However, the said definition throws no light as to what other persons are covered by the expression 'third party'. 10. Section 146 of the Act makes it compulsory for every owner of a vehicle to ensure that his vehicle is covered by a policy of insurance complying with the requirements of Chapter XI of the Act. A policy which covers the liability, only statutorily coverable under the Act, is called an 'Act Policy'. When an insurance company issues an Act Policy, it undertakes to indemnify the insured for all losses which are payable under the terms of the Motor Vehicles Act. A policy which covers the liability, only statutorily coverable under the Act, is called an 'Act Policy'. When an insurance company issues an Act Policy, it undertakes to indemnify the insured for all losses which are payable under the terms of the Motor Vehicles Act. No doubt, the insurance company can by charging extra premium cover other liabilities also, but in the present case, we are dealing with the question as to whether the insurance policy is required to cover the risk in relation to goods being carried in a goods vehicle. Can these goods be said to belong to a third party or not? 11. It is more than obvious that the liability in respect of property under the Act is limited to the property of third parties only. This gives rise to the first question posed before us. Who is a third party? This is the moot question. Can a consignor/consignee of the goods being carried in a goods vehicle be termed to be a third party? This is the ancillary question. 12. The matter was referred to larger Bench in view of certain divergent opinions of this Court noticed by one of us (Deepak Gupta, J.) in the reference order. 13. In National Insurance Co. Ltd. vs. Ramesh Kumar, 1999 ACJ 1305 (HP), a Division bench of this Court dealt with the issue whether an insurance company is liable in respect of goods being carried in the insured vehicle. It was held as follows in para 15 : "(15) The only question which involves for consideration is whether the appellant insurance company has been rightly held to pay the entire amount of compensation awarded for the loss of the goods or the liability of the appellant insurance company is limited. As regards liability of the appellant insurance company, the learned counsel has pointed out that the appellant insurance company was under no statutory obligation to cover any contractual liability as has been provided in proviso (iii) to Section 95(1)(b) of the act and the appellant insurance company has in its policy not agreed to indemnify the vehicle owner in respect of damage to goods of the 'third party' arising during transport under the contract of carriage. (16) The insurance policy marked Exh.R/1 provides for no liability of the insurance company to 'third party' in respect of damage to the goods under transport. (16) The insurance policy marked Exh.R/1 provides for no liability of the insurance company to 'third party' in respect of damage to the goods under transport. The relevant clause (d) of Section II of the policy dealing with the liability to 'third parties' reads thus : 'The company shall not be liable in respect of damage to property belonging to or held in trust by or in the custody or control of the insured or a member of the insured's household or being conveyed by the motor vehicle.' (17) From the insurance policy, therefore, it is apparent that the appellant insurance company has not agreed to indemnify the insured in respect of damage to property being conveyed by the motor vehicle. The insured owner of the vehicle was under a contractual obligation to transport the goods belonging to the deceased to destination in safe condition. But because of the damage to the goods in transit, the owner of the vehicle, i.e., respondent No. 7 herein was under contractual liability to compensate for the loss of the goods and this contractual liability has not been covered under insurance policy. As such, the liability to pay damages in respect of goods damaged in the motor accident during the transport is of the respondent No. 7 herein and not of the appellant insurance company. The award of tribunal holding the appellant company liable to pay the compensation amount for the loss of the goods of the deceased is unsustainable." 14. Similar view was taken in F.A.O. No. 209 of 1991; decided on 20.12.1999 by another Division Bench wherein relying upon the earlier judgment in National Insurance Co. Ltd. vs. Ramesh Kumar, 1999 ACJ 1305 (HP) and the proviso (iii) of Section 95(1)(b) of the Motor Vehicles Act, 1939 it was held that the liability to pay damages in respect of the goods damaged in the goods vehicle during transport is not covered under the contractual liability of the insurance company and, therefore, the appellant insurance company is not liable to compensate for the loss of goods, it would be pertinent to mention that two F.A.Os. were decided by this common judgment. were decided by this common judgment. Whereas in the case of Balam Singh, i.e. F.A.O. No. 210 of 1991, the Division Bench ordered that the insurance company is not liable in respect of the goods being carried in the vehicle, as far as F.A.O. No. 209 of 1991 relating to Roop Singh was concerned, it was held that since he was not travelling in the ill-fated truck, he would be a third party and as such the insurance company would be liable to the extent it had covered liability. Though not clearly stated, it appears that the distinction drawn is that if the owner of the goods is travelling in the vehicle then the goods cannot be said to be property of third party and in case the owner of the goods is not travelling in the vehicle then the goods will be the property of a third party. 15. Another view, which has been taken by this Court, though in a virtually non-speaking judgment, is in Kishori Lal vs. Ram Krishan, C.R. No. 120 of 1998; decided on 1.5.1998. This judgment has been relied upon by the Tribunal. In fact this judgment arises out of on earlier order passed by the Tribunal ordering the return of a claim petition relating to a claim of damages to goods being carried in a goods vehicle. The Tribunal had ordered return of the petition on the ground that it had no jurisdiction to entertain the same. Against this order, a revision petition was filed wherein a learned Single Judge of this court held as follows : "Petitioner has filed a petition claiming compensation on account of loss of consignment of apple boxes. These boxes ere loaded in the truck which met with an accident in Shimla and the boxes are said to have been totally damaged or destroyed. On the face of it, such a claim cannot be entertained and tried by the Motor Accidents Claims Tribunal. I am in complete agreement with the observation made by the learned Tribunal that the dispute is covered by the Carriers Act, 1865 and the petitioner has the remedy available to him under the provisions of that Act. I thus find that the order does not suffer from any illegality or any other infirmity and the petition has rightly been ordered to be returned for want of jurisdiction. I thus find that the order does not suffer from any illegality or any other infirmity and the petition has rightly been ordered to be returned for want of jurisdiction. Learned counsel has not been able to persuade me to take a different view than the one arrived at. Dismissed." 16. Thereafter, a similar question was raised in United India Insurance Co. Ltd. vs. Noor Dass, 2006 ACJ 142 (HP). In this case, it was held as follows : "(3) ...The expression 'by the owner of the property' as occurring in and Section 166(1)(b) surely has a direct nexus and link with the expression 'any property of a third party' occurring in sub-section (1) of Section 165 and conjoint reading of both these expressions clearly indicates that an application for compensation in terms of Section 166 of the Act can be made by the owner of a property and such owner has to be a third party and when we talk of a third party with respect to the ownership of the property damaged in the accident we mean the party other than the insured inasmuch as the insurer and the insured are parties to the contract of insurance and as long as the insured is not the claimant with respect to the compensation claimed for damage to his property, the claim will come within the purview of damage to the 'property of a third party'. In other words, whenever a property is being carried in a vehicle which is the subject-matter of an insurance policy and this property also does not belong to the insured-owner of the vehicle in question nor in this property itself covered by any other independent policy of insurance, if it is damaged in an accident, this property belonging to such a third party, such a third party is entitled to file a claim petition under Section 166 of the Act." 17. It would be pertinent to mention here that the earlier judgments of this Court were not brought to the notice of the Court while deciding this matter. 18. Ms. Seems Guleria, learned counsel for the claimants has placed reliance on the judgment of this Court in Noor Dass, 2006 ACJ 142 (HP). It would be pertinent to mention here that the earlier judgments of this Court were not brought to the notice of the Court while deciding this matter. 18. Ms. Seems Guleria, learned counsel for the claimants has placed reliance on the judgment of this Court in Noor Dass, 2006 ACJ 142 (HP). She urges that other than the insurer and the insured, all other persons are third parties and, therefore, the claim in respect of the compensation for damage to the property of any person other than the insurer or the insured is a claim of a third party. 19. In addition to the aforesaid judgments of this Court, the parties have cited a number of judgments. 20. In Ahmed Ahaiyat Saiyed vs. Ibrahim Bhachal Shah, 1985 ACJ 83 (Gujarat), a claim petition was filed for personal injuries as well as for the damages on account of loss to the goods, i.e., goats and sheep being carried in the truck. Gujarat High Court rejected the claim insofar as the goods were concerned on the ground that it was not maintainable. 21. In United India Insurance Co. Ltd. vs. K.A.R.N. Janarthanam, 1988 ACJ 503 (Madras), the claimant had booked a consignment of cotton which was to be carried in a lorry. The lorry met with an accident. A Division Bench of Madras High court held as follows : "The goods belonging to the petitioner having been carried in the vehicle of respondent No. 2, under a contract, the relationship between them being one of bailor and bailee, the goods were carried by respondent No. 2 for the benefit of the claimant and hence, under Exh. R/1, the loss occasioning in respect of such goods having been specifically excluded, respondent insurance company cannot be made liable to compensate for the loss alleged to have been suffered by the petitioner. Mr. Arunagirinathan, learned counsel for the respondent No. 2, would then state that the petition filed under Section 110-A of the Motor Vehicles Act itself was not maintainable on the finding that the goods which had suffered damage are not properties of a third party. His contention is based on Chapter VIII of Motor Vehicles act, being confined only in respect of third party risks and no other. His contention is based on Chapter VIII of Motor Vehicles act, being confined only in respect of third party risks and no other. This Court having held that the goods involved in the petition are not properties of a third party coming within the scope of Section 95(1)9b)(i), in view of Section 110, the Claims Tribunal would have no jurisdiction to entertain such a claim. The Tribunal constituted under Section 110 could only adjudicate upon claims for compensation in respect of damage to any property of a third party so arising. Therefore, the petition as filed was not maintainable before the Tribunal at Madurai." 22. In this case, it was clearly held that the consignor is not a third party and the claim petition under the Act is not maintainable. 23. In Mayuddin Abbasmiya Malik vs. Shanabhai Shankerbhai Valand, 1992 ACJ 881 (Gujarat), a learned single Judge of Gujarat High Court held that the insurance company cannot be held liable in view of the specific exclusion clause incorporated in the insurance policy. It, however, held that the Tribunal would have jurisdiction to entertain the application for compensation for damage to the goods. 24. In K. Thiagarajan vs. Thanjavur Co-operative Ltd., 1998 ACJ 87 (Madras), a Division Bench of Madras High Court upheld the judgment of Claims Tribunal that it had no jurisdiction to entertain a claim petition for loss of goods which were being transported in a vehicle involved in a motor vehicle accident. 25. Karnataka High Court in Oriental Insurance Co. Ltd. vs. K. Buden Sab, 2002 ACJ 139 (Karnataka), held as follows : "(6) From the facts of this case the goods were being carried in the vehicle belonging to the respondent No. 2 under a contract. If that is so, there is a duty cast upon the owner of the vehicle to provide safe transport. In the event if the owner of the vehicle fails to provide safe transport, he is said to have committed breach of contract and not a tort. Therefore, the insurance company is not liable to indemnify the liability of the owner of the vehicle in the absence of covering the risk under the policy." 26. Karnataka High Court, however, did not consider the question as to what is the meaning of words 'third party' or whether the Claims Tribunal had jurisdiction to entertain the claim or not. 27. Karnataka High Court, however, did not consider the question as to what is the meaning of words 'third party' or whether the Claims Tribunal had jurisdiction to entertain the claim or not. 27. In New India Assurance Co. Ltd. vs. Dharam Singh Bhai, 2004 ACJ 1998 (Rajasthan), the judgment of this Court in Ramesh Kumar, 1999 ACJ 1305 (HP), has been distinguished. A learned single Judge of Rajasthan High Court held as follows : "(16) ...Therefore, any party other than the contracting party of the contract of insurance becomes and can be called a third party. The use of words 'third party' clearly indicates that it refers to a party who is neither the first party nor the second party to a contract of insurance and, therefore, the expression 'third party' includes everyone be it a person travelling in the vehicle itself or otherwise. The expression 'any person' used in Section 147(b)(i) would undoubtedly include an occupant of the vehicle, so in the case, the property of any person would include the property of the occupant of the vehicle or any other person. Thus, in the instant case, undoubtedly, the claimant was not the party to the contract of insurance and, therefore, the claimant was neither first party nor the second party to the contract, which is obvious as the first party is insurer and the second party is insured and, therefore, the claimant cannot be excluded from the ambit of expression of 'third party'." 28. These are the authorities which have specifically dealt with the question whether the insurance company is liable in respect of goods being carried in a goods vehicle or not. The majority view is that the insurance company is not liable. In fact, in most of the cases this view has been taken on the interpretation of the insurance policy. A policy of insurance must comply with the terms of the Motor Vehicles Act. The Insurance company is statutory required to cover all the liabilities under the Act. This is the minimum liability which the insurance company must cover. It can give wider cover but the cover cannot be less than that which is mandated under the Act. It is settled law that the insurance company even by incorporating a condition under the policy cannot exclude a risk which it is bound to cover under the Act. This is the minimum liability which the insurance company must cover. It can give wider cover but the cover cannot be less than that which is mandated under the Act. It is settled law that the insurance company even by incorporating a condition under the policy cannot exclude a risk which it is bound to cover under the Act. therefore, unless the policy specifically covers damage to goods, the insurance company would not be liable under the Act. 29. The other important aspect is as to what is the meaning of the phrase 'third party'. We have already quoted section147 of the Act above. Section 147(1)9b) (i) provides that an insurance company is required to cover the risk in respect of any liability incurred by the insured in respect of 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. This section was amended vide Act 54 of 1994 w.e.f. 14.11.1994. Injury to owner of the goods or his authorised representative carried in a goods vehicle was covered under the expression 'any person'. 30. In New India Assurance Co. Ltd. vs. Asha Rani, 2003 ACJ 1 (SC) = RLW 2003(2) SC 213, the Apex Court considered the scope of the expression 'any person' occurring in Sec. 147 of the Act and held thus : " ...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., 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor." 31. In other words, the Supreme court clearly held that the apparently wide words 'any person' are qualified by the setting in which they occur and that 'any person' is to be understood as a third party. 32. In United India Insurance Co. In other words, the Supreme court clearly held that the apparently wide words 'any person' are qualified by the setting in which they occur and that 'any person' is to be understood as a third party. 32. In United India Insurance Co. Ltd. vs. Tilak Singh, 2006 ACJ 1441 (SC) = RLW 2006(3) SC 1781, the Supreme Court considered the question whether risk of death or injury to gratuitous passengers, i.e., pillion rider being carried in a private vehicle, i.e., a scooter is covered under the provisions of Section 147 or not. After discussing the entire law on the subject, the Hon'ble Supreme court held as follows : "(18) Thus, even under the 1939 Act the established legal position was that unless there was a specific coverage of the risk pertaining to a gratuitous passengers in the policy, the insurer was not liable. We find that clause (ii) of the proviso to Sec. 95(1) has been eliminated while drafting Sec. 147 of the 1988 Act. Under sub-sec. (1)(b) under the 1988 Act, compulsory policy of insurance required under statute must now provide 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, including owner of the goods or 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'. xxx xxx xxx (21) In our view, although the observations made in Asha Rani's case, 2003 ACJ 1 (SC) = RLW 2003(2) SC 213, were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of appellant insurance company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence, it id not cover the risk of death of or bodily injury to a gratuitous passengers." 33. In Oriental Insurance Co. Ltd. vs. Meena Variyal, 2007 ACJ 1284 (SC), the Apex Court held that words 'any person' occurring in Section 147(1)(b) do not cover persons other than third parties. It was held that any person only means third parties and none else. In Oriental Insurance Co. Ltd. vs. Meena Variyal, 2007 ACJ 1284 (SC), the Apex Court held that words 'any person' occurring in Section 147(1)(b) do not cover persons other than third parties. It was held that any person only means third parties and none else. In this case, an employee of the owner filed the claim petition. He was travelling in the vehicle of the owner in the course of its employment. However, the deceased was not covered under the provisions of the Workmen's Compensation Act, 1923. The Apex Court held that the Insurance Company was not liable to cover such risk under the Act. It was held as follows : "(10) Chapter XI of he Act bears a heading, 'Insurance of Motor Vehicles against Third Party Risks'. The definition of 'third party' is an inclusive one since Section 145(g) only indicates that 'third party' includes the Government. It is Section 146 that makes it obligatory for an insurance to be taken out before a motor vehicle could be used on the road. The heading of that section itself is necessity for insurance against third party risk. No doubt, the marginal heading may not be conclusive. It is section 147 that sets out the requirement of policies and limits of liability. It is provided therein that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which is issued by an authorised insurer; or which insurers the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by the owner in respect of the death of or bodily injury or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. With effect from 14.11.1994, injury to the owner of goods or his authorised representative carried in the vehicle was also added. The policy had to cover 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. With effect from 14.11.1994, injury to the owner of goods or his authorised representative carried in the vehicle was also added. The policy had to cover 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. Then, as per the proviso, the policy shall not be required to cover liability in respect of the death, arising out of 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 Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, an employee engaged in driving the vehicle, or who is a conductor, if it is a public service vehicle or an employee being carried in a goods vehicle or to cover any contractual liability. Sub-section (2) only sets down thelimits of the policy. As we understand Section 147(1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmen's Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. it is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last forgoing to the effect that the policy must cover a liability arising under Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (h) (sic (b)) of sub-section (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. (11) The object of insistence on the insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923, in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Sec. 147, we find it difficult to hold that the insurance company, in the case on hand, was liable to indemnify the owner, the employer company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under Workmen's Compensation Act, 1923 and it is doubtful, on the case put forward by claimant, whether the deceased could be understood as a workman coming within the Workmen's Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the insurance company is not liable to indemnify the insured in the case on hand. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the insurance company is not liable to indemnify the insured in the case on hand. (12) The argument that the proviso does not keep out employees from coverage though the claims under the Workmen's Compensation Act are specified, cannot be accepted on the plain language of the proviso. The proviso enacts an exemption and carves out an exception to that exemption. The suggested interpretation would result in ignoring the effect of the language employed by the proviso, exempting the owner from covering his employees under insurance except in cases where the liability in respect of them is, one arising under the Workmen's Compensation Act. Obviously, as determined by that Tribunal." 34. In National Insurance Co. Ltd. vs. Kaushalaya Devi, 2008 ACJ 2144 (SC), the question before the Apex Court was whether the insurance company can be held liable in respect of death of passenger in a public goods vehicle. After discussing the entire law on the subject, the Apex Court held that insurance company could not be held liable. 35. In Oriental Insurance Co. Ltd. vs. Sudhakaran K.V., 2008 ACJ 2045 (SC) = 2009(1) CCR 1 (SC) = 2008(2) RLW 1680 (SC), the claim related to the deceased who was travelling as a pillion rider on a scooter. The Apex Court held as follows : "(8) In terms of Section 147 of the Act only with regard to reimbursement of the claim to a third party, a contract of insurance must be taken by the owner of the vehicle. It is imperative in nature. When, however, an owner of a vehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. (9) Liability of the insurer to reimburse the owner in respect of a claim made by the third party, thus, is statutory whereas other claims are not. (10) The only question which, therefore, arises for our consideration is as to whether the pillion rider on a scooter would be a third party within the meaning of Section 147 of the Act. (10) The only question which, therefore, arises for our consideration is as to whether the pillion rider on a scooter would be a third party within the meaning of Section 147 of the Act. Indisputably, a distinction has to be made between a contract of insurance in regard to a third party and the owner or the driver of the vehicle." 36. The Apex Court thereafter discussed the entire law on the subject and went on to hold as follows : "(14) The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract. (15) We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle. xxx xxx xxx (19) The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 149 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider and (iii) the pillion rider on a two-wheeler was not to be treated as a third party when accident has taken place owing to rash and negligent riding of the scooter and not on the part of driver of another vehicle." 37. In Bhagyalakshmi vs. United India Insurance Co. Ltd., (2009) 7 SCC 148 , the Apex Court has again discussed the entire law on the subject and held that words 'any person' are not so wide as to cover passengers in a vehicle. In Bhagyalakshmi vs. United India Insurance Co. Ltd., (2009) 7 SCC 148 , the Apex Court has again discussed the entire law on the subject and held that words 'any person' are not so wide as to cover passengers in a vehicle. However, the matter has been referred to a larger Bench on the question whether gratuitous passengers travelling in a private vehicle are automatically covered under Comprehensive Policy/Package Policy in view of the policy terms and the applicable conditions as notified by the Tariff Advisory Committee. This, however, does not change the legal position. 38. The position which emerges is that the Apex Court has consistently held that the phrase 'any person' in Section 147(1)(b) is restricted to third parties. When we come to damage to property both in Section 147(1)(b)(i) as well as in Section 165, the legislature in its wisdom has specifically used the phrase 'property of a third party'. If a gratuitous passenger in a vehicle is not a third party, it is obvious that the goods being carried in a vehicle cannot be said to be the goods of a third party. Some courts had earlier taken the view that other than the insurer and the insured, all other persons are third parties. This has not been accepted to be the correct position of law and, therefore, the Apex Court has held that the insurance company is not liable in respect of death of gratuitous or unauthorised passengers. In fact, till the amendment of Section 147 of the Act was carried out by the Amendment Act 54 of 1994 w.e.f. 14.11.1994, the Apex Court had held that even the risk to the owner of the goods or his authorised representative was not covered. They were not treated as third parties. If all these authorities of the Apex Court were taken into consideration, it is obvious that gratuitous passengers, unauthorised passengers, even employees not covered under the Workmen's Compensation Act and pillion riders who were all travelling in a vehicle have not been considered to be third parties. It is, therefore, obvious that the Apex Court has not upheld the view expressed by certain courts including the view expressed by a learned single Judge in Noor Dass case, 2006 ACJ 142 (HP), that other than the insurer and insured, all other persons are third parties. Therefore, this plea of the claimants cannot be accepted. It is, therefore, obvious that the Apex Court has not upheld the view expressed by certain courts including the view expressed by a learned single Judge in Noor Dass case, 2006 ACJ 142 (HP), that other than the insurer and insured, all other persons are third parties. Therefore, this plea of the claimants cannot be accepted. It is, therefore, obvious that the words 'third party' cannot include such persons. 39. When a person sends his goods by a goods vehicle, he enters into a contract with the owner of the goods vehicle and, therefore, the owner of the goods vehicle becomes contractually liable to transport the goods in a safe condition. This is a contractual liability covered under the Carriers Act and not a tortuous liability covered under the Motor Vehicles Act. The owner of the goods cannot by any stretch of imagination be said to be a third party vis-a-vis the insured. It is a contracting party with the insured and in our view, the risk cannot be said to be that of a third party. 40. In view of the above discussion, we answer both the questions posed to us in the following terms : (1) The phrase 'any property of a third party' occurring in Sections 147 and 165 of the Motor Vehicles Act will mean property which is outside the goods vehicle and not being carried in the goods vehicle. (2) The second question is answered by holding that the goods of a consignor/consignee being carried in a goods vehicle cannot be termed to be property of a third party. 41. The appeal(s) may now be listed before a learned single Judge for decision in accordance with law.