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2013 DIGILAW 585 (HP)

Mohinderjeet Singh v. Kamla Devi

2013-06-21

RAJIV SHARMA

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JUDGMENT Rajiv Sharma, Judge: This appeal is directed against the judgment rendered by the Motor Accident Claims Tribunal, Fast Track Court, Chamba in M.A.C. No. 1/05/03, dated 4.9.2006. 2. The brief facts necessary for adjudication of the case are that respondents No. 1 to 6 have filed claim petition seeking compensation of Rs.20,00,000/- on account of death of Ashok Kumar. Ashok Kumar was travelling in a Tanker No. HR-03-9974 on 3.11.2002, owned by the appellants. The accident took place at 12.05 P.M.. Ashok Kumar along with driver and conductor of the vehicle died on the spot. Ashok Kumar was employed as ASI in the Police Department and was posted at Kaza. 3 The appellants filed their respective reply. According to the appellants, the accident has not taken place due to the negligence of the driver. According to them, the vehicle was fully and comprehensively insured with the Insurance Company at the time of accident. In other words, their submission is that the Insurance Company was liable to indemnify. 4 The Insurance Company, in its reply, stated that Ashok Kumar was travelling as gratuitous passenger in the tanker and he was not covered under the Policy. It was mandatory for the owner to have policy under the P.L.I Act, 1991, in addition to the Policy under the Act. 5 The learned Tribunal awarded compensation of Rs. 13,07,700/- with interest at the rate of Rs.9% per annum from the date of filing of the petition till realization. The learned Tribunal has exonerated the Insurance Company. Hence, this appeal. 6 Mr. Ashwani K. Sharma, Advocate, has vehemently argued that respondent No.7-Insurance Company is liable to indemnify the appellants. He then contended that the accident has not taken place due to the fault of the driver. He has also argued that the compensation paid to the claimants is on higher side. 7 I have heard learned counsel for the parties and have also gone through the records carefully. 8 In order to prove income of deceased Ashok Kumar, Smt. Kamla appeared as PW2 and deposed that Ashok Kumar was posted at Kaza and his monthly salary was approximately Rs. 10,000/-. The learned Tribunal has assessed loss of income/dependency to the claimants to Rs.7,998/- per month and Rs.95,976/- per annum. Multiplier of 13 has been applied and the total loss of future income to the claimants came to be Rs.12,47,688/-. 10,000/-. The learned Tribunal has assessed loss of income/dependency to the claimants to Rs.7,998/- per month and Rs.95,976/- per annum. Multiplier of 13 has been applied and the total loss of future income to the claimants came to be Rs.12,47,688/-. The claimant-wife has been given Rs.25,000/- for the loss of consortium, minor claimants have been awarded a sum of Rs.25,000/- for loss of love and affection and conventional chargers of Rs. 10,000/- were also paid to the claimants. The Tribunal has correctly applied multiplier of 13. The compensation paid by the learned Tribunal is strictly in accordance with law taking into consideration the income of deceased Ashok Kumar. The factum of the accident is not denied by the appellants or the Insurance Company. The insurance policy is Ext. RW 1/A. The vehicle involved in the accident was goods vehicle. It was not authorized under the Policy to carry passengers. Therefore, Ashok Kumar was not supposed to be travelling in a goods vehicle. His status was of a gratuitous passenger. 9 Mr. Ashwani K. Sharma, Advocate, has relied upon report of the Investigating Officer dated 27.11.2003 and order of the Insurance Ombudsman dated 1.11.2004. However, the fact of the matter is that Ashok Kumar was travelling as a gratuitous passenger in breach of the mandatory conditions of Insurance Policy, Ext. RW 1/A. The Insurance Company cannotbe forced to indemnify the appellants in the case of gratuitous passenger. 10Their Lordships of the Hon’ble Supreme Court in New India Assurance Co. Ltd. vs. Asha Rani and others, (2003) 2 SCC 223 , have held that the insurer is not liable to pay compensation to the owner of the goods or his authorized representative on being carried in a goods vehicle. Their Lordships have held as under: “9. Under the Motor Vehicles Act of 1939 the requirements of policies and limits of liability had been provided in section 95. Proviso to section 95(1) of the said Act unequivocally states that the policy shall not be required in case of a goods vehicle for passengers being carried in the said vehicle. In Mallawwa (smt.) and Others v. Oriental Insurance Co. Proviso to section 95(1) of the said Act unequivocally states that the policy shall not be required in case of a goods vehicle for passengers being carried in the said vehicle. In Mallawwa (smt.) and Others v. Oriental Insurance Co. Ltd. and Others (supra) while approving the earlier decision 170 of the Court in Pushpabai Purshottam Udeshi’s case, the Court construed the provisions of section 95(1)(b) of the Motor Vehicles Act, 1939 and held that while the expression ‘any person’ and the expression ‘every motor vehicle’ are in wide terms but by proviso (ii) it restricts the generality of the main provision by confining the requirement to cases where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, therefore, the vehicle had to be vehicle in which passengers are carried. The Court further held that the goods vehicle cannot be held to be a passenger vehicle even if the vehicle was found to be used on some stray occasions for carrying passengers for hire or reward. Undoubtedly Mallawwa’s case (supra) was dealing with a situation under the Motor Vehicles Act, 1939. 10. In Satpal’s case (supra) the Court assumed that the provisions of section 95(1) of 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. 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 Amended Act of 1994 is examined, particularly section 46 of Act 6 of 1994 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 widest interpretation is given to the expression ‘to any person’ it will not cover either the owner of me 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 pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of section 147 and making it compulsory for the insurer to insure even in 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, therefore must be held to have not been correctly decided and the impugned judgments 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.” 11Their Lordships of the Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Swaroopa and ors., (2005) 11 SCC 419 have held that the liability of the Insurance Company does not cover gratuitous passenger carried in goods vehicle. Their Lordships have held as under: “4. Respondents 1 to 6 are the legal representatives of the deceased who died in an accident on 28-1-1996 leading to the filing of a claim petition on 9-7-1996 under the provisions of the Motor Vehicles Act, 1988. By order dated 20-8-1990 (sic), the Motor Accidents Claims Tribunal (for short “the Tribunal”) granted compensation both against the appellant Insurance Company and the owner of the vehicle, Respondent 7 herein. The appeal filed in the High Court by the appellant Insurance Company disputing its liability to pay to the legal representatives of the deceased was dismissed on 27-8- 2002, in view of the law then prevailing as a result of the decision of this Court in New India Assurance Co. v. Satpal Singh( (2000)1 SCC 237 : 2000 SCC (Cri) 130). The said decision has now been overruled by this Court in New India Assurance Co. Ltd. v. Asha Rani( (2003) 2 SCC 223 : 2003 SCC (Cri) 493) wherein it has been held that an insurance company will not be liable to pay compensation in respect of a gratuitous passenger being carried in a goods vehicle if the vehicle meets with an accident. In this view, we set aside the impugned judgment of the High Court affirming the order of the Tribunal. The claim petition against the appellant shall stand dismissed. In this view, we set aside the impugned judgment of the High Court affirming the order of the Tribunal. The claim petition against the appellant shall stand dismissed. We, however, clarify that the amount of compensation, if any, that may have been paid to Respondents 1 to 6 shall be recoverable by the Insurance Company from the owner of the vehicle, Respondent 7 herein and not from the legal representatives of the deceased.” 12 Same principle has been reiterated by their Lordships of the Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Bommithi Subbhayamma and others, (2005) 12 SCC 243 . Their Lordships have held as under: “6. The learned counsel appearing for the appellant submitted that in view of the fact that the decision of this Court in Asha Rani the impugned judgment cannot be sustained. The learned counsel appears to be correct. 7. In Asha Rani this Court while overruling Satpal Singh has clearly held that the Insurance Company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle”. 13.In view of discussions, analysis and observations, made herein above, there is no merit in the appeal. The same is dismissed accordingly, so also the pending application(s), if any. No costs.