JUDGMENT 1. Aggrieved by the award dated 31.03.2004 in M.V.O.P.No.299 of 1999 passed by the Chairman, M.A.C.T-cum-District Judge, Chittoor (for short ‘the Tribunal’), the claimants preferred the instant appeal. 2. The appellants 1 to 3 herein are the claimants 1 to 3 in the O.P and respondents 1 and 2 herein are respondents 1 and 2 in the O.P. 3. The factual matrix of the case is thus: (a) The 1st claimant is the wife and claimants 2 and 3 are the minor sons of the deceased – K. Rajendra Reddy and they are residents of Thupalle Village in Chittoor District. Their case is that on the night of 18.10.1997, the deceased loaded five Urea bags in the lorry bearing No.AP 26 T 549 and boarded the lorry at Chittoor to go to his village Thupalle, after getting down at M.Bandapalle. There were some other passengers traveling in the lorry. On the way when the lorry reached Mahankalamma Temple near M. Bandapalle, the driver drove the lorry in a rash and negligent manner and swerved it to the left side of the road and thereby lorry overturned and fell hitting against the boulders. As a result, the cabin was completely damaged and the persons in the cabin i.e, deceased and one Venkatesu received grievous injuries and died on the spot. It is averred that due to the death of deceased, the claimants who are his dependants lost their bread-earner. It is further averred that the accident occurred due to the fault of the lorry driver. On these pleas, the claimants filed M.V.O.P.No.299 of 1999 against respondents 1 and 2 who are the owner and insurer of the offending lorry and claimed Rs.3,00,000/- as compensation under different heads mentioned in the O.P. (b) First respondent remained ex parte. (c) The second respondent/Insurance Company filed counter and opposed the claim inter alia contending that the driver carried several unauthorized passengers including the deceased and the terms and conditions of the insurance policy do not cover the risk of such persons. On this main ground, the insurance company disowned its liability. (d) During trial, PWs.1 and 2 are examined and Exs.A.1 to A.4 were marked on behalf of claimants. Policy copy filed by the 2nd respondent was marked as Ex.B.1. On this main ground, the insurance company disowned its liability. (d) During trial, PWs.1 and 2 are examined and Exs.A.1 to A.4 were marked on behalf of claimants. Policy copy filed by the 2nd respondent was marked as Ex.B.1. (e) A perusal of the award would show that basing on the evidence of PW.2 – eye witness coupled with the documentary evidence such as Ex.A.1 – FIR, Ex.A.3 – M.V. Inspector’s report and Ex.A.4 – C.C of judgment in C.C.No.77 of 1998 on the file of IV Additional Judicial First Class Magistrate, Chittoor, the Tribunal held that the lorry driver was responsible for the accident. (f) Then quantum of compensation is concerned, the Tribunal awarded Rs.1,85,000/- with proportionate costs and simple interest at 9% p.a. (g) So far as liability is concerned, the Tribunal agreed with the contention of insurance company to the effect that the deceased and others traveled as unauthorized passengers in the offending vehicle which was already carrying Aluminum sheets and Ex.B.1 – policy do not cover the risk of such persons. In this regard, the Tribunal referred the decisions of Hon’ble Apex Court rendered in the cases of 1)New India Assurance Co. Ltd. vs. Asha Rani and others( 2002 (8) Supreme 594 )and 2) National Insurance Co. Ltd. vs. Baljit Kaur & others( AIR 2004 SC 1340 = 2004 (2) SCC 1 )and by following the ratio in the latter decision, held that the risk of gratuitous passengers in a goods vehicle will not be covered by the policies issued in terms of Section 147 of the Amended Act of 1994. Accordingly, the Tribunal held that the 2nd respondent/insurance company is not liable to answer the claim of the claimants and the 1st respondent/ owner alone is liable to pay compensation. Hence, the appeal by the claimants. 4. Heard arguments of Sri S.V. Muni Reddy, learned counsel for appellants/claimants and Sri V. Sambasiva Rao, learned counsel for respondent No.2. Case against respondent No.1 was dismissed for default on 15.12.2008. 5. (a) Learned counsel for appellants firstly argued that the Tribunal grossly erred in holding that the deceased was only a gratuitous passenger travelled in the ill-fated lorry. 4. Heard arguments of Sri S.V. Muni Reddy, learned counsel for appellants/claimants and Sri V. Sambasiva Rao, learned counsel for respondent No.2. Case against respondent No.1 was dismissed for default on 15.12.2008. 5. (a) Learned counsel for appellants firstly argued that the Tribunal grossly erred in holding that the deceased was only a gratuitous passenger travelled in the ill-fated lorry. He submitted that in spite of cogent evidence that the deceased travelled with urea bags by paying charges to the lorry driver and thus the owner of goods, the Tribunal did not consider the same in right perspective and on the other hand, held him as a gratuitous passenger and further held as if the 2nd respondent/insurance company was not liable to answer the claim of the claimants since the policy did not cover the risk of gratuitous/unauthorized passengers in a goods vehicle. He submitted that the Tribunal misapplied the law on gratuitous passengers to the deceased who in fact traveled as owner of the goods but not as a gratuitous passenger. Learned counsel alternatively argued that even if it is ultimately concluded that the claimants failed to prove that the deceased traveled in the vehicle as owner of the goods but not as gratuitous passenger, nonetheless, following the ratio laid down in BaljitKaur’s case (2 Supra), the Tribunal ought to have directed the 2nd respondent/insurance company to pay compensation at the first instance and then recover the same from the 1st respondent/owner of the vehicle. In this regard, he relied upon the decision reported in United India Insurance Co. Ltd vs. N. Appi Reddy ( 2011 (4) ALD 778 (DB)and submitted that in similar circumstances, relying on BaljitKaur’s case (2 Supra) our High Court ordered the Insurance Company to pay and recover the compensation amount. He thus prayed that liability may be fastened on the Insurance Company treating the deceased as owner of the goods and if not, it may be directed to pay and recover from the insured. (b) The second argument of learned counsel for appellant is that the compensation granted by the Tribunal is grossly low and inadequate. Expatiating it, he submitted that the Tribunal only took Rs.15,000/- p.a as the income of the deceased. (b) The second argument of learned counsel for appellant is that the compensation granted by the Tribunal is grossly low and inadequate. Expatiating it, he submitted that the Tribunal only took Rs.15,000/- p.a as the income of the deceased. As per the latest judgment reported in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another ( 2009 ACJ 1298 = AIR 2009 SC 3104 ), future earning prospects of the deceased should also be added to his income and compensation has to be computed accordingly. He further submitted that compensation for funeral expenses, loss of consortium and loss of estate has to be suitably enhanced inconsonance with the direction of Hon’ble Supreme Court in Rajesh and others vs. Rajbir Singh and others (2013 ACJ 1403)case. He thus prayed to enhance the compensation. (c) Thirdly, learned counsel submitted that the dismissal of appeal against 1st respondent/ owner of the vehicle will have no impact since he remained ex parte before the Tribunal and suffered award. So the appeal can be disposed of in his absence. In this regard, he relied upon the decision reported in MekaChakra Rao vs. Yelubandi Babu Rao @ Reddemma and others ( 2001 (1) ALT 495 (DB). 6. (a) Per contra, learned counsel for 2nd respondent/insurance company submitted that there was absolutely no cogent and reliable evidence to hold that the deceased traveled in the capacity of owner of goods and the FIR, charge sheet and other documents do not speak so and the theory of traveling with urea bags was invented for the first time during evidence and hence considering the evidence on record, the Tribunal rightly held that the deceased was only a gratuitous passenger with reference to the crime vehicle. Learned counsel further submitted that the terms of Ex.B.1- policy are clear that the policy do not cover the risk of a gratuitous passenger like deceased other than owner of the goods. Therefore, he emphasized, the Tribunal was perfectly right in exonerating the insurance company from its liability and there is no need to interfere with the award. (b) Regarding the alternative argument of appellant, he submitted that when there is no liability for insurance company, the question of paying the compensation by it at first and recovering later does not arise and the principle enshrined in BaljitKaur’s case (2 Supra) cannot be interpreted in that fashion. (b) Regarding the alternative argument of appellant, he submitted that when there is no liability for insurance company, the question of paying the compensation by it at first and recovering later does not arise and the principle enshrined in BaljitKaur’s case (2 Supra) cannot be interpreted in that fashion. Thus he submitted that when the argument of insurance company on its lack of liability is upheld, it may not be alternatively directed to pay and recover the compensation. Secondly, he argued that the compensation granted under different heads was just and reasonable and there is no need to enhance the same particularly in the absence of 1st respondent/owner. He thus prayed to dismiss the appeal. 7. In the light of the above rival arguments, the points for determination in this appeal are: (1) Whether the deceased travelled in the ill-fated lorry in the capacity of owner of goods and if not whether his risk was covered under the terms of Ex.B.1- policy? (2) If Ex.B.1- policy does not cover the risk of deceased, whether alternatively insurance company can be directed to pay compensation and then recover from the insured? (3) Whether compensation awarded by the Tribunal is just and reasonable and needs enhancement in the absence of 1st respondent/ owner? 8. POINT No.1: Regarding this point, a perusal of Ex.A.1- FIR which was lodged by D. Markondaiah, one of the victims of the accident would not give any reference about the deceased travelling with urea bags in the capacity of owner of the goods. In Ex.A.4 – C.C of judgment also there was no mention about the deceased carrying urea bags in the lorry. On the other hand in Ex.A.1- FIR it was mentioned as if the lorry was loaded with Aluminum plates which stuck to the passengers when it overturned. That being so, for the first time it is pleaded in the O.P to the effect that the deceased travelled with five urea bags in the lorry and dubbed him as owner of the goods. Hence, it is to be seen whether under law the deceased can claim to have travelled qua owner of the goods. 9. The accident in this case took place on 18.10.1997 i.e. subsequent to the introduction of amendment to Motor Vehicles Act, 1988 w.e.f. 14.11.1994. Section 147 of the M.V. Act speaks about the requirements of policies and limits of liability. 9. The accident in this case took place on 18.10.1997 i.e. subsequent to the introduction of amendment to Motor Vehicles Act, 1988 w.e.f. 14.11.1994. Section 147 of the M.V. Act speaks about the requirements of policies and limits of liability. Sub-section (1) describes the class of persons whose liability is covered under the terms of policy issued under Section 147, whereas sub-section (2) speaks about the extent of the liability. Thus the amended Section 147 (1) (b) of the Motor Vehicles Act, reads thus: “(b) Insures the person or classes of persons specified in the policy to the extent specified in the 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 authorized 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 of a public service vehicle caused by or arising out of the use of the vehicle in a public place.” 10. It is in the context of above provision that the claimants contend that the deceased travelled as owner of the goods to bring him under the umbrella of policy. However, the evidence would show that the lorry was originally laden with Aluminum plates and there was not even an insinuating whisker in the evidence except the harping of the claimants that the deceased travelled as owner of the goods. Therefore, the Tribunal has rightly held that the deceased travelled only as a passenger but not as owner of the goods. Then a perusal of Ex.B.1- policy would show that different fares were collected to give coverage to the liability of – public risk (third party); non-fare paying passenger (owner of the goods); increased third party property damage; legal liability of persons employed in connection with the operation and/or loading or unloading of motor vehicles etc. Thus it is clear that no coverage was extended to the risk of either gratuitous or fare paid passengers like deceased under Ex.B.1- policy. Thus it is clear that no coverage was extended to the risk of either gratuitous or fare paid passengers like deceased under Ex.B.1- policy. Added to it, regarding the conditions of usage of vehicle to cover the policy, it is mentioned that the vehicle can be used except for carrying passengers in the vehicle, except employees (other than driver) not exceeding six in number coming under the purview of Workmens’ Compensation Act, 1923. Thus, it is clear that the deceased had not travelled in any of the permissible capacities. 11. (a) The precedential law on gratuitous/fare paying passengers in a goods vehicle is no more res integra. In New India Assurance Company vs. Satpal Singh and others (AIR 2000 Supreme Court 235 (1)(decided on 02.12.1999), the facts were that a 10 year old girl while traveling in a truck died on 11.03.1990 when the truck met with accident. The Insurance Company disowned its liability on the contention that the deceased was a gratuitous passenger. It was in that context declining its plea, Hon’ble Supreme Court held thus: “The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-à-vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.” (b) Thus in the above decision, the Supreme Court with reference to Section 147 of Motor Vehicles Act, 1988 (as it stood before amendment w.e.f 14.11.1994) held that the risk of a gratuitous passenger in a goods vehicle was covered. However it must be said that the above decision was overruled subsequently. (c) In New India Assurance Company Limited vs. Asha Rani and others (1 Supra) (decided on 03.12.2002), the Supreme Court had an occasion to consider the correctness of its earlier decision rendered in SatpalSingh’s case (7 Supra). In this decision, it was held that the judgment in SatpalSingh’s case (7 Supra) was not correct and accordingly overruled. A number of reasons were quoted to come to the said conclusion. In this decision, it was held that the judgment in SatpalSingh’s case (7 Supra) was not correct and accordingly overruled. A number of reasons were quoted to come to the said conclusion. Precisely, in this decision the judgment of the SatpalSingh’s case (7 Supra) was found fault on the ground that the said judgment went on a wrong premise that the phrase “any person” used in Section 147(1)(b)(i) of Motor Vehicles Act includes gratuitous passengers also but that is not so and the meaning of the words “any person” must be attributed to “a third party”. Thus the decision in SatpalSingh’s case (7 Supra) was overruled. (d) Subsequently, in Oriental Insurance Company Limited vs. Devireddy Konda Reddy and others (2003 ACJ 468 = AIR 2003 SC 1009 ) (decided on 24.01.2003), the Supreme Court again considered the same issue. Relying on AshaRani’s case (1 Supra), the Supreme Court reiterated that the provisions of Motor Vehicles Act, 1988 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. (e) The next in the series is the decision in BaljitKaur’s case (decided on 06.01.2004). In that case the Supreme Court was considering the question as to whether an insurance policy issued in respect of goods vehicle would cover gratuitous passengers in the light of Section 147 of M.V. Act (Amendment Act 1994 w.e.f. 14.11.1994). Brief facts of the case are that the victim who was returning in a truck from a marriage ceremony on 19.02.1999 died as a result of rash and negligent driving by the driver of the truck. The crime vehicle no doubt was insured with insurance company. The Claims Tribunal relying on SatpalSingh’s case (7 Supra) fastened liability on insurance company despite its protest that the deceased was a gratuitous passenger in a goods vehicle and it had no liability. The High Court upheld the verdict of Tribunal. The matter went up to Supreme Court. It was brought to the notice of the respondents/ claimants about overruling of SatpalSingh’s case (7 Supra) subsequently in AshaRani’s case (1 Supra) which was followed in DevireddyKondareddy’s case (8 Supra). The High Court upheld the verdict of Tribunal. The matter went up to Supreme Court. It was brought to the notice of the respondents/ claimants about overruling of SatpalSingh’s case (7 Supra) subsequently in AshaRani’s case (1 Supra) which was followed in DevireddyKondareddy’s case (8 Supra). However their argument was that those two cases were decided with respect to the position prevailing prior to the amendment of Section 147 of M.V.Act (Amendment Act, 1994) and as such the effect of Legislative Amendment in 1994 was not in question in the above cases. Whereas the accident in their case (BaljitKaur’s case) was occurred subsequent to the Amendment of M.V. Act in 1994 and so the liability of insurance company has to be decided afresh in terms of the Amendment Act, 1994. Thus the Supreme Court again considered the liability of insurance company in respect of a gratuitous passenger in a goods vehicle in terms of Amended Act in 1994. It was held thus: “20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. 21. The upshot of the aforementioned discussions is that instead and in place of the insurer, the owner of the vehicle shall be liable to satisfy the decree.” (f) So the Supreme Court observed that despite the amendment of M.V. Act w.e.f 14.11.1994, the position of gratuitous passengers with reference to a goods vehicle has not been changed and insurance company is not liable to bear their responsibility and owner alone shall be liable. It may be noted that apart from the above observation the Supreme Court made another observation also directing insurance company to pay and recover the compensation. It may be noted that apart from the above observation the Supreme Court made another observation also directing insurance company to pay and recover the compensation. About the applicability of the said observation to the instant appeal will be discussed in the point no.2 infra. (g) The ratio in BaljitKaur’s case (2 Supra) was followed subsequently in the cases of National Insurance Company Limited vs. Bommithi Subbhayamma and others ( 2005 (12) SCC 243 ) and National Insurance Company Limited vs. Prema Devi and others ( 2008 ACJ 1149 = (2008) 5 SCC 403 ) and held that insurance company was not responsible in respect of the gratuitous passengers. (h) So as can be seen above, the Supreme Court has consistently reinforced the law and held that the liability of a gratuitous/unauthorized passenger in a goods vehicle will not be covered under Section 147 of M.V. Act either prior or subsequent to its amendment w.e.f 1994. 12. So point No.1 is concerned, deceased was only a gratuitous passenger with reference to crime vehicle and his risk is not covered under the terms of the policy. 13. POINT No.2: This point is concerned, the alternative plea of appellant is that if the deceased is held only as a gratuitous passenger, still basing on the observation in BaljitKaur’s case(2 Supra), the insurance company may be directed to pay compensation and recover from the insured. Hence the relevant observation of Supreme Court in BaljitKaur’s case (2 Supra) has to be perused. While observing that the risk of a gratuitous passenger in a goods vehicle will not be covered under the terms of the policy, the Supreme Court made another observation as follows: “We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant, herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle.” 14. The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant, herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle.” 14. In my considered view, this observation made on equitable grounds applies only to limited cases i.e. those cases where, basing on SatpalSingh’s case (7 Supra) which was by then a law, if compensation was granted to a gratuitous passenger in a goods vehicle against insurance company and the appeal carried out by the insurance company is allowed basing on AshaRani’s case (1 Supra), in such circumstances though insurance company is exonerated by virtue of AshaRani’s case (1 Supra), still it can be directed to pay compensation at first and recover the same from the owner/insured. Except to those limited cases, pay and recover ordered in BaljitKaur’s case (2 Supra) will not apply to other cases, muchless to the cases where a Tribunal ignoring AshaRani’s case (1 Supra) fastened liability on insurance company basing on SatpalSingh’s case (7 Supra). Since in the instant case by the date of award passed by the Tribunal, AshaRani’s decision (1 Supra) was already given and the Tribunal did not rely on SatpalSingh’s decision (7 Supra), the question of directing insurance company to pay and recover compensation does not arise. Hence the contention of appellant is negatived. 15. POINT No.3: This point is concerned, the contention of the appellant is that the Tribunal erred in taking the earnings of the deceased as Rs.15,000/- per annum and it ought to have added future prospects to his earnings as per SarlaVerma’s case (4 supra). I am unable to accept this contention. The Tribunal for lack of evidence regarding earnings of the deceased had taken the annual income of the deceased as Rs.15,000/- per annum following the second schedule of MV Act and accordingly computed compensation for loss of dependency. As per SarlaVerma’s case (4 Supra) taking future prospects into consideration arises in case of salaried persons. In that decision it was made clear that whether the deceased was a self-employed or was a fixed salary, the Courts shall take only actual income at the time of death. As per SarlaVerma’s case (4 Supra) taking future prospects into consideration arises in case of salaried persons. In that decision it was made clear that whether the deceased was a self-employed or was a fixed salary, the Courts shall take only actual income at the time of death. So, the question of adding future prospects to the notional income of the deceased does not arise. I find no irregularity in respect of other items of compensation fixed by the Tribunal also. 16. In view of the above discussion, I find no merits in the appeal and accordingly, the MACMA is dismissed by confirming the award dated 31.03.2004 in M.V.O.P 299 of 1999 passed by the Tribunal. No order as to costs. As a sequel, miscellaneous applications if any pending in this appeal, shall stand closed.