JUDGMENT : S.G. Shah, J. 1. Heard the learned advocate Mr. Hemal Shah for the appellant and learned advocates Ms. Karuna V. Rahevar as well as Ms. Sharmishta A. Dave for the concerned respondents. Perused the record. 2. The appellant herein is original claimant in Motor Accident Claim Petition No. 533 of 2001 before the Motor Accidents Claims Tribunal (Aux.) of Rajkot. Such petition was preferred by the appellant claiming Rs. 8,00,000 towards compensation for the injuries sustained by him in a vehicular accident which took place on 7.10.2000 between two vehicles being Matador No. GBQ 2257 and truck No. GJ 11-T 9924. 3. It is undisputed fact that appellant-claimant being victim of the road accident was passenger in such Matador and he was not driving any of the vehicles and, therefore, by all means, this is the case of composite negligence between more than one tortfeasor, herein two tortfeasors, drivers of both the vehicles under reference and, therefore, it is settled legal position that the claimant, being third party to the incident and insurance companies of both vehicles, is entitled to recover full amount of compensation from either of the tortfeasors irrespective of their inter se liability based upon percentage of negligence of both such tortfeasors, i.e., drivers of both the vehicles. 4. It is also undisputed fact that the claimant has claimed compensation contending that both the drivers were negligent and, therefore, owners and insurance companies of both the vehicles were joined as opponents before the Tribunal. The Tribunal has, after allowing both the sides to adduce their evidence, come to the conclusion that looking to the available evidence before it driver of the truck was negligent to the extent of 20 per cent whereas driver of Matador was negligent to the extent of 80 per cent. However, as aforesaid, irrespective of fixing such different percentage of negligence of different drivers of different vehicles, the claimant is entitled to recover full amount of compensation from either of the tortfeasors because as aforesaid, he is third party both to the incident and to the insurance companies of both the vehicles. 5. However, unfortunately, the Tribunal has, in para 5 of the impugned judgment and award dated 1.3.2014, observed that though claimant is entitled to total amount of Rs. 4,60,000 as compensation, the owner and insurer of Matador has to pay 80 per cent of such amount, i.e., Rs. 5. However, unfortunately, the Tribunal has, in para 5 of the impugned judgment and award dated 1.3.2014, observed that though claimant is entitled to total amount of Rs. 4,60,000 as compensation, the owner and insurer of Matador has to pay 80 per cent of such amount, i.e., Rs. 3,68,000 and owner and insurer of truck has to pay 20 per cent of the amount, i.e., Rs. 92,000 only. The Tribunal has also directed the drivers and owners of both the vehicles to deposit their amount of share in operative order. Therefore, practically, insurance companies of both the vehicles have to pay the compensation to the claimant so as to indemnify their insured-owner of the vehicles. 6. It seems that after such award, the original opponent No. 2, United India Insurance Co. Ltd., who is respondent No. 2 herein being insurer of Matador has preferred an application being Motor Accident Claims (Review) Application No. 5 of 2014 before the Tribunal contending that the vehicle insured by them was only by 'Act policy' whereby the owner of the vehicle has insured himself only towards his liability to pay compensation to the third party and not for all kind of victims including occupant of the vehicle. The respondent insurance company has also referred few judgments of the different courts to confirm that in case of 'Act only policy', liability of insurance company cannot be fixed for the injuries sustained by the victim as occupant of the vehicle. Unfortunately, while allowing such application by order dated 26.11.2014, the Tribunal has observed and held as under: "Going through the judgment cited by Mr. Modha, learned advocate for the insurance company, it appears that in the case of 'Act only policy' and in case of error of the Tribunal, apparent on the face of the record is maintainable. In case of 'Act only policy', the insurance company cannot be held responsible. Therefore, the judgment cited by the learned advocate, Mr. Modha, is applicable to the facts of the present case. (4) So far as contention of original claimant is concerned, this court is of the view that holding jointly and severally liable the insurance company will be material alteration of the judgment and award and such material alteration in the judgment is not permitted in view of this court. (5) Therefore, arguments advanced by the original claimant are not acceptable. (4) So far as contention of original claimant is concerned, this court is of the view that holding jointly and severally liable the insurance company will be material alteration of the judgment and award and such material alteration in the judgment is not permitted in view of this court. (5) Therefore, arguments advanced by the original claimant are not acceptable. Therefore, in view of the above said discussion, following order will meet the ends of justice. ORDER (1) The review application is hereby allowed. (2) Mistake in the judgment apparent so far as 'Act only policy' is concerned, is hereby ordered to be rectified. It is hereby held that the applicant-insurance company is exonerated from the liability to pay compensation." 7. Therefore, appellant herein has challenged such order; so also original award contending that irrespective of inter se dispute between the insured and insurer of either of the vehicles; so also inter se liability to make payment to the injured claimant, when claimant is entitled to full set of compensation from either of the tortfeasors, the observation and direction of the Tribunal in original award so as to restrict liability of owner and insurer of both the vehicles to the extent of percentage of negligence of their driver, the claimant is unable to get fruits of the original award because now by such order dated 26.11.2014, Tribunal has exonerated the liability of the insurance company, i.e., insurance company of Matador who is otherwise liable to pay 80 per cent amount of compensation, i.e., Rs. 3,68,000. 8. In support of his submission, learned advocate for the appellant is relying upon the decision of the Hon'ble Supreme Court in the case of Pawan Kumar v. Harkishan Dass Mohan Lal, 2014 ACJ 704 (SC), wherein Hon'ble Supreme Court has specifically held that High Court was not correct in apportioning the liability for the accident between the drivers/owners of two vehicles and, thereby, it is held that drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them. It was similar case like present wherein passengers in a jeep were injured and died and though the Tribunal has fixed the liability jointly and severally of both the vehicles, in appeal High Court has apportioned the liability with a direction that claimant has to recover compensation as per such apportionment only. However, such decision by High Court was reversed by the Hon'ble Supreme Court. 9. In view of above facts and circumstances and when it is settled legal position that irrespective of inter se negligence of different tortfeasors, the claimant who is otherwise third party is entitled to recover full amount of compensation from either of the tortfeasors and, thereby, owner of the vehicle and in that case, insurance company of such vehicle is supposed to indemnify the owner by making full payment of compensation to the victim of the road accident irrespective of percentage of negligence of such driver which may be even as less as 1 per cent also. Therefore, the impugned award is to be modified so as to confirm that claimant is entitled to recover full compensation from either of the tortfeasors and in turn its insurer irrespective of percentage of his contribution to the incident. 10. The next question is regarding the liability of the insurance company with reference to the nature of policy submitting that liability of the insurance company would be different in case of different type of policy issued by them. Though it is certain that liability of the insurance company is arising under the MV Act and, thereby, it is statutory liability and though there is no separate identity of distinguishable features of different type of policies, day in and day out, the insurance companies are coming forward with a different plea that either they are not liable in view of a particular type of policy or that their liability is limited in particular manner. One such instance is pleaded and tried to be proved in this case also when one of the insurance companies has pleaded that their policy is 'Act only policy' and, therefore, they are not liable to indemnify the owner for payment of compensation to the occupant of the vehicle in private car, the fact remains that practically policy to be issued by the insurer shall be as provided under section 147 of the MV Act, 1988 wherein there is no definition of different type of policies as pleaded by the insurer. Section 147 is reproduced hereunder: " 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 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; (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: Provided that a policy shall not be required-- (1) 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 in respect of the death of, 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-section (1), a policy of insurance referred to in sub-section (1) shall cover any liability incurred in respect of any accident up to the following limits, namely:-- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 11. The bare reading of the section makes it clear that a policy of insurance must insure the person, i.e., owners of the vehicle against (i) 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 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 and against (ii) 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. 12. While considering such provision, it is to be recollected that by the amendment of such provision vide the Amendment Act 54 of 1994 (w.e.f. 14.11.1994), the words "including the owner of the goods or his authorised representative carried in the vehicle" were inserted. Such situation arose because till such amendment, in absence of such clarity, the insurance companies were taking a stand that their policies do not cover the liability to pay compensation to the owner of the goods or his representative carried in the goods vehicle. So far as limits of liability is concerned, sub-section (2) makes it clear that subject to the provisions of sub-section (1), a policy of insurance shall cover any liability incurred in respect of any accident for the amount of liability incurred except a limit of Rs. So far as limits of liability is concerned, sub-section (2) makes it clear that subject to the provisions of sub-section (1), a policy of insurance shall cover any liability incurred in respect of any accident for the amount of liability incurred except a limit of Rs. 6,000 in respect of damage to any property of a third party, whereas, the proviso to sub-section (1) confirms that the policy shall not be required to cover liability in respect of the death, arising out of and in the course of employment, of the employee of a person insured, i.e., owner of the vehicle or in respect of bodily injuries 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 or to cover any contractual liability. 13. Therefore, when there is specific exclusion clause in proviso to sub-section (1) as referred in sub-section (2), the insurance policy must be a policy which covers the risk in respect of the death of or bodily injuries to any person, including owner of the goods or his authorised representative carried in the vehicle. Thereby, when there is no restriction or exclusion of covering the occupant of the vehicle except the driver or maybe conductor for whom as per the proviso of policy may not cover the risk, for rest of the persons excluding the owner being party to the contract of insurance practically insurance company is liable to pay compensation to indemnify the owner. Such interpretation is quite clear and obvious when phrase 'injury to any person' is used in the section without making any differentiation between the occupant or non-occupant of the vehicle, on the contrary clarifying that even in goods vehicle if a person is travelling with the goods, the insurance company is liable to indemnify the insured owner. 14. Such interpretation is quite clear and obvious when phrase 'injury to any person' is used in the section without making any differentiation between the occupant or non-occupant of the vehicle, on the contrary clarifying that even in goods vehicle if a person is travelling with the goods, the insurance company is liable to indemnify the insured owner. 14. But unfortunately as the words "including the owner of the goods or his authorised representative carried in the vehicle" were missing even in MV Act, 1988; so also in MV Act, 1939 and when insurance companies were taking a stand to exonerate their liability of making payment of compensation to such victims and, thereby to indemnify the owner, the legislature has amended the above words so as to include even owner of the goods travelling in a goods vehicle though policy of insurance regarding rules under the Act generally prohibits travelling of a person in a goods vehicle. Thereby, when there were no distinguishable features of the phrase 'Any person' the legislature has to widen the scope of liability of the insurance company because of their different stand. 15. But unfortunately in similar situation for private vehicle, in absence of similar amendment, the insurance companies are taking such false and negative plea submitting that their policy does not cover the risk of occupant of the vehicle though there is no such distinguishable provision in the statute. 16. As per the provisions of section 147 of the Motor Vehicles Act, 1988 a policy of insurance must be a policy which insures the person 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 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. The policy shall also cover any liability incurred in respect of any accident 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. The policy shall also cover any liability incurred in respect of any accident 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. Though policy shall not be required (1) to cover liability in respect of the death, arising out of and in the course of 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 in respect of the death of, or bodily injury to, any such employee who is either (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as 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 (2) to cover any contractual liability. The explanation to sub-section (1) declares, for the removal of doubts, 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. 17. The statute confirms that liability to pay compensation is with respect to 'any person' and there is no diversion of third person, because 'any person' certainly includes third person. Similarly, when the statute provides exclusion clause that for whom liability is not to be included, there is no reference of 'third party or occupant of private car' in such exclusion and, therefore also, it is clear that 'any person' certainly includes all persons including third party but except class of persons specifically excluded under the statute. Similarly, when the statute provides exclusion clause that for whom liability is not to be included, there is no reference of 'third party or occupant of private car' in such exclusion and, therefore also, it is clear that 'any person' certainly includes all persons including third party but except class of persons specifically excluded under the statute. The overall reading of the provision makes it clear that if we believe the submission of insurance companies that occupants of the car are not insured in policy which is compulsory, then, practically, they are the only class of people who are excluded from coverage of insurance by the insurance companies, which is certainly not the scope of the statute. 18. In Dr. S. Jayaram Shetty v. National Insurance Co. Ltd., 2002 ACJ 2054 (Karnataka), meaning of third party has been held on the lines of the meaning given in Stroud's Judicial Dictionary. Meaning of third party has been given in Stroud's Judicial Dictionary as below: " Third party risks.- -Road Traffic Act, 1930 (c. 43), (s. 35), Road Traffic Act, 1972 (c. 20), (s. 143) connotes that the insurer is one party to the contract, that the policyholder is another party, and that the claims made by others in respect of the negligent use of the car may be naturally described as claims by third parties." 19. In view of above definition, arguments of learned counsel for the insurance companies are not tenable. In National Insurance Co. Ltd. v. Faqir Chand, 1996 ACJ 111 (J & K), it has been held that in the context of MV Act, 1988, the expression 'third party', being other than the contracting parties to the insurance policy, should include everyone, be it a person travelling in another vehicle, one walking on the road or a passenger in the vehicle itself, which is the subject-matter of insurance policy. Every insured takes out an insurance policy against a third party risk, and enters into a contract with the insurer, only with the motive, intention and purpose of covering the risks which may arise in relation to claims lodged by a third party against him. 20. In National Insurance Co. Every insured takes out an insurance policy against a third party risk, and enters into a contract with the insurer, only with the motive, intention and purpose of covering the risks which may arise in relation to claims lodged by a third party against him. 20. In National Insurance Co. Ltd. v. Nirmala Bai, 2000 ACJ 932 (Rajasthan), it has been held that the expression '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 would include everyone, be it a person travelling in the vehicle itself or any other vehicle or one walking on the road. 21. In United India Insurance Co. Ltd. v. Siddanna Nimbanna Jawali, 2001 ACJ 1774 (Karnataka), it has been held that what is excluded from the ambit of the expression 'third party' is the owner of the vehicle. Where the owner of the vehicle has been injured in an accident caused by negligence of his own driver, he cannot maintain a claim for compensation against insurer of the vehicle. 22. In view of the mandate of above-mentioned judgments which are never overruled or referred before the Hon'ble Supreme Court, I have no hesitation to observe that claimant injured being passenger in Matador, one of the vehicles involved in accident, was a third party with reference to insurance policies of both vehicles and, therefore, insurance companies of both vehicles are liable to indemnify their insured by making payment of compensation to him. 23. Insurance is a contract whereby one party, the insurer, undertakes in return for a consideration--the premium, to pay the other--the insured or assured, in the event of the injuries sustained by any person by use of the vehicle so insured a sum of money payable to the victim of such event, where in the phrase 'any person' cannot exclude third party to such contract as pleaded by the insurance company on the ground that their policy is different in nature and covers different risk but does not cover legal liability fastened upon the insured by the statute, so as to indemnify such insured. 24. Motor third party insurance or third party liability cover, which is also referred to as the 'Act only' cover by the insurance companies, is a statutory requirement under the Act. 24. Motor third party insurance or third party liability cover, which is also referred to as the 'Act only' cover by the insurance companies, is a statutory requirement under the Act. It is referred to as a 'third party' cover since the beneficiary of the policy is someone other than the two parties involved in the contract, i.e., the insured and the insurance company. The policy does not provide any benefit to the insured; however, it covers the insured's legal liability for death/disability of third party and loss or damage to third party property. 25. The questions thus arising would be: What is third party insurance? Who is a third party? Why third party insurance is compulsory for all vehicles under the Motor Vehicles Act, 1988? What are the salient features of third party insurance? 26. There could be only two different kinds of insurance involved in the damages system. One is third party liability insurance, which is called liability insurance or Act policy by insurance companies and the other one is first party insurance, which is called comprehensive or package policy. However, there is nothing in the MV Act to distinguish or differentiate the policies as such. 27. A third party insurance policy is a policy under which the insurance company agrees to indemnify the insured person, if he is sued or held legally liable for injuries or damage done to a third party. The insured is one party, the insurance company is the second party, and the person who claims damages against insured because of the injuries sustained by the use of the vehicle is the third party except driver and employees on the vehicle, who are having some connection with the owner of the vehicle with reference to the functioning of the vehicle. 28. Third party insurance is compulsory for all motor vehicles. In G. Govindan v. New India Assurance Co. Ltd., 1999 ACJ 781 (SC), it was held that third party risks insurance is mandatory under the statute. This provision cannot be overridden by any clause in the insurance policy. Third party insurance does not cover injuries to the insured himself but to the rest of the world who is injured by the insured. Beneficiary of third party insurance is the injured third party, the insured or the policyholder is only nominal beneficiary of the policy. This provision cannot be overridden by any clause in the insurance policy. Third party insurance does not cover injuries to the insured himself but to the rest of the world who is injured by the insured. Beneficiary of third party insurance is the injured third party, the insured or the policyholder is only nominal beneficiary of the policy. In third party policies the premiums do not vary with the value of what is being insured because what is insured is the legal liability and it is not possible to know in advance, what that liability will be. Third party insurance is almost entirely fault-based thereby one has to prove the fault of the insured first and that injury occurred from the fault of the insured to claim damages from him but now with the amendment provision of section 163-A even fault of insured is not material if claimant chose to file claim under section 163-A. The third party insurance is unpopular with insurance companies as compared to first party insurance, because they never know the maximum amounts they will have to pay under third party policies, which they are unable to avoid being statutory policy, and probably because of such situation insurance companies are always trying to misguide the courts by their lucid submissions but without supporting evidence to hold that their liability is limited even towards third party, which is not the correct position of law and its intention. 29. The Motor Vehicles Act, 1988, which came into force on 1.7.1988 and is divided into 14 Chapters, 217 sections and 2 Schedules, makes it compulsory for every motor vehicle to be insured. Chapters X, XI and XII of the 1988 Act deal with compensation provisions. Sections 140 to 144 (Chapter X) deal with liability without fault in certain cases. Chapter XI (sections 145 to 164) deals with insurance of motor vehicles against third party risks. 30. Chapter VIII of the 1939 Act and Chapter XI of the 1988 Act have been enacted on the pattern of several English statutes. In order to find out the real intention for enacting section 96 of the 1939 Act, which corresponds to section 149 of the 1988 Act, it is relevant to trace the historical development of the law for compulsory third party insurance in England. In order to find out the real intention for enacting section 96 of the 1939 Act, which corresponds to section 149 of the 1988 Act, it is relevant to trace the historical development of the law for compulsory third party insurance in England. Prior to 1930, there was no law of compulsory insurance in respect of third party rights in England. As and when an accident took place the injured used to bring action against the motorist for recovery of damages. 31. However, in many cases it was found that the owner of the offending vehicle had no means to pay to the injured or the dependant of the deceased and in such a situation, the claimants were unable to recover damages. It is under such circumstances that various legislations were enacted. To meet the situation it is for the first time the Third Parties' Rights Against Insurance Act, 1930 was enacted in England. The provision of this Act found place in section 97 of the 1939 Act, which gave to the third party a right to sue insurer directly. Subsequently, the Road Traffic Act, 1930 was enacted which provided for compulsory insurance for motor vehicles. The provisions of this Act were engrafted in section 94 of the 1939 Act and section 146 of the 1988 Act. It is relevant that under section 38 of the English Act of 1930, certain conditions of insurance policy were made ineffective so far as third parties were concerned. The object behind the provision was that the third party should not suffer on account of failure of the insured to comply with those terms of the insurance policy. 32. Subsequently in 1934, the second Road Traffic Act was enacted. The object of this legislation was to satisfy the liability of the insured. Under this enactment, three actions were provided. The first was to satisfy the award passed against the insured. The second was that, in case the insurer did not discharge its liability the claimant had the right to execute decree against the insurer. However, in certain events, namely, what was provided in section section 96(2)(a) which corresponds to section 149(2)(a) of the 1988 Act, the insurer could defend its liability. 33. The third action provided for was contained in section 10(3) of the Road Traffic Act. However, in certain events, namely, what was provided in section section 96(2)(a) which corresponds to section 149(2)(a) of the 1988 Act, the insurer could defend its liability. 33. The third action provided for was contained in section 10(3) of the Road Traffic Act. Under this provision, the insurer could defend his liability to satisfy decree on the ground that insurance policy was obtained due to misrepresentation or fraud. This provision also found place in section 149(2)(b) of the 1988 Act. While enacting the 1939 Act and the 1988 Act, all the three actions were engrafted in section 96 of the 1939 Act and section 149 of the 1988 Act. However, neither the 1939 Act, nor the 1988 Act conferred greater rights on the insurer than what had been conferred in English law. Thus, in common law, an insurer was not permitted to contest a claim of a claimant on merits, i.e., offending vehicle was not negligent or there was contributory negligence. The insurer could contest the claim only on statutory defences specified in the statute. Thus while enacting Chapter VIII of the 1939 Act or Chapter XI of the 1988 Act, the intention of the legislature was to protect third party rights and not the insurers even though they may be nationalised companies. 34. Object of prohibition on use of motor vehicles without statutory insurance policy is to enable the third party suffering injuries from use of the motor vehicle to get damages irrespective of the financial capacity or solvency of the driver or the owner. 35. Chapter XI (sections 145 to 164) provides for compulsory third party insurance, which is required to be taken by every vehicle owner. It has been specified in section 146(1) that no person shall use or allow using a motor vehicle in public place unless there is in force a policy of insurance complying with the requirement of this Chapter. Contravention of the provisions of section 146 is an offence and is punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both (section 196). Section 147 provides for the requirement of policy and limit of liability. Contravention of the provisions of section 146 is an offence and is punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both (section 196). Section 147 provides for the requirement of policy and limit of liability. Every vehicle owner is required to take a policy covering against any liability which may be incurred by him in respect of death or bodily injury including owner of goods or his authorised representative carried in the vehicle or damage to the property of third party and death or bodily injury to any passenger of a public service vehicle. According to this section, the policy may not require to cover the liability of death or injuries arising to the employees in the course of employment except to the extent of liability under Workmen's Compensation Act. Under section 149 the insurer has been statutorily liable to satisfy the judgment and award against the person insured in respect of third party risk. 36. Insurance companies have been allowed no other defence except: (1) Use of vehicle for hire and reward when there is no permit to ply such vehicle; (2) For organising racing and speed testing; (3) Use of transport vehicle not allowed by permit; (4) Driver not holding valid driving licence or has been disqualified for holding such licence; and (5) Policy taken is void as the same is obtained by non-disclosure of material fact. 37. The insurance company cannot avoid the liability except on the grounds, and not any other ground, which have been provided in section 149(2). The Hon'ble Supreme Court has, while dealing with the provisions of Motor Vehicles Act, held that even if the defence has been pleaded and proved by the insurance company, they are not absolved from liability to make payment to the third party but can receive such amount from the owner-insured. The courts one after another have held that the burden of proving availability of defence is on insurance company and insurance company has not only to lead evidence as to breach of condition of policy or violation of provisions of section 149(2) but has to prove also that such act happens with the connivance or knowledge of the owner. If knowledge or connivance has not been proved, the insurance company shall remain liable even if defence is available. 38. If knowledge or connivance has not been proved, the insurance company shall remain liable even if defence is available. 38. According to the provisions of this section, the policy of insurance must be issued by an authorised insurer. It must be as per requirements as specified in sub-section (2). It must insure against liability in respect of death or bodily injury or damage to property of a third party. 'Third party' includes owner of the goods or his authorised representative carried in the vehicle and any passenger of a public service vehicle. 39. The policy of insurance must cover: (1) Liability under the Workmen's Compensation Act, 1923, in respect of death or bodily injury to any such employee: (a) engaged in driving the vehicle, or (b) the conductor or ticket examiner if it is a public service vehicle, or 40. Section 147 has to be given wider, effective and practical meaning so that it may benefit various categories of persons entitling them to claim compensation from the insurer or the insured or both. Insurer's liability commences as soon as the contract of insurance comes into force. The liability remains in existence during the operation of the policy. If the insurer has been a victim of fraud, he can recover the amount from the insured by a separate action against him. 41. Third party insurance protects the interest of a third party who becomes the victim of accident or injury caused by the fault of the insured. So any liability arising on the insured by the third party is mitigated by the insurance company. Third party insurance is compulsory under the Motor Vehicles Act, 1988. As the third party insurance is mandatory so it cannot be overridden by any clause in the insurance policy. 42. It is the duty of insurers to satisfy the judgments and awards against persons insured in respect of third party risks. 43. It seems that unfortunately insurance companies either fail to realize above position or selectively submit that though they are liable to pay compensation to third party, the occupant of the vehicle is 'occupant of the vehicle and not a third party'. 43. It seems that unfortunately insurance companies either fail to realize above position or selectively submit that though they are liable to pay compensation to third party, the occupant of the vehicle is 'occupant of the vehicle and not a third party'. I fail to realize that when there is no definition of 'third party' in the Act and, thereby when we are talking about third party we have to identify first party and second party which are certainly with reference to the policy document being a contract between first party and second party, i.e., insured-owner of the vehicle and insurance company which enters into an agreement whereby insurance company accepts the liability to indemnify the owner-insured against any liability which includes "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 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". It is also clear and obvious that the above words "including the owner of the goods or his authorised representative carried in the vehicle" were absent in section 95 of the MV Act, 1939 otherwise section is pari materia with section 147 which goes to show that though there are several amendments in the MV Act, 1988, the basic principle of statute is not changed so as to wipe out the basic principle of judicial pronouncement based upon the provision of MV Act, 1939 at the relevant time. 44. With this reference if we recollect that though in 1939 Act, legislature has not disclosed the clarification regarding 'any person' and though because of the different stand of the insurance companies before different courts in different matters, now, as late as in 1997, the legislature has amended the inclusion clause to the phrase 'any person' so as to include the owner of the goods travelling in goods vehicle; in fact, similar situation was there as back as in the year 1978 when Tariff Advisory Committee had to issue a circular which reads as under: "TARIFF ADVISORY COMMITTEE Bombay Regional Committee Circular MV No. 1 of 1978 Bombay, 17.3.1978. Insurance company's liability in respect of gratuitous passengers conveyed in a private car--Standard form for private car comprehensive policy--Section II Liability to third parties I am directed to inform insurers that advices have been received from the Tariff Advisory Committee to the effect that since the industry had all these years been holding the view that a comprehensive private car policy covers passenger liability the same practice should continue. In order to make this intention clear, insurers are requested to amend clause 1(a) of section II of the standard private car policy by incorporating the following words after the words 'death of or bodily injury to any person' appearing therein: 'including occupants carried in the motor car provided that such occupants are not carried for hire or reward'. I am accordingly to request insurers to make the necessary amendment on sheet 38 of the India Motor Tariff pending reprinting of the relevant sheet. All existing policies may be deemed to incorporate the above amendment automatically as the above decision is being brought into force with effect from 25.3.1977. Sd/- Regional Secretary" 45. Above circular is quoted in the judgment of Division Bench of this court in Harshvardhatiya Rudraditya v. Jyotindra Chimanlal Parikh, 1981 ACJ 277 (Gujarat). 46. Thereby, considering the language of the circular it becomes clear that though Tariff Advisory Committee has disclosed that for all those years insurance company was holding the view and same is to continue but for making such intention clear insurance companies were requested to amend the clause regarding liability in their policies so as to read it as if certain words are there in the policy even if they are not printed, i.e., including occupants carried in the motor car provided that such occupants are not carried for hire or reward. 47. 47. However, unfortunately, when such clarity is not made part of the section in the Act of 1988 though wider coverage is confirmed by amendment in the year 1994 so as to include the liability even in case of a goods vehicle for a person travelling in goods vehicle with goods, unfortunately, insurance companies are repeatedly taking the same stand which was very well clear as back as in the year 1978 that in absence of inclusion of the words "including occupants carried in the motor car provided that such occupants are not carried for hire or reward" they are not liable to pay compensation to the occupant in private car so as to indemnify the owner against such liability, which is otherwise statutory liability and insurance companies cannot escape themselves from such liability. For making such plea effective, the insurance companies have come forward with different identification of the policies and named it as 'Act only policy' and 'comprehensive/package policy', etc. 48. As aforesaid, though there is no bifurcation/distinguishable feature of insurance policies in MV Act, even if insurance companies are differentiating their policy documents based upon their coverage of risk, the fact remains that their liability to indemnify the owner by making the payment of compensation to the victim of road accident arising out of the use of motor vehicle in public place when there is valid insurance policy of any nature because the Act does not identify or deviate or restrict the liability for any such class of people, viz., occupant of the car. 49. It is surprising to note that insurance companies are identifying third party as somebody outside the vehicle only probably they fail to realize that the term 'third party' is not with reference to the car but with reference to the contract in form of insurance policy wherein insured and insurer are first and second party and rest of the persons become third party to such insurance policy which includes in the clause 'any person' appearing in section 147 of the Act and other proviso of the Act when it does not restrict the liability with reference to occupant of the car in any manner whatsoever except for hire and reward as disclosed in the circular dated 17.3.1978 which is reproduced hereinabove. 50. 50. I have no option but to discuss all such historical developments for the simple reason that unfortunately insurance companies are taking disadvantage of their position as seen from the above Harshvardhatiya, 1981 ACJ 277 (Gujarat), wherein it is clear that till 25.3.1977, insurance companies were pleading before the courts that they are not liable to pay compensation to the occupant of private car but when Tariff Advisory Committee has issued a circular stating that "...the industry had all these years been holding the view that a comprehensive private car policy covers passenger liability the same practice should continue" and "...in order to make this intention clear..." 51. The reading of the decision in the case of Harshvardhatiya, 1981 ACJ 277 (Gujarat), goes to show that in fact in several cases including the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co., 1977 ACJ 343 (SC), so also in the case of Harshvardhatiya (supra), initially, the insurance companies had taken a stand that insurance company would not be liable to pay compensation to the gratuitous passenger of private car. However, language of the circular goes to show that in fact the insurance industry had accepted such liability and circular is issued only in order to make this intention clear. Therefore, there is practically no chance or possibility of different judicial decision when intention of the insurance company was clear to cover the liability of occupant of car being a gratuitous passenger. 52. But unfortunately, even after couple of decades, all the insurance companies are regularly taking the same defence in different matters before different courts and such matters had been dragged up to the Hon'ble Supreme Court since long though it is clear that (1) words 'any person' would include gratuitous passenger, (2) section 95 requires a policy to cover the risk to passengers who are not carried for hire or reward and (3) the expression 'any person' in the insurance policy would include an occupant of the car who is gratuitously travelling in the car. Some of such cases are as under: (1) Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531 (SC). (2) Prabhudayal Agarwal v. Saraswati Bai, 1975 ACJ 355 (Orissa). (3) Premier Insurance Co. Ltd. v. Gambhirsing Galabsing, AIR 1975 Guj 133 . (4) Madras Motor & Genl. Ins. Co. Ltd. v. Katanreddi Subbareddy, 1975 ACJ 95 (AP). (5) New Asiatic Insurance Co. (2) Prabhudayal Agarwal v. Saraswati Bai, 1975 ACJ 355 (Orissa). (3) Premier Insurance Co. Ltd. v. Gambhirsing Galabsing, AIR 1975 Guj 133 . (4) Madras Motor & Genl. Ins. Co. Ltd. v. Katanreddi Subbareddy, 1975 ACJ 95 (AP). (5) New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani, 1958-65 ACJ 559 (SC). 53. Unfortunately, even after all such admission by the insurance companies at the relevant time so as to consider that it was their intention to cover the liability of gratuitous passenger in a private car, the same issue has been repeatedly raised in several matters up to the Hon'ble Supreme Court and, therefore, there are different judgments on the issue. However, the factual details of some judgments discussed herein would certainly go to show that insurance companies are taking undue advantage of their situation. 54. It cannot be ignored that even in the case of Pushpabai, 1977 ACJ 343 (SC), the advocate of the insurance company has certainly pleaded and submitted before the Hon'ble Supreme Court that the scope of the statutory insurance does not cover the injuries suffered by the passengers. It is unfortunate that during those days, though stand of the insurance company should be as per the disclosure of intention even in the name of making such intention clear by the Tariff Advisory Committee in its circular dated 17.3.1978 and, thereby, though insurance companies were liable to pay compensation to the occupant of the vehicle, insurance companies were collecting the premium for such liability in addition to basic premium and unfortunately, that stand was approved by the Hon'ble Supreme Court but even thereafter, i.e., after the Hon'ble Supreme Court's judgment dated 25.3.1977, as late as on 17.3.1978, i.e., after a year, the Tariff Advisory Committee has issued a circular making it effective from 25.3.1977, i.e., from the date of judgment of Hon'ble Supreme Court probably to honour the judgment of the Hon'ble Supreme Court and not to make it a nullity. However, it would not change their stand to confirm by their circular and the wordings therein that they are issuing such circular to make their intention clear that they are holding the liability for the occupant of the private car and, therefore, it was stated in such circular that irrespective of any wordings in the policy, the following wordings shall be incorporated with further direction of existing policies be deemed to incorporate the above amendment automatically as the above decision is being brought into force w.e.f. 25.3.1977: "including occupants carried in the motor car provided that such occupants are not carried for hire or reward." 55. Let us start with what is emerging from the case of Bhagyalakshmi v. United India Insurance Co. Ltd., CA No. 3335 of 2009. Unfortunately, though its order dated 6.5.2009 is reported in several law journals including (2009) 7 SCC 148 , its final order dated 22.1.2014 was never published in any law journal till date, i.e., almost for 5 years. 56. The only reported order in the case of Bhagyalakshmi, CA No. 3335 of 2009 (SC), is dated 6.5.2009 published in (2009) 7 SCC 148 and several other law journals. The perusal of such judgment shows that the Hon'ble Supreme Court has considered several decisions on the subject under reference, i.e., liability of the insurance company for the occupant in private car, i.e., gratuitous passenger of private vehicle. After referring several previous decisions, the Hon'ble Apex Court is of the opinion that there are conflicting decisions and there are two issues, i.e., liability for gratuitous passenger in private vehicle under 'Act only policy' and under 'package/comprehensive policy'. Therefore, by its order dated 6.5.2009 the matter was referred to larger Bench. 57. Whereas, in the final order dated 22.1.2014, in such CA No. 3335 of 2009 in the case of Bhagyalakshmi (supra), three Judges of Hon'ble Supreme Court have passed the following order: "Various legal issues are involved in the matter and thus, the matter has been referred to a Bench of three Judges. However, while hearing of the case before the High Court in Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Delhi), the General Manager of the insurance company involved herein appeared in person and made a statement that they will make a statement before this court in this appeal to the following effect: 'United India Insurance Co. However, while hearing of the case before the High Court in Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Delhi), the General Manager of the insurance company involved herein appeared in person and made a statement that they will make a statement before this court in this appeal to the following effect: 'United India Insurance Co. Ltd. has raised this plea before the Hon'ble Apex Court in the case bearing Appeal No. 3335 of 2009. The company shall inform the advocate on record to place on record these instructions and to inform the court that it is the policy of the company to bear liability in respect of occupants in a private car and pillion rider on two-wheeler under package/comprehensive policy. I admit that B.S. Balyan, Manager, United India Insurance Co. Ltd., has made erroneous statement before this court on 9.9.2009 and 26.10.2009.' In view of the above and after hearing Mr. Rajesh Mahale, learned counsel for the appellants, and Mr. P.R. Sikka, learned counsel appearing on behalf of the respondent insurance company, we dispose of this appeal observing that in view of the statement made by the General Manager before the High Court, the appellants herein shall be entitled for all consequential benefits. Therefore, the respondent company is directed to re-calculate the entitlement of the appellant and make the payment within a period of eight weeks from today. In view of the above, the appeal is allowed and the impugned judgment of the High Court is set aside." 58. The bare reading of above judgment makes it clear that though issue has been resolved earlier in the year 2011 in the case of Yashpal Luthra v. United India Insurance Co. Ltd., 2011 ACJ 1415 (Delhi) and that too on admission by the insurance company, the insurance companies are repeatedly taking the same ground in different matters that they are not liable to indemnify the owner for gratuitous passenger in private car. 59. As already stated hereinabove, there cannot be any differentiation between the contract of insurance either as an Act policy or comprehensive policy wherein insurance companies are probably charging additional premium so as to cover the liability for the occupant of the vehicle when such liability has been admitted by insurance companies, as back as on 17.3.1978, which is discussed hereinabove. As already stated hereinabove, there cannot be any differentiation between the contract of insurance either as an Act policy or comprehensive policy wherein insurance companies are probably charging additional premium so as to cover the liability for the occupant of the vehicle when such liability has been admitted by insurance companies, as back as on 17.3.1978, which is discussed hereinabove. It is undisputed fact that though there are several amendments in MV Act, there is no change in basic principle of compulsory insurance of vehicle and liability of insurance company to pay compensation to 'any person,' who receives injuries out of the use of the motor vehicle. The perusal of order dated 20.1.2014 in Bhagyalakshmi, CA No. 3335 of 2009, read with judgment of Yashpal Luthra, 2011 ACJ 1415 (Delhi), makes it clear that one B.S. Balyan, Manager, United India Insurance Co. Ltd. (which is party before us also) has made erroneous statement before the court on 9.9.2009 and 26.10.2009. It is also clear that thereby, the General Manager of the same company had appeared in person before Delhi High Court in the case of Yashpal Luthra (supra) and made such statement that they will make the same statement before the Hon'ble Supreme Court in the case of Bhagyalakshmi (supra) admitting their liability. However, such statement was not made in the case of Bhagyalakshmi (supra) till the year 2014, i.e., for more than 3 years. 60. A bare reading of above two judgments makes it clear that at one point of time, one of the officers of the insurance company had made wrong statement before the court and when court has called upon few witnesses from insurance company and Insurance Regulatory and Development Authority (hereinafter referred to as 'IRDA' for short) in its powers under section 165 of the Indian Evidence Act so as to verify the factual position the witness has no option but to disclose the truth. This fact is on record of Delhi High Court and becomes part of the judgment of Delhi High Court in the case of Yashpal Luthra, 2011 ACJ 1415 (Delhi). The relevant part of the judgment starts from para 14 till para 28 which makes the above position clear as discussed hereinabove with reference to circular dated 17.3.1978 by Tariff Advisory Committee and liability of the insurance company towards occupant of the private car. 61. The relevant part of the judgment starts from para 14 till para 28 which makes the above position clear as discussed hereinabove with reference to circular dated 17.3.1978 by Tariff Advisory Committee and liability of the insurance company towards occupant of the private car. 61. However, unfortunately, even after such clarity there was wrong statement before Delhi High Court and similar wrong stand is being repeatedly taken before the different courts by referring the nature of policy differently as Act policy and package policy and, therefore, when in a given case, the policy was probably package policy, all the judgments are referring that in case of package policy, liability of gratuitous passenger in private car is covered. 62. However, the above discussion and actual position emerging from circular dated 17.3.1978 makes it clear that irrespective of proper disclosure, the liability of the insurance company towards owner of the private car includes liability for "death of or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward". Irrespective of non-disclosure of such clause in policy because the circular makes it clear that such amendment is deemed to be incorporated automatically at least w.e.f. 25.3.1977 since the intention of the insurance companies is to hold such liability for all the years. 63. Therefore, irrespective of different disclosures by different officers of different companies either before Delhi High Court in the case of Yashpal Luthra, 2011 ACJ 1415 (Delhi), or in any other manner whatsoever, the fact remains that insurance company cannot be exonerated from such liability. 64. It is unfortunate that insurance companies are wasting the valuable court hours in deciding such issue repeatedly by different courts, which results into different decisions at different point of time. 65. 64. It is unfortunate that insurance companies are wasting the valuable court hours in deciding such issue repeatedly by different courts, which results into different decisions at different point of time. 65. Therefore, in the present case, though initially matter was kept for passing the order under section 165 of the Indian Evidence Act as done by Delhi High Court in the case of Yashpal Luthra, 2011 ACJ 1415 (Delhi) and though some such short order is already passed in Misc Civil Application No. 1 of 2018 in First Appeal No. 5355 of 2008 and thereby though it is the duty of the nationalised insurance company, so also IRDA to clarify the situation before the court, the fact remains that because of selective disclosure by the officers of such institutions, there are different orders and, therefore, I am of the clear view that instead of keeping all such issues pending or even to calling any of such officers under section 165 of the Indian Evidence Act so as to disclose correct position on record, it would be appropriate to fasten the liability on the insurance company for occupant in the private vehicle irrespective of nature of policy when third party insurance is compulsory and when it can never be said that occupant of car is not a third party to the contract of insurance. 66. Though learned advocates for the insurance companies are relying upon the decision in the case of Oriental Insurance Co. Ltd. v. Surendra Nath Loomba, 2013 ACJ 321 (SC) and National Insurance Co. Ltd. v. Balakrishnan, 2013 ACJ 199 (SC), the fact remains that practically in all such cases the Hon'ble Supreme Court has remanded the matter to the High Court and probably decision in the case of Yashpal Luthra, 2011 ACJ 1415 (SC), was not brought to the notice of the Hon'ble Supreme Court in any of such cases. 67. Therefore, considering the above discussion, I hold that the insurance company is certainly liable to compensate the occupant of the private vehicle irrespective of nature of policy because there is nothing like different type of policy in the statute and the liability of the insurance company is certainly statutory and, therefore, they cannot escape from such liability. 68. Therefore, now, the first appeal needs to be allowed on both the issues. 68. Therefore, now, the first appeal needs to be allowed on both the issues. However, before parting with the matter, it must be recorded that even in the present case, a strange position is emerging on record when on one hand, because of joint and several liability, claimant is entitled to recover full set of compensation from either of the tortfeasors and, thereby when because of the order dated 26.11.2014 below review application, Tribunal has exonerated the liability of one of the insurance companies, namely; United India Insurance Co. Ltd., the other insurance company, i.e., Oriental Insurance Co. Ltd. is supporting the above discussion, determination and the conclusion regarding liability of insurance company for the occupant in private vehicle, whereas, on the other hand, United India Insurance Co. Ltd., which has got itself exonerated by same order dated 26.11.2014 below review application, does not want to come forward with proper disclosure on oath, which would bind them in the several litigation for the owner of the private vehicle; so also by the competent authorities like Tariff Advisory Committee or IRDA and even by the court of law. But surprisingly, though Oriental Insurance Co. Ltd. supports above discussion and determination, probably, they are also taking some disadvantage in different cases and, therefore, they also did not come forward with documentary and/or oral evidence to confirm that the insurance companies are liable to pay compensation to the victims who were occupants of the private car. 69. Similar but unfortunate situation is with reference to the order dated 26.11.2014 by the Tribunal below review application when Tribunal has though allowed the review application so as to exonerate the liability of one of the insurance companies did not agree to confirm that liability of all the opponents is joint and several under the pretext that it would be material alteration of the judgment. The Tribunal has failed to realize that even exonerating the liability of the insurance company once fixed by Tribunal award is also material alteration in the judgment. Such practice by the Tribunal needs to be deprecated. 70. In view of above facts and circumstances, the appeal is allowed whereby order dated 26.11.2014 by the Tribunal below Motor Accidents Claims (Review) Application No. 5 of 2014 is hereby quashed and set aside making all the opponents liable to pay compensation. Such practice by the Tribunal needs to be deprecated. 70. In view of above facts and circumstances, the appeal is allowed whereby order dated 26.11.2014 by the Tribunal below Motor Accidents Claims (Review) Application No. 5 of 2014 is hereby quashed and set aside making all the opponents liable to pay compensation. The award is also modified to the effect that irrespective of fixing of inter se negligence and liability by the Tribunal in discussion part of the award, in operative part of the award, it is made clear that all the opponents are jointly and severally liable to pay full amount of compensation to the claimant. At the most, if any of the tortfeasors has to pay the amount of compensation for the liability of another tortfeasor, they may recover it in accordance with law. 71. Therefore, appeal is allowed whereby the impugned award is modified to above extent. Record and proceedings, if any, be sent back to the concerned court at the earliest.