Gujarat High Court
New vs Shantaben on 26 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
FA/3145/2000 2/ 31 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3145 of 2000
To
FIRST
APPEAL No. 3160 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NEW
INDIA ASSURANCE CO LTD. - Appellant(s)
Versus
SHANTABEN
BAVA & 4 - Defendant(s)
=========================================================
Appearance
:
MR
VIBHUTI NANAVATI for
Appellant(s) : 1,
None for Defendant(s) : 1,
MR KL DAVE for
Defendant(s) : 1.2.1, 1.2.2, 1.2.3,1.2.4
MR VIMAL M PATEL for
Defendant(s) : 1.2.1, 1.2.2, 1.2.3,1.2.4
(MR JAYANT PATEL) for
Defendant(s) : 1.2.5
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/02/2010
ORAL
JUDGMENT
Heard learned Advocate Mr. Vibhuti Nanavati for appellant insurance company and learned Advocate Mr. KL Dave for respondents original claimants in this group of appeals.
By filing these appeals, appellant insurance company has challenged common award made by MACT at Junagadh in MACP No. 189 of 1995 and other consolidated matters dated 25.4.2000 Exh. 167. Accident occurred on 22.2.95. The vehicle involved is Matador bearing No. GJ.14.T.3173 which was driven by opponent no.1 and was insured with opponent NO.2. Policy was produced at Exh. 162 and 166. RC Book was produced at Exh. 165 and all matters were consolidated together and decided accordingly by claims tribunal. Claims Tribunal considered following points for deciding said group of claim petitions :
(1) Whether it is proved that the that the incident occurred on account of rash and negligent driving of motor vehicle I.e. career Tempo No. GJ.14.3173 by opponent NO.1?
(2) Whether the opponent no.2 is also liable for the aforesaid incident?
(3) Whether the deceased died due to the injuries sustained in the aforesaid vehicular accident?
(4) To what amount of compensation the petitioners are entitled?
(5) What award?
Claims Tribunal answered point no.1 to 3 in affirmative and made award of compensation accordingly in favour of claimants which is under challenge in this group of appeals.
Before claims tribunal, ten witnesses were examined which has corroborated facts narrated in FIR and Panchanama and said vehicle is insured with opponent no.2 which is a goods vehicle, for which, it was argued by insurance company that as there is a goods vehicle, insurance company is not liable for payment of compensation to claimants. Claims Tribunal held that insurance company is liable to pay compensation to claimants as per reported decision in AIR 2000 SC 235, case of Satpal Singh.
Learned Advocate Mr. Vibhuti Nanavati appearing for appellant insurance company has not challenged amount of compensation as worked out by claims tribunal in aforesaid group of claim petitions. Only legal contention is raised that when accident occurred on 22nd February, 1995, persons those who were travelling in goods vehicle being marriage party and, therefore, their risk is not covered under policy issued by appellant insurance company and, therefore, all are gratuitous passengers therefore, claims tribunal ought not to have held that insurance company is liable to pay compensation to claimants. He submitted that claims tribunal has committed gross error in deciding claim petitions holding liability of insurance company with owner of vehicle. He relied upon claim petition and written statement filed by insurance company. From claim petition, he pointed out that claimant has made clear statement in affidavit that on 22nd February, 1995, all persons were going to take daughter of Dahyabhai after marriage from Barvala to Malvan which has been considered as Dhag after marriage. Matador No. GJ.14.T.3173 is belonging to respondent no.1 who is owner and driver of said matador. These all persons were travelling with goods belonging to daughter of Dahyabhai which has been called as goods relating to kariavar i.e. dowry after paying fare of Rs.50.00 to owner and driver of said Matador. During that time, at about 6.00 a.m., on Kukavav-Amreli Road, near Kotda village, while passing through turn, driver of Matador namely opponent NO.1 drove vehicle carelessly and in full speed as a result of which, matador had turned turtle wherein serious injuries were received by claimants in hands and legs and thereafter, relying on aforesaid facts as admitted by claimants in their affidavit, learned advocate Mr. Nanavati submitted that it was an admission of the claimants that they were travelling in a goods vehicle as a gratuitous passengers or a members of a marriage party and, therefore, insurance company is not liable to pay amount of compensation to claimants. He relied upon para 5 of written statement filed by insurance company before claims tribunal. Therefore, para 5 of written statement filed by insurance company is quoted as under:
5. This opponent submits that the applicant was travelling as illegal passenger on the vehicle alleged to be insured with us. This vehicle is a goods vehicle and travelling of such passenger was not permitted under the terms of policy as also under the provisions of MV Act and Rules and
(a) that on the date of contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward; (b) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward and ?
that the vehicle was,in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward (d) that the vehicle was used by the insured or at his instance in breach of specific condition including a condition that in the goods vehicle passengers for hire or reward were not to be carried.
In view of the above, this opponent is not legally liable to pay any amount of compensation. This opponent most respectfully at the costs of repetation beg to state that vehicle involved in the accident is a goods vehicle meant for carrying goods only having sitting capacity of one person only I.e. driver only. The opponent NO.1 who is driver cum owner of said vehicle was using the said vehicle at the time of accident in violation of RTO Permit and terms of policy. It is clear from police papers that at the time of accident about 50 persons were travelling as passenger illegally in this vehicle. It is not true that those passengers were owner of goods. It is respectfully submitted that the story of travelling of applicant and other injured persons and deceased persons with goods has been developed with a view to make insurance company liable. There was at all no goods belonging to applicant. The applicant was illegal passenger only. In view of this there is no liability on the part of this opponent to pay any amount of compensation finally or under the provisions of no fault liability. This opponent submits that MACP No. 189 to 199 of 1995 and 227 to 279/95 and 376 to 379/95 have arisen from this accident and looking to the facts and circumstances of the matter. It is prayed that all these matters may please be consolidated.
Relying upon aforesaid para 5 of written statement, he submitted that inspite of raising all legal contentions available to insurance company in para 5 as referred to above, none of the contention has been considered by claims tribunal and, therefore, claims tribunal has committed gross error. He relied upon decision of apex court in case of New India Assurance Co. Ltd. Versus Asha Rani and others, reported in (2003) 2 SCC 223 = AIR 2003 SC 307 = JT 2002 (10) SC 162. He also relied upon decision of apex court in case of M/s.
National Insurance Co. Ltd. v. Baljit Kaur and others, reported in AIR 2004 SC 1340, para 21. He also relied upon decision of apex court in case of National Insurance Co. Ltd. Versus Cholleti Bharatamma and others, reported in (2008) SCC 423, para 19 and submitted that in case of owner of goods, if he was travelling in goods vehicle, then, he must travel only in the cabin of vehicle and not with the goods so as to be covered under section 147, otherwise, such owner of goods is not permitted to travel in a goods vehicle. He also submitted that when insurance company itself is not liable because of breach committed by owner of vehicle, no order can be passed by claims tribunal to pay amount of compensation to claimants and then to recover same from owner of vehicle. He relied upon para 11 of decision of apex court in case of National Insurance Co. Ltd. Versus Prema Devi and others reported in 2008 (5) SCC 403, which is quoted as under:
11. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.
This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others (2003(2) SCC 339). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003(9) SCC 668), in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 (2) SCC 1) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Others (2005 (12) SCC 243), the view in Asha Rani's case (supra) was reiterated."
He also relied upon decision of apex court in case of National Insurance Company Ltd. Versus Rattani and others, (2009) 2 SCC 75 and submitted that in said decision, apex court has considered case of members of marriage party travelling in truck allegedly transporting gifts received from bride party and it was held that it cannot fall into the above category. He submitted that it was considered by apex court that when marriage party was travelling in a goods vehicle, then, whatever goods found with such unauthorized persons cannot be considered to be owner of goods and whatever goods are lying with such unauthorized person is not covered by definition of goods given under the provisions of Motor Vehicles Act. He further submitted that persons those who were travelling in goods vehicle Matador on the date of accident, they cannot even be considered to be care taker of the goods. He also relied upon para 3 page 7 of award and submitted that no contention has been considered which has been raised by appellant insurance company before claims tribunal at Junagadh while passing award in question. He also submitted that looking to language used by claims tribunal in para 3 of award, it gives an impression that decision of apex court in case of Satpal Singh, AIR 2000 SC 235, has been relied upon by insurance company but in fact, said decision was not relied upon by appellant because it is against insurance company and, therefore, apparently mistake has been committed by claims tribunal. He also submitted that in appeal memo, all contentions are raised by appellant insurance company and such contentions have not been examined and not considered by claims tribunal and, therefore, according to him, claims tribunal has committed gross error in deciding group of claim petitions. Grounds raised by appellant in memo of appeal are therefore, referred to as under, for his satisfaction:
(A) That the award passed by the learned Tribunal is against law.
(B) That the vehicle involved in the accident is matador bearing registration No. GJ.14.T.3173 was driven at the relevant time by original opponent no.1 Ram @ Jeram Fulabhai Vachhani, who also happens to be the owner of the said vehicle and insured with the appellant herein. The policy has been produced on the record of the case at Exh. 162.
(C) It transpires that the vehicle involved is a delivery van described in the petition as carrier tempo No.GJ.14.T.3173 i.e. a goods vehicle.
(D) It further transpires that at the time when the accident occurred, about 20 persons were travelling in the said vehicle out of which three persons died and 15 persons sustained injuries.
(E) The heirs of the deceased have filed following MAC Petitions for the purpose of compensation.
MACP No.189/95;
MACP NO.190/95 and MACP No. 191/95 Rest of the petitions i.e. MACP No. 192 to 199/95 277 to 279/95 and 376 to 379/95 were filed by the injured claimants for various amounts. The RC Book which has been produced on the record shows that the vehicle is a goods vehicle. The claimants have also described the vehicle as a goods vehicle.
(F) Section 2(14) of the Motor Vehicles Act defines 'Goods Carriage' which reads as under:
'Goods Carriage' means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
(G) Section 2(16) defines Heavy Goods Vehicle ; section 2(21) defines Light Motor Vehicle and section 2(23) defines Medium Goods Vehicle . On a conjoint reading of the aforesaid definitions, it will be clear that the present vehicle which is involved in the accident was a goods vehicle whose gross weight was 6000 kgs.
(H) The appellant submits that in the written statement, it is specifically pleaded that the 'vehicle involved in the accident was a goods vehicle meant for carrying goods only and having seating capacity of one person only.
Opponent NO.1 who is driver cum owner of the said vehicle was using the vehicle at the time of the accident in violation of RTO Permit and terms of the policy. From the FIR and other policy papers, it transpires that 50 persons were travelling as passengers unauthorizedly In any case, as per the rules framed under Gujarat Motor Vehicles Rules, the vehicle was a light vehicle and as per the definition of section 2(21) not more than two persons including the driver can travel in the same.
(I) The appellant submits that in a heavy motor vehicle whose gross unladen weight exceeds 12000 kgs., the rules provide for carriage of persons to the extent of 7. In view of the aforesaid position that 18 claim petitions have been filed, it is clear that more than the prescribed number of persons were travelling in the goods vehicle.
(J) The learned Tribunal erred in raising the question whether opponent No.2 is liable to compensate. The learned Tribunal further erred in answering in the affirmative.
(K) The learned Tribunal has relied on the decision reported in AIR 2000 SC p. 235 for holding the appellant insurance company liable. The appellant submits that the said decision deals with gratuitous passengers. In the present case, the claimants have admitted that the persons were travelling with their goods as paid passengers. In view of the admitted position, the Tribunal relying on the said decision holding the appellant insurance company liable is against law.
(L) The learned Tribunal in para 3 very cryptically decides the issue. It is further interesting to note that the learned Tribunal has taken it very lightly the contention of the insurance company and the decision rendered for the purpose of computation but records no reasoning or finding but merely takes the amount of compensation and decisions. It appears that the Tribunal has not dealt with the case according to law.
(M) The appellant therefore prays that the award passed in the present MAC Petition No. 189/95 in the sum of Rs.1,68,000/- is misconceived, untenable and against law and requires to be set aside.
(N) Such other arguments as may be urged at the time of final hearing.
He also relied on decision of apex court in case of Chimajirao Kanhojirao Shirke and another versus Oriental Fire and General Insurance Co. Ltd., reported in 2000(6) SCC page 622. He submitted that apex court has considered that certain contentions were raised in written statement but argument has been made by lawyer for party differently and different point was raised even in such circumstances, claims tribunal must have to consider contentions raised in written statement. Relying on head note, he submitted that insurance company has deposited entire amount as per directions issued by this court on 2nd August, 2000 in Stay Application NO. 10865 to 10880 of 2000. Division Bench has passed interim order disbursing 20 per cent in favour of claimants and permitted to be withdrawn 20 per cent with condition of supplying security to the satisfaction of the Court. 80 per cent amount is invested by claims tribunal as per directions issued by Division Bench of this Court on 2nd August, 2000 and, therefore, he submitted that in respect of 20 per cent which has been disbursed in favour of claimants, directions may be given to claims tribunal that said 20 per cent can be recovered from owner by appellant and remaining 80 per cent amount with whatever interest accrued may be ordered to be refunded back to appellant insurance company. In short, his submission is that appellant insurance company is not liable to pay compensation to claimant and decision of claims tribunal is contrary to law laid down by apex court as referred to above. Except that, no further submission is made by learned Advocate Mr. Vibhuti Nanavati before this Court and no other decision except the decisions referred to above was cited by him before this court in support of contentions recorded herein above.
On the other hand, learned Advocate Mr.KL Dave appearing for respondents claimants submitted that except three matters where persons died, in rest of matters, small amounts are involved, may be less than Rs.30000.00 to Rs.20000.00 which has been awarded by claims tribunal. He further submitted that it was not a marriage party but it was a 'dhag' which had gone to take daughter of Dahyabhai along with goods and, therefore, decision of apex court in case of Rattani (supra) is not applicable to facts of present case. He placed on record copy of FIR against that, learned Advocate Mr. Vibhuti Nanavati for appellant submitted that in case of Prema Devi and Rattani, no order was passed to pay amount of compensation to claimants and then to recover such amount from owner of vehicle and, therefore, no such order can be passed in present case by this Court.
I have considered submissions made by both learned Advocates. I have also perused common award passed by claims tribunal. Just to highlight how much amount has been awarded by claims tribunal in respect to each claim petition and conduct of appellant insurance company to challenge meager amounts awarded by claims tribunal in this case, operating portion of impugned award passed by claims tribunal is reproduced as under:
The claimants in each of the petitions of this group matters shall recover an amount of compensation from both the opponents, jointly and severally, with running interest at the rate of 12 % per annum from the date of application till realization, with proportionate costs, as enumerated herein below :
1. MACP No.189/'95 : Rs.1,68,000/-
2. MACP No.190/'95 : Rs.0,72,000/-
3. MACP No. 191/95 : Rs.1,20,000/-
4. MACP No. 192/95 : Rs.0,22,400/-
5. MACP No.193/95 : Rs.2,000/-
6. MACP No. 194/95 : Rs.16900/-
7 MACP No.195/95 : Rs.20800/-
8. MACP No.196/95 : Rs.1000/-
9. MACP No. 197/95 : Rs.21100/-
10. MACP No. 198/95 : Rs.22,800/-
11. MACP No. 199/95 : Rs.23700/-
12. MACP NO.
277/95 : Rs.58300/-
13. MACP NO.278/95 : Rs.43,030/-
14. MACP No. 279/95 : Rs.38000/-
15. MACP No. 376/95 : Rs.31,18,700/-
16. MACP No. 377/95 : Rs.78500/-
17. MACP No. 378/95 : Rs.66500/-
18. MACP No.379/95 : Rs.77,400/-
Common award has been passed by claims tribunal on 25.4.2000 and accident occurred on 22nd February, 1995. Amendment made in Motor Vehicles Act came into effect from 14th November, 1994, therefore, in respect of accident dated 22nd February, 1995, provisions of amended Act means section 147 would apply to facts of present case. Therefore, section 147 of amended Act is quoted as under:
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 authorized 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 occurred by him in respect of the death 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;
Provided that a policy shall not be required -
(I) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death 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 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.
In light of this back ground, claims tribunal has decided claim petitions as discussed in para 3 of award which is quoted as under:
3. In this mater, looking to the oral evidence which is led by the claimants, ten witnesses were examined which is duly corroborated with the facts narrated in the FIR and the Panchanama, and the said vehicle is insured with opponent No.2 which is a goods vehicle, for which the Insurance Co. argued that as there is a goods vehicle, the insurance company is not liable for which, AIR 2000 SC 235 is cited, the insurance company is liable to pay the compensation. The opponents are held jointly and severally liable.
Except submission as referred in para 3, learned Advocate Mr. Hirpara appearing for insurance company before claims tribunal has not made any other submission before claims tribunal. Only submission was made that there is a goods vehicle involved in accident and insurance company is not liable. Except that, no other submission is made by learned Advocate Mr. Hirpara on behalf of insurance company before claims tribunal. Therefore, it is clear that the contentions raised by appellant in its written statement and contentions raised by appellant in its appeal memo before this court were not raised by appellant insurance company before claims tribunal while arguing matter. Claims tribunal has not committed any error in not deciding contentions which are not raised by appellant insurance company before claims tribunal while arguing the matter though it might have been raised by it in its written statement. During the course of arguments before claims tribunal, only one contention was raised or pressed into service by appellant insurance company against which Claims Tribunal has relied upon decision of apex court in case of Satpal Singh, AIR 2000 SC 235. Apex court has considered provisions of Old Act and amendment made in Motor Vehicle Act in 1994 and made following observations in para 5 to 11 which are quoted as under, as relied upon by claims tribunal:
5. Learned counsel for the appellant ' banked on the decision of a three Judge Bench this Court in Mallawwa and ors. Vs. Oriental Insurance Co. Ltd and ors. [1999 (1) SCC 403} to disclaim liability on the premise that the victim of the accident was gratuitous passenger in the vehicle covered by the insurance policy. But the said decision was rendered under Section 95 of the Motor Vehicles Act, 1939 (which can be referred to as 'the old Act' ).The aforesaid provision contained a rider in clause (ii) of the proviso to sub-section (1) which is absent in the corresponding provision in the New Act. To pinpoint the said distinction we extract Section 95(1) of the old Act as under:
"95.
Requirements of policies and limitsof liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance may be a policy which-
(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under section 108 to transact the business of an 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 or damage to any property of a third party caused by 3 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-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employees 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) 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 vehicle, being carried in the vehicle; or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability."
6. As per ".the proviso when read .with its clause (ii) It is clear that the policy of insurance shall not be required to cover liability in respect of the death of or bodily injury to persons who wore gratuitous passengers of that vehicle. This Court, has' held in Pushpabai Parshottam Udeshi and others vs.M/s. Ranjit Ginning & Pressing Co.pvt. Ltd. and anr. [AIR 1977 sc 1735 ? 1977 (2) SCC 745) as under:
"Sections 95(a) and 95(b)(l) of the Motor Vehicles Act adopted the provisions of the .English Road Traffic Act, 1960, and excluded the liability or the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury bo any person 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 plea that the words 'third party",are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers made clear by the proviso to sub-section which provides that a policy shall not be required. ............ Therefore it is not required that a policy of insurance should cover risk to the passengers who are nob carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried out hire of reward is not required to be insured the plea of the counsel for the insurance-. company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act."
7. In fact the said ratio has been approved by the three Judge Banch in Mallava vs. Oriental Insurance Co. Ltd. supra). At .the same time learned Judges pointed out that the old Act is now repealed by the new Act and Section 147 of the new Act corresponding to Section 95 of the old Act has been substantially altered and hence the above interpretation of Section 95 of the old Act will govern the cases which have arisen under the old Act.
8. Proviso to Section 147 (1) of the. New Act 'shows that it is a recast by provision by placing the erstwhile clause(iii) as the present clause (ii) In- other words, clause(ii) of the proviso in Section 95(1) of the old Act is totally non-existent in the proviso to Section 147 (1) of the new Act.
9. Under Section 147 of the new Act, the policy must be a policy which 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.
10. The proviso to the said sub-section is not relevant here a it pertains to death or bodily injury to the employee mentioned therein. Sub-section (2) provides that a policy of insurance shall cover any liability incurred in respect of any accident, up to the following limits, namely:-
(i). save as provided in clause (b) the amount of liability incurred;
(ii) 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.
Hence, under sub-section (2),there is no upper limitation for the insurer regarding the amount of compensation awarded in respect,of death or bodily injury of a victim of the accident, It is therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle. The Legislature has also taken care even the policies which were in force on the date of commencement of the Act by specifically providing that any policy of insurance containing any limit regarding insurer's liability shall continue to be effective for a period of four months from commencement of the Act or till the date of expiry of such policy, whichever is earlier. This means, after the said period of four months a new insurance policy consistent with the new Act is required to be obtained.
11. 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 chat the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a-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.
The date on which matter was considered and award was passed by claims tribunal, at that time, this was the only decision on question decided by apex court in case of Satpal Singh (supra) dated 2nd December, 1999 and there was no other decision contrary to Satpal Singh case which has been considered by claims tribunal, therefore, claims tribunal has considered the decision which was recent at that relevant time holding field in respect of question considering case of Satpal Singh where apex court has observed as under:
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-a-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.
In view of these observations made by apex court while considering effect of Old Act and new Amendment made in MV Act where it has been held that under new Act, insurance policy covering third party risk is not required to exclude gratuitous passenger in vehicle, no matter that the vehicle is of any type or class. Therefore, gratuitous passengers travelling in goods vehicle are also covered as per amended Act having effect from 14th November, 1994 and, therefore, risk of such passengers is covered under insurance policy and risk of such passengers must have to be satisfied by insurance company as per amended Act as considered by apex court in case of Satpalsingh which was holding field at the relevant time when matter was decided by claims tribunal.
Decision of apex court in case of New India Assurance Co. Ltd. Versus Satpal Singh, AIR 2000 235 has been over-ruled by Three Judges Bench of apex court in case of New India Assurance Co. Ltd.
Versus Asha Rani and others, reported in (2003) 2 SCC 223. What would be effect, that has been considered by apex court in case of M/s. National Insurance Co. Ltd. v. Baljit Kaur and others, reported in AIR 2004 SC 1340. Relevant observations made by apex court in Head Note A and B are quoted as under:
(A) Motor Vehicles Act (59 of 1988), S.147 (as amended by Motor Vehicles (Amendment) Act 1994) - MOTOR VEHICLES - Liability of insurer -
Death of gratuitous passenger carried in goods vehicle - Addition of words 'including the owner of the goods or his authorised representative carried in the vehicle' in S. 147 by way of 1994 Amendment - Effect - Scope thereof is not extended to cover gratuitous passengers for whom no insurance policy was envisaged - Said legal position will have prospective effect - Relief moulded.
The effect of the 1994 Amendment on S. 147 is unambiguous. Where earlier, the words 'any person' could be held not to include the owner of the goods or his authorised representative travelling in the goods vehicle, Parliament has now made it clear that such a construction is no longer possible. The scope of this rationale does not, however, extend to cover the class of cases where gratuitous passengers for whom no insurance policy was envisaged, and for whom no insurance premium was paid, employ the goods vehicle as a medium of conveyance. By reason of the 1994 Amendment what was added is 'including the owner of the goods or his authorised representative carried in the vehicle.' The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in S. 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of Cl. (b) of sub-section (1) of S. 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
Judgment given prospective effect. To prevent prejudice to claimant Insurer directed to pay awarded amount to claimant and recover it from owner. For purpose of recovery he may initiate proceedings before executing court as if dispute between insurer and owner was subject-matter before Tribunal. (Paras 11, 12, 13, 17, 20) (B) Interpretation of Statutes - Doctrine of suppression of mischief rule - Applicability - Goods carriage carrying any passenger not contemplated under Motor Vehicles Act (1988) - 1994 Amendment to S.147 of the Act 1988 adding words "including owner of goods or his authorised representative carried in the vehicle" - Such amendment was made by Parliament consciously to include owner of goods or his authorised representative carried in goods vehicles in liability of owner of vehicle to insure it compulsorily.Motor Vehicles Act (59 of 1988), S.147 (as amended in 1994). (Para 14) Cases Referred : Chronological Paras Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, AIR 2003 SC 1009 : 2003 AIR SCW 513: (2003) 2 SCC 339 5, 7, 8 National Insurance Co.
Ltd. v. Ajit Kumar, AIR 2003 SC 3093 : 2003 AIR SCW 4120 : (2003) 7 JT (SC) 520 6 New India Assurance Co.
Ltd. v. Asha Rani, AIR 2003 SC 607 : 2002 AIR SCW 5259 : (2003) 2 SCC 223 5, 7, 8, 12, 18, 19, 21 New India Assurance Co.
v. Satpal Singh, AIR 2000 SC 235 : 1999 AIR SCW 4337 : (2000) 1 SCC 237 4, 5, 7, 21 Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi, AIR 1996 SC 1963 : 1996 AIR SCW 2337 16 Goodyear India Ltd. v.
State of Haryana, AIR 1990 SC 781 16 Bengal Immunity Co. Ltd.
v. State of Bihar, AIR 1955 SC 661 16 Heyden's case, (1584) 3 Co Rep 7a : 76 ER 637 Kishore Rawat, M. K. Dua, Joy Basu, B. K. Satija, S. L. Gupta, Baldev Sharma, Sunder Prakash Jain, Sant Lal Nagar, Subrata Das, Goodwill Indeevar, Ms. Suresh Kumari, Dinesh Verma, A. P. Mohanty, Ms. Kavita Wadia, Ankur Talwar, Arun Aggarwal, Anurag Kumar Agarwal, Varinder Kumar Sharma, Advocates, for the Appearing Parties.
Relevant discussion made by apex court in para 20 and 21 of said decision is reproduced as under:
20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in S. 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised 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. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. 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. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of S. 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.
Contention is raised by learned Advocate Mr. Vibhuti Nanavati on behalf of appellant insurance company that law laid down by apex court Three Judge's Bench in case of Baljit Kaur (supra) is made applicable only to facts of that case alone and it is not applicable to other cases. Such contention cannot be accepted considering ratio laid down by apex court in case of Baljit Kaur (supra). In para 21 of decision, relevant observations to that effect have been made which are quoted as under:
The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. [Emphasis supplied].
Therefore, decision of apex court over ruling earlier decision in case of Satpal Singh (supra), is having prospective effect and it is not mere observations made by apex court on facts of case of Baljit Kaur. Apex court has, in terms, made it clear while clarifying legal position between Satpal Singh and Asha Rani and in terms clarified legal position which shall have prospective effect, therefore, decision which has been relied upon by claims tribunal on the date on which award was passed, on that day, there was no any other decision contrary to hold field at the relevant time, therefore, while over ruling decision of case of Satpal Singh in case of Asha Rani, that legal position has been clarified by apex court that it will be having prospective effect and, therefore, award which has been passed by claims tribunal is not required to be disturbed and, therefore, contention raised by learned Advocate Mr. Nanavati cannot be accepted. In fact, ratio which has been laid down by apex court in case of Baljit Kaur (supra) which is binding to this court under Article 141 of the Constitution of India as a Binding Precedent and, therefore, decision in any subsequent case which has been relied upon by learned Advocate Mr.Nanavati as referred to above in his submission cannot be made applicable to facts of present case because from decision of apex court in case of Baljit Kaur, it is clear that over ruling of decision of Satpal Singh in case of Asha Rani is having prospective effect and, therefore, in view of that, whatever award passed by claims tribunal relying upon decision of Satpal Singh cannot be disturbed by this Court. Therefore, according to my opinion, decision of apex court which has been relied case of National Insurance Company Ltd. Versus Rattani and others, (2009) 2 SCC 75 as well as apex court decision in case of National Insurance Co. Ltd. Versus Cholleti Bharatamma and others, reported in (2008) SCC 423, Chimajirao Kanhojirao Shirke versus Oriental Fire and General Insurance Co.
Ltd., (2000)6 SCC 622 as well as decision of apex court in case of New India Assurance Co. Ltd. Versus Asha Rani and others, reported in (2003) 2 SCC 223 are not applicable to facts of this case in view of ratio laid down by apex court in case of M/s.
National Insurance Co. Ltd. v. Baljit Kaur and others, reported in AIR 2004 SC 1340.
Learned Advocate Mr.Vibhuti Nanavati relied upon contentions raised in para 5 of written statement filed by insurance company before claims tribunal and also relied upon grounds raised by appellant in its appeal memo before this court while arguing matter before this court and his grievance is that these contentions have not been examined by claims tribunal though specifically raised in its written statement by appellant. Such contention raised by learned Advocate Mr. Nanavati cannot be accepted simply on the ground that such contentions are not reflected in award made by claims tribunal, meaning thereby, that contentions, if it has not been finding place in award, then, it amounts to presumption that no such contention has been raised by appellant before claims tribunal. This Court must have to accept record of claims tribunal being conclusive proof and any other submission or contention to the contrary cannot be accepted as decided by apex court in State of Maharashtra versus Ramdas Shrinivas Nayak and another reported in AIR 1982 SC 1249, the apex court has taken view that the Judge's record is conclusive, neither lawyer nor litigant may claim to contradict it except before the Judge himself but nowhere else. Relevant observations made by the apex court in para 4,5,6 and 7 of the said judgment are reproduced as under:
4.
When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still, fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to 'the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of makingthe concession as recorded in the judgment.
4-A. In R. v. Mellor (1858) 7 Cox CC 454 Martin B was reported to have said : "We must consider the statement of the learned judge as absolute verity and we ought to take. his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity."
5. In King. Emperor v. Barendra Kumar Ghose, (1924) 28 Cal WN 170 : (AIR 1924 Cal 257) (FB), Page, J. said.
".............these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version."
6. In Sarat Chandra v. Bibhabati Debi (1921) 34 Cal LJ 302 : (AIR 1921 Cal 584), Sir Asutosh Mookherjee explained what had to be done :
"It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge, without delay and ask for rectification or review of the judgment".
7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge, himself, but nowhere else.
Similarly, in the matter of Daman Singh and others v. State of Punjab and others, etc. reported in AIR 1985 SC 973, Five Judges' Bench of the Hon'ble apex court observed as under in para 13 of the said judgment:
13. The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but later, confine themselves in the course of arguments to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not. ?
Similarly view has been taken by apex court in Shankar K.Mandal and others versus State of Bihar & Ors.,(2003) 9 SCC 519. Para 10,11 and 12 of said decision are quoted as under:
10. It is not open for the appellants to take such stand before this Court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the course to be adopted is well known.
11. If really there was no concession, or a different stand was taken, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak and another (1982 (2) SCC 463). In a recent decision Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and others (2002 AIR SCW 4939) the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. AIR 1982 SC 1249 : 1982 Cri LJ 1581 AIR 2003 SC 511
12. It is also not open to contend that a plea raised was not considered. In Daman Singh and others, etc. v. State of Punjab and others, etc. (AIR 1985 SC 973) it was observed (in para 13) as follows :
"The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memorandum of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the Court making the order to it by filing a proper application for review or clarification.
The time of the superior Courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate Court was argued before that Court or not?"
Apex court has delivered judgment on 21st November, 2008 in case of Md. Rafique @ Chachu vs State of West Bengal reported in 2008 (15) SCALE page 15 wherein it was observed by apex court that if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. Relevant discussion made in para 5 of said decision is reproduced as under:
5. It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so,it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence and it is not to be encouraged. If really three was no concession,the only course open to the appellant was to move the High Court in line with what has said in State of Maharashtra v.Ramdas Shrinivas Nayak (1982 (2) SCC
463). In a decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003(2) SCC 111) the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. if a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the mater is still fresh in the minds of the Judges to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the mater must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.The above position was highlighted in Roop Kumar v. Mohan Thedani (2003 6 SCC 595.
Contention raised by learned Advocate Mr. Vibhuti Nanavati has been examined by this court, but, apart from that, facts of this case are also to be kept in mind which is not much in dispute between the parties. Date of accident, persons those who were travelling in Matador, they were travelling along with their goods, means they were travelling as owner of goods. These facts have been disclosed by claimants in their claim petitions. These facts have also been disclosed by claimants in their evidence. Appellant insurance company has not disputed these facts by leading proper evidence before claims tribunal. Therefore, accident which has occurred after amendment made in Motor Vehicles Act on 14th November, 1994. Section 147, in definition of 'any person' clarified which include owner of goods or representative of owner of goods for which also insurance company is statutorily liable irrespective of fact whether risk of such persons is covered in insurance policy or not. Liability of insurance company, person those who were travelling in goods vehicle as owner of goods being statutory liability, insurance company must have to satisfy such liability in case if any accident has occurred. Therefore, persons those who were travelling as owner of goods in a goods vehicle are considered to be third party and their liability is upon insurance company which cannot be denied by insurance company because it is statutory liability incurred by insurance company while accepting amount of premium after amendment made in MV Act in 1994. Therefore, considering facts as it is, otherwise also, appellant insurance company is liable to pay compensation to claimants because persons those who were travelling, they were travelling in goods vehicle as owner of goods because that fact has been disclosed in claim petition, FIR, as wellas in their evidence which has not been disproved by insurance company by leading proper evidence before claims tribunal. Claims Tribunal, Junagadh while giving details, also observed that these all persons were travelling with goods belonging to daughter of Dahyabhai which has been called as goods relating to kariavar means dowry after paying fare of Rs.50.00 to owner and driver of Matador involved in accident, therefore, person those who were travelling may be considered as owner of goods or representative of owner of goods and their risk is covered under section 147 of MV Act after amendment made in MV Act in the year 1994. No doubt this aspect has not been dealt with by Claims Tribunal Junagadh but it has been found from facts gathered by this court from award and, therefore, this being an additional ground to held liable appellant insurance company statutorily for making payment of compensation to claimants.
In view of above discussion made by apex court, contention raised by learned Advocate Mr. Nanavati cannot be accepted. According to my opinion, claims tribunal has rightly decided matter relying upon decision of apex court in case of Satpal Singh reported in AIR 2000 SC 235, claims tribunal has not committed any error when law has been decided by apex court in Baljit Kaur (supra), where legal position made clear, therefore, according to my opinion, claims tribunal has not committed any error which would require interference of this Court According to my opinion, claims tribunal has rightly relied upon decision which was binding and holding field at the relevant time to claims tribunal as precedent under Article 141 of Constitution of India. Therefore, none of contentions raised by learned Advocoate Mr. Nanavati can be accepted by this court and same are therefore rejected. Except that, on quantum, no contention has been raised by learned Advocate Mr. Nanavati before this court. Therefore, this court has not examined that part. Accordingly, for reasons recorded above, there is no substance in these appeals and same are required to be dismissed.
Accordingly, these appeals are dismissed having no substance. Interim relief granted by this court, if any, shall stand vacated. Claims tribunal Junagadh is directed to pay amount of compensation which has been deposited by insurance company accruing with interest, if any, to respondents claimants by way of an account payee cheque drawn in favour of respective respondents claimants after proper verification without any delay. There shall be no order as to costs.
(H.K. Rathod,J.) Vyas Top