The Divisional Manager vs Ramchandra Marthe on 24 April, 2024

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Madhya Pradesh High Court

The Divisional Manager vs Ramchandra Marthe on 24 April, 2024

Bench: Achal Kumar Paliwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 24 th OF APRIL, 2024
MISC. APPEAL No. 419 of 2023

BETWEEN:-
THE DIVISIONAL MANAGER NATIONAL INSURANCE
COMPANY LTD. (INSURER OF THE OFFENDING
VEHICLE) T.P. HUB D.O. 2 NEAR SHANKAR PETROL
PUMP M.R. 4 VIJAY NAGAR JABALPUR (MADHYA
PRADESH)

.....APPELLANT
(MSS ANJALI BANERJEE, ADVOCATE)

AND
1. KANHAIYA VISHWAKARMA S/O LATE SHRI
JHADU VISHWAKARMA, AGED ABOUT 60 YEARS,
VILLAGE PONGAR P.O. AMGAON P.S. AND TEHSIL
BAIHAR DISTRICT BALAGHAT (MADHYA
PRADESH)

2. TIKKU SINGH S/O LATE JAGRAJ SINGH, AGED
ABOUT 50 YEARS, R/O VILLAGE BIRWA P.S. AND
TEHSIL AAMGAON P.S. BAIHAR DISTRICT
BALAGHAT (MADHYA PRADESH)

3. SHIV KUMAR SONWANE S/O KHEMLAL
SONWANE, AGED ABOUT 47 YEARS, R/O VILLAGE
PONGAR P.O. AAMGAON P.S. AND TEHSIL
BAIHAR DISTRICT BALAGHAT (MADHYA
PRADESH)

.....RESPONDENTS
(MR. SANTOSH KUMAR MESHRAM, ADV.)

MISC. APPEAL No. 421 of 2023

BETWEEN:-
THE DIVISIONAL MANAGER NATIONAL INSURANCE
COMPANY LTD. (INSURER OF THE OFFENDING
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 21-05-2024
19:33:42
2
VEHICLE) T.P. HUB D.O. 2 NEAR SHANKAR PETROL
PUMP M.R. 4 VIJAY NAGAR JABALPUR (MADHYA
PRADESH)

.....APPELLANT
(MISS ANJALI BANERJEE, ADVOCATE)

AND
1. RAMCHANDRA MARTHE S/O LATE SHRI SAIRAGI
MARTHE, AGED ABOUT 50 YEARS, VILLAGE
PONGAR P.O. AMGAON P.S. AND TEHSIL BAIHAR
DISTRICT BALAGHAT (MADHYA PRADESH)

2. DILIP KUMAR MARTHE S/O RAMCHAND
MARTHE, AGED ABOUT 24 YEARS, R/O VILLAGE
PONGAR P.O. AAMGAON P.S. AND TEHSIL
BAIHAR DISTRICT BALAGHAT (MADHYA
PRADESH)

3. TIKKU SINGH S/O LATE JAGRAJ SINGH, AGED
ABOUT 50 YEARS, R/O VILLAGE BIRWA POLICE
STATION AND TEHSIL AAMGAON POLICE
STATION BAIHAR DISTRICT BALAGHAT (DRIVER
OF THE OFFENDING VEHICLE) (MADHYA
PRADESH)

4. SHIV KUMAR SONWANE S/O KHEMLAL
SONWANE, AGED ABOUT 47 YEARS, R/O VILLAGE
PONGAR P.O. AAMGAON P.S. AND TEHSIL
BAIHAR DISTRICT BALAGHAT (OWNER OF THE
OFFENDING VEHICLE) (MADHYA PRADESH)

.....RESPONDENTS
(MR. SANTOSH KUMAR MESHRAM, ADVOCATE)

These appeals coming on for admission this day, the court passed the
following:
ORDER

With the consent of the parties, heard finally at motion stage.

2.This common order shall govern the disposal of MA No.421/2023 (National Insurance Company Ltd. Vs. Ramchandra Marthe and others ) and MA No.419/2023 (National Insurance Company Ltd. Vs. Kanhiya and others arising out of award dated 18.8.2022 passed in MACC No.68/2019 and Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 3 MACC No.58/2019 by Member, MACT, Baihar, District Balaghat.

3. Both the MAs have been filed by the insurance company seeking setting aside of impugned award/exoneration from liability to pay compensation.

4. Learned counsel for the appellant insurance company after referring to evidence on record and written statement filed by the insurance company and also relying upon National Insurance Company Ltd. Vs. Bommithi Subbhayamma and others, (2005) 12 SCC 243 and New India Assurance Co.Ltd. Vs. Asha Rani and others, passed in Appeal (Civil) No.5385/2021 decided on 17.8.2021 submits that in the instant case, offending vehicle is a good carrying vehicle and at the time of accident injured/deceased and 5-6 other persons were travelling in the vehicle after having paid the fare and they were sitting in the back of the vehicle. They were not travelling as owner/representative of the goods. Seating capacity of offending vehicle is 1 1. On above grounds, it is urged that Tribunal has wrongly fastened liability upon the insurance company for payment of compensation. Hence, appeal filed by the appellant be allowed and appellant be exonerated from liability to pay compensation.

5.Learned counsel for the respondents/claimants, after referring to deposition of Dilip Singh as well as impugned award submits that at the time of accident, deceased Kaushal Bai and Indro Bai had gone to sell their vegetables and thereafter, after selling them, they were coming back along with remaining vegetables. Therefore at the time of accident, they were travelling as owner of goods being carried in the vehicle. Insurance company has not adduced any evidence in rebuttal. Therefore, findings recorded by the Tribunal with respect to liability to pay compensation by the insurance company is just and proper and no interference is required in the same.

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 4

6. I have heard learned counsel for the parties and perused the record of the case.

7. Admittedly, offending vehicle is a goods carrying vehicle/commercial vehicle and sitting capacity of the same is 1 1. Sole question before this Court is whether at the time of accident, deceased were travelling in offending vehicle as owner of vegetables and whether they were sitting in the cabin at the time of accident or not ?

8. With respect to above, Perusal of principles of law laid down by Hon'ble Apex Court in the case of Insurance Company Ltd. Vs. Rattani and Others, (2009) 2 SCC 75 and Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others, reported in (2003) 2 SCC 339, and National Insurance Company Ltd. Vs. Cholleti Bharatamma and Others, (2008) 1 SCC 423, reveal that insurance company is not liable to pay compensation to any persons travelling as gratuitous passengers in commercial/goods carrying vehicle but from Rattani (supra) a n d Cholleti Bharatamma(supra), it evident that if persons travelling in goods carrying vehicle/commercial vehicle are owner/representative of goods, then, position would be different.

9. So far as issue involved in the case is concerned, the same has been dealt by Hon'ble Apex Court in detail in National Insurance Company Ltd. Vs. Cholleti Bharatamma and Others, (2008) 1 SCC 423, and it has held as under :

"4. The said provision underwent an amendment in the year 1994 by Motor Vehicles Amendment Act, 1994 which reads as under : "147. Requirements of policies and limits of liability (1) In order to comply with the requirements of this Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 5 Chapter, a policy of insurance must be a policy which-

(a) * * *

(b) insurer 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 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)       *        *            *"
                                                   (emphasis supplied)

8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorised representative. 9 . Correctness of the decision in Satpal Singh [(2000) 1 SCC 237) came up for consideration before a three-Judge Bench of this Court in New India Assurance Co.

Ltd. v. Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] .

10. In Asha Rani [(2003) 2 SCC 223) having regard to various definitions involving the legal question, it was held: (SCC pp. 234-35, paras 23-28) "23. The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd. [(1999) 1 SCC 403) in this case must be considered keeping that aspect in view. Section 2(35) of the 1988 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of 'goods vehicle' in the 1939 Act and 'goods carriage' in the 1988 Act is significant. By Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 6 reason of the change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words 'in addition to passengers' occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under the 1988 Act.

24. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to Clause

(ii) of the proviso appended to Section 95 of the 1939 Act. The decision of this Court in Mallawwa case [(1999) 1 SCC 403) must be held to have been rendered having regard to the aforementioned provisions.

25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It d o e s not speak of any passenger in a 'goods carriage'.

26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used i.e. 'a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 7 therefor.

27. Furthermore, sub-clause (i) of Clause (b) of sub- section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle 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.

2 8 . An owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237) is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid."

(emphasis in original)

11. The effect of the 1994 Amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1) wherein this Court following Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] opined that the words "injury to any person"

would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma [(2005) 12 SCC 243] wherein upon taking into consideration a large number of decisions, the said Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 8 view was reiterated.

12. Yet again in New India Assurance Co.

Ltd. v. Vedwati [(2007) 9 SCC 486 : (2007) 3 Scale 397] this Court held: [Ed.: Quoting from Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, (2003) 2 SCC 339, pp. 342-43, paras 9-10.] (SCC p. 490, para 6) " 9 . ... The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in the definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'the WC Act'). There is no reference to any passenger in 'goods carriage'.

1 0 . The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor."

19. It is now well settled that the owner of the goods Signature Not Verified means only the person who travels in the cabin of the Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 9 vehicle.

20. In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the deceased had boarded the lorry and paid an amount of Rs 20 as transport charges. It has not been proved that the deceased w as travelling in the lorry along with the driver or the cleaner as the owner of the goods. Travelling with the goods itself does not entitle anyone to protection under Section 147 of the Motor Vehicles Act."

10. Hence, in view of above, facts of the case will be examined in the light of above prepositions of law. Admittedly, applicant witness Kanhaiya and Dilip Kumar are not eye witness to the incident. Only Laxmi Narayan has been examined as an eye witness and he has deposed that at the time of accident, Koshal Bai and Indro Bai were sitting in cabin and vegetable were kept in (Daala). This witness has stated in cross-examination that he is not aware whether in vehicle Koshal Bai, Indro Bai, Mahesh, Ramchandra, Rajkumar and Pancham over all six persons were sitting or not. From charge sheet and FIR Ex.A/2, it is evident that at the time of accident, Kaushal Bai and Indro Bai, Ramchandra, Rajkumar were travelling in the offending vehcile. Thus, if Laxmi Narayan was present on the scene of accident and he had witnessed the incident, then, he should have also witnessed about the remaining four persons, who were also injured in the same accident.

11. Further, name of this witness is not mentioned in the witness list in the charge sheet Ex.A/1. In the charge sheet Ex.A/1 and FIR Ex.A/2, it is not mentioned that persons sitting in the offending vehicle were also carrying some vegetables along with them. In both, Ex.A/1 A/2, it is mentioned that injured Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42 10 persons have gone to the market and FIR has been registered on the basis of statement of injured Pancham and claimants have not examined any of the injured persons who were travelling along with deceased Indro Bai and Kaushal Bai whereas all the injured persons belong to the same village where deceased used to live but no explanation for the same has been furnished.

12. There is nothing on record to show that as to how claimants got to know that Laxmi Narayan has witnessed the alleged incident where as his name is not mentioned in the witness list in charge sheet. In view of above, this witness is not a reliable witness.

13. Thus, in view of discussion in the forgoing paras, in this Court's opinion, it is not established that at the time of accident, deceased were travelling in the offending vehicle along with their goods. Therefore, insurance company is not liable to pay compensation. Hence, appeals filed by the insurance company are allowed and insurance company is exonerated from liability to pay compensation.

14. It is made clear that respondents Tikku Singh and Shiv Kumar Sonwane are liable to pay compensation jointly and severely as adjudged by Tribunal.

15. Accordingly, appeals filed by the appellants are disposed off and allowed.

(ACHAL KUMAR PALIWAL) JUDGE Hashmi Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 21-05-2024 19:33:42

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