Gujarat High Court
Chatur Dhedia Rathwa vs Abdul Sattar Idrishbhai Pathan on 13 February, 2023
Author: Ashutosh J. Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2472 of 2008
With
R/FIRST APPEAL NO. 2002 of 2008
With
R/FIRST APPEAL NO. 2003 of 2008
With
R/FIRST APPEAL NO. 2004 of 2008
With
R/FIRST APPEAL NO. 2770 of 2008
With
R/FIRST APPEAL NO. 2771 of 2008
With
R/FIRST APPEAL NO. 2772 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
==================================================
1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any order made thereunder ?
================================================== CHATUR DHEDIA RATHWA & 1 other(s) Versus ABDUL SATTAR IDRISHBHAI PATHAN & 2 other(s) ================================================== Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2 MS DIMPLE A THAKER(6838) for the Defendant(s) No. 3 MR AY BACHANI for Insurance Company RULE SERVED for the Defendant(s) No. 1,2 ================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Date : 13/02/2023 Page 1 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined COMMON CAV JUDGMENT
1. Present batch of First Appeals are filed under Section 173 of Motor Vehicles Act in connection with common judgment and award passed on 1.3.2007 by learned Motor Accident Claims Tribunal (Aux. Judge), Fast Track Court No.4, Vadodara.
2. Since common judgment and award is sought to be requested to be modified, separate first appeals have been filed in respect of each claim petition, details whereof would be provided hereunder, but few facts related to controversy are taken from First Appeal No.2472 of 2008 for sake of convenience.
3. In First Appeal No.2472 of 2008, original claimants have asserted that son of appellant namely Ramanbhai Chaturbhai Rathwa was going from Chhota Udepur to Vapi-Navsari for labour work with his wife and sister on 5.12.2003 at 7.30. a.m. with goods in Truck No.GJ-17 X-2289. When they reached near Pathakvadi Vyara- Unai Road, respondent No.1 -truck driver driving his truck in full speed in rash and negligent manner lost control over steering and as such, truck turned turtle. As a result of accident, deceased, his wife and sister sustained fatal injuries and died on the spot. On account of such unnatural and untimely death, a claim petition was submitted before Motor Accident Claims Tribunal, Vadodara claiming compensation of Rs.4 lakh. This First Appeal relates to Claim Petition No.382 of 2004.
4. On the basis of documentary evidence as well as oral evidence tendered by both the sides and after full-fledged Page 2 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined adjudication, learned Motor Accident Claims Tribunal was pleased to partly allow the claim petition of the claimants and awarded an amount of Rs.2,07,800/- with 8% interest and cost vide judgment and award dated 1.3.2007 and it is this judgment and award which is requested to be modified by enhancing the compensation by way of present First Appeal.
5. Except First Appeal No.2472 of 2004, in other cognate First Appeals in this group, original opponent No.3- i.e. Oriental Insurance Company Ltd. has challenged common judgment and award dated 1.3.2007 passed by Motor Accident Claims Tribunal (Aux. Judge) Fast Track Court No.4, Vadodara in respective claim petitions, by basically contending that deceased were traveling in a goods vehicle and accident occurred after amendment of Section 147 of the Motor Vehicles Act, i.e. 14.11.1994, whereas accident had occurred on 5.12.2003 without any goods and as such, risk of passengers traveling goods vehicle was not covered by insurance policy and as such, since risk is not covered by insurance policy as they were gratuitous passengers, question of shifting liability upon present Insurance Company does not arise and as as such, has requested to allow the batch of first appeals insofar as it relates to liability of Insurance Company under the award is concerned.
6. Since the original claim petitions were arising out of the very same accident, said claim petitions were clubbed together and by common judgment and award, as indicated above, a decision is taken, which is made subject matter of present set of appeals. As indicated above, one First Appeal No.2472 of 2008 is related to seeking enhancement of compensation, whereas other Page 3 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined appeals are filed by Oriental Insurance Company Ltd. for requesting not to fasten liability as is impermissible. These First Appeals have been ordered to be heard together and in aforesaid background of facts, same have come up for consideration before this Court.
7. Learned advocates appearing for Insurance Companies in aforesaid First Appeals have contended that on 5.12.2003, i.e. much after amendment which took place in Section 147 of the Motor Vehicles Act, and that being so, question of shifting liability of compensation on Insurance Companies is out of place. It has been contended that conclusion arrived at by learned Tribunal that Insurance Company would be held liable is quite contrary to the State provision, hence order requires to be corrected insofar as it affects appellant Insurance Companies. It has been contended that deceased and injured were undisputedly the passengers traveling in a goods vehicle without goods and as such, under the terms of insurance policy, are not entitled to seek compensation from appellant Insurance Companies. On construction of amending provision of Section 147 and in view of the terms of the insurance policy, gratuitous passengers are not covered under the policy and therefore, it has been vehemently contended that putting burden on the Insurance Company of compensation is an erroneous approach on the part of learned Tribunal and therefore, error which has been committed deserves to be corrected. To substantiate such contention, learned advocates on behalf of the Insurance Companies have drawn attention of this Court to the findings arrived at by learned Tribunal and thereby requested the Court to grant reliefs as prayed for in the First appeals. To support this Page 4 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined contention, a reference is made to the decision delivered by Hon'ble Apex Court in the case of National Insurance Co. Ltd., v.
Bommithi Sybbhayamma, reported in (2005)12 SCC 243 (2005 ACJ 721) and thereby has requested the Court to set aside the impugned order insofar as it relates to Insurance Companies.
8. It has been further contended that these deceased passengers undisputedly were traveling in the goods vehicle without their own goods and panchnama is clearly indicating such situation and as such, these terms and conditions of the policy coupled with amending provision are unambiguous and learned Tribunal ought not to have held Insurance Companies responsible for mitigating the compensation. For the purpose of strengthening the submission, learned advocates appearing for the Insurance Companies have made a reference to the documents at Exhs.21 and 22, being FIR and panchnama respectively, and have stated before the Court that no goods were referred to or found on the spot belonging to deceased either on place or in vehicle and therefore, they are not entitled to claim compensation against Insurance Companies. On the contrary, in an evidence of Malsi Baria, a claimant's witness, which can reflect that rather it is an admitted position that all were traveling as gratuitous passengers and that being so, liability cannot be fastened upon the Insurance Company. For the purpose of this submission, learned advocate Mr. Bachani appearing on behalf of Insurance Company along with learned advocates, as stated above, made a reference to two decisions, viz. 2005 (0) AIJEL-SC 34984 and 2017 (0) AIJEL-SC 59808 and then has contended that an error is committed by learned Tribunal in passing such award against the Insurance Company.
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9. Learned advocates appearing for the appellant Insurance Companies have further submitted that limitation clause contained in insurance policy would clearly indicates that since these deceased passengers were gratuitous passengers, liability cover is not available, as such also appellant Insurance Company is not liable. It has been submitted that from the deposition, it is clearly emerging that they were passengers, six persons died on spot and these passengers were traveling without their respective goods and as such, in view of yet another decision delivered by Hon'ble Apex Court reported in 2007 Lawsuit (SC) 1127, liability to pay compensation does not arise, that of the appellant Insurance Company, and by referring to the aforesaid contentions mainly with relevant record, have reiterated that order qua Insurance Companies deserves to be quashed.
10. As against this, learned advocates appearing on behalf of the original claimants have vehemently opposed the stand of the Insurance Companies and have submitted that no such hyper technical view be taken, especially when in a serious accident, six persons have died on the spot and undisputedly, truck was an insured vehicle and as such, in a benevolent legislation, it is not open for the Insurance Company to take such a plea which would frustrate the very object of the provision related to the award of compensation. Learned advocates have further contended that from panchnama and other material, it has been revealed that these deceased persons had gone for labour work and were taken in a vehicle for the purpose of carrying out work and as such, it cannot be said that they were gratuitous Page 6 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined passengers and Insurance Company cannot take advantage of hyper technicality to evade the liability of making payment. It has been contended that on the contrary, very meager amount, as against the claim which is awarded and for that also, Insurance Company is not to evade liability by taking such plea. Findings arrived at by learned Tribunal are clear, based upon critical analysis of the material on record and as such, cannot be said to be perverse, which may call for any interference and as such, request is made not to disturb the order which has been passed by learned Tribunal below. It has been contended that a well-reasoned order is passed which is in consonance with the object of the provisions of the Statute, hence cannot be interfered with.
11. In addition to this, learned advocate Mr. Hiren Modi appearing on behalf of the claimants, appellants in First Appeal No.2472 of 2008, which is filed for seeking enhancement, has not only supported the view taken by the Tribunal but has submitted that poor labourer cannot be expected to sit in a vehicle for going for labour work only after ascertaining the fact that the vehicle is insured or not and as such, Insurance Company on the basis of technicality cannot escape from responsibility.
12. In addition to it, it has been contended by learned advocate Mr. Modi that though deceased in this case was aged about 22 years, multiplier 12 is applied, which is also incorrect. In fact, income of Rs.1800/- which has been assumed in this first appeal is also at a very lower side. On the contrary, according to him, on the basis of Index of minimum wages as well as Page 7 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined schedule, estimated income of Rs.2100/- per month ought to have been considered and on that basis, 40% prospective income ought to have been added, which comes to Rs.2940/- per month and then by submitting that, instead of one-third, 50% ought to have been considered with future loss of income, which would come to Rs.17,640/- per annum and therefore, on the basis of ratio laid down by Hon'ble Apex Court in the case of Pranay Sethi, calculation which has been drawn by learned Tribunal is also on very lower side and as such, request is made to enhance compensation by accepting the income as indicated above.
13. A deceased was aged about 22 years and as such, instead of applying 18 multiplier, multiplier of 12 is applied. Hence, apparently, amount awarded is at a very- very low rate. Hence, if multiplier of 18 is applied, amount comes to Rs.3,17,520/- and regarding parental consortium, Rs.40,000/- ought to have been allowed and as against amount of Rs.5,000/- which has been awarded of post ritual, Rs.15,000/- ought to have been awarded and as such, if said amounts are to be properly calculated, amount which has been awarded deserves to be enhanced, and as such, has requested that the appeals filed by the Insurance Companies deserve to be dismissed, whereas enhancement appeal deserves to be allowed.
14. Learned advocate Mr. Hiren Modi has submitted a short synopsis/ submission, indicating calculation. According to him, what ought to have been awarded and since same is in written form, the Court would like to indicate the same hereunder:-
3. The deceased was 22 years old and doing labour work and used to earn Rs.70/-to 80/- per day. The learned Tribunal considered quantum as under :-Page 8 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023
NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined
1. Income consider 1,800/-
600/- 1/3 deducted personal expenses 1,200/-
12 month 12 multiplier 1,72,800/-
15,000/- Medical 15,000/- Loss to estate 5,000/- Funeral 2,07,500/-
2. As per submission 2,100/-
+ 840/-
2,940/-
- 1,470/-
1,470/-
x 12 months
17,640/-
x 18 Multiplier
3,17,520/-
+ 80,000/- Parental Consortium
+ 15,000/- Estate
+ 15,000/- Funeral
+ 15,000/- Pain, Shock and suffering
4,42,000/-
15. Learned advocate Mr. Modi, to support his submission, has
relied upon following decisions:-
(1) CAV judgment dated 11.3.2022 passed in First Appeal
No.1086 of 2014 passed by coordinate Bench of this Court;
(2) Judgment rendered by Hon'ble Supreme Court in the case of Manuara Khatun and others Vs. Rajesh Kumar Singh and others reported in 2017 ACJ 1031;
(3) Judgment rendered by Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and others reported in 2017 ACJ 2700;
(4) Judgment rendered by Hon'ble Supreme Court in the case of Page 9 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined Magma General Insurance Co. Ltd. Vs. Nanu Ram and others reported in 2018 ACJ 2782;
(5) Judgment rendered by Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Satinder Kaur and others reported in 2020 ACJ 2131;
And requested the Court that Insurance Company may not be allowed to squat-free on hyper technicality by taking advantage of provisions of the terms which are not known to unfortunate deceased while traveling in a vehicle.
16. In the alternative, it has been submitted that even assuming without admitting that Insurance Company is not possible to be attached with responsibility of compensation, then by applying principle of Pay and Recover, amount be disbursed, leaving it open for Insurance Company to recover the same from respective owner or driver and for that purpose, has requested to pass suitable order in the interest of justice.
17. As against this, in rejoinder, learned advocates appearing for the Insurance Company namely Ms. Dimple Thaker as well as Mr. A.Y. Bachani have tendered few decisions delivered by Hon'ble Apex Court as well as by High Courts, same are enlisted hereunder:-
* Ms. Dimple Thaker Advocate (First Appeal No. 2770 to 2772 of 2008) : List of citations:
1. In the case of New India Assurance Co. v. Bhailal Bhikubhai Rathod (First Appeal No.4215 of 2008).
2. In the case of Oriental Insurance Co. Ltd. v. Ramdebbhai Odedara (First Appeal No.1529 of 2105).
3. In the case of United India Insurance Co. Ltd., v. Bava Sajjanben Dahyagiri & Ors., )First Appeal No.3183 of 2009 Page 10 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined and 3184 of 2009.)
4. In the case of Oriental Insurance Co. Ltd. v. Kaminiben (First Appeal No.913 of 2011.)
5. In the case of Hiteshkumar Patel v. Rajendra Yadav (First Appeal No.2113 of 2005).
6. In the case of United India Insurance Co. Ltd. v. Rajabhai Harijan (First Appeal No.4149 of 2009 and 4150 of 2009).
7. In the case of United India Insurance Co. Ltd. v. Minaben Patel (First Appeal No.2835 of 2005 and 2840 of 2005).
8. In the case of United India Insurance Co. Ltd. v. Decd.
Bhikhabhai (First Appeal No. 2121 of 2008).
9. In the case of Bhandrapada Gruh v. Keshuben Shamjibhai (First Appeal No.92 of 2009).
10. In the case of National Insurance Co. Ltd. v. Bommithhi Subbhayamma (First Appeal No. 2005 (12) 243).
Learned advocate Mr. A.Y. Bachani - List of citations:
1. In the case of National Insurance Co. Ltd., v. Bommithi Sybbhayamma reported in 2005 (12) SCC 243.
2. In the case of Manuara Khatun v. Rajesh Kr. Singh reported in 2017 (4) SCC 796.
3. In the case of National Insurance Co. Ltd., v. Cholleti Bharatamma reported in 2008 (1) SCC 423.
By referring to the aforesaid decisions, a request is made to consider and absolve the Insurance Companies from its responsibility to pay amount of compensation.
18. Having heard learned advocates appearing for the parties and having gone through the material on record, following circumstances first deserve consideration before coming to an ultimate conclusion in the present batch of appeals.
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19. In First Appeal No.2472 of 2008, in the accident by very same Truck No.GJ-17 X-2289, daughter-in-law of the appellant Savitaben @ Ladiben Ramanbhai Rathwa also on account of fatal injuries and as such, claim of Rs.4 lakh was sought for by way of claim petition, in which awarded amount is Rs.2,07,800 with 8% interest by said common judgment. This first Appeal relates to Claim Petition No.383 of 2004.
20. Having heard the learned counsel appearing for the respective parties and having gone through the material on record, the question which arises for consideration is where the passengers traveling in goods vehicle in the event of accident taking place whether the Insurance Company can be saddled with liability or not? Here in the present batch of appeals, the main question raised by the Insurance Company is that passengers were traveling in goods vehicles and there was no separate premium paid by the owner and as such, the Insurance policy was not covering the liability of said passengers who were gratuitous passengers and as such, under this situation, by now, in series of decisions, the Courts' have taken the view that the Insurance Company cannot be saddled with the liability of compensation when the victims were gratuitous passengers. Few decisions relevant to the issue pointed out before the Court deserves to be taken note of. Hence, the relevant observations contained in the said decision, the Court deems it proper to quote here-under:
(1) The Hon'ble Court in the case of National Insurance Co. Ltd., v. Bommithi Subbhayamma reported in 2005 (0) AIJEL (SC) 34984 has allowed the appeal of Page 12 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined Insurance Company while dealing with the very same issue. The relevant observations contained therein, the Court deems it proper to reproduce hereunder :
6. In Asha Rani (supra), this Court while overruling Satpal Singh (supra) has clearly held that the insurance company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle.
7. Asha Rani (supra) was followed in Oriental Insurance Co.
Ltd. v. Devireddy Konda Reddy, 2003 (2) SCC 339. Yet again, the said view was upheld in New India Assurance Co. Ltd. v. Ajit Kumar, 2003 (9) SCC 668. 8. The question again came up for consideration before a 3-Judge Bench of this Court, of which we are members, in National Insurance Co. Ltd. v. Baljit Kaur and Ors., wherein upon considering the effect of amendment carried out in Section 147 of the Motor Vehicles Act, 1988 by Motor Vehicles (Amendment) Act, 1994, it was opined:
"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 Section 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 Clause
(b) of Sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. The observations made in this connection by the Court in Asha Rani case (supra) to which one of us, Sinha, J, was a party, however, bear repetition :
"26. In view of the changes in the relevant provisions in the 1988 Act vis-a-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. Page 13 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined "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 therefore.
" In Asha Rani (supra) it has been noticed that Sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 of the 1988 Act 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. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods for his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people."
9. The same view was reiterated in National Insurance Co. Ltd. v. Challa Bharathamma and Ors., 2004 (8) SCC 517; Pramod Kumar Agrawal and Anr. v. Mushtari Begum (Smt.) and Ors., 2004 (8) SCC 667 and also in National Insurance Co. Ltd. v. V. Chinnamma and Ors., 2004 (8) SCC 697."
21. Yet another decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd., v. Cholleti Bharatamma reported in 2007 LawSuit (SC) 1127 has also reiterated the very same view after considering the amendment which has taken place in this Page 14 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined regard.
7. In Ramesh Kumar v. National Insurance Co. Ltd. & Anr. [(2001) 6 SCC 713], this Court categorized the cases arise out of the Motor Vehicles Act, 1939, stating : The first category of cases arise out of the Motor Vehicles Act, 1939 (hereinafter referred to as the old Actµ). The question raised for this category is: Whether the insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passengers including the owner of the goods or his representative, travelling in a goods vehicle under Section 95 of the said Act? The second category of cases arise out of the Motor Vehicles Act, 1988 (hereinafter referred to as the new Actµ) prior to its amendment in 1994. In this category also a similar question is raised. The third category of cases also arises under the new Act but after its amendment by Act 54 of 1994. In this category also the same question is raised.µ
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 authorized representative.
9. Correctness of the decision in Satpal Singh (supra) came up for consideration before a three Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani and Others [(2003) 2 SCC 223]. In Asha Rani (supra), having regard to various definitions involving the legal question, it was held :
"23. The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd. 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 vehicleµ in the 1939 Act and goods carriageµ in the 1988 Act is significant. By 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 passengersµ occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that goods carriageµ would mean a motor vehicle constructed or adapted for use solely for the carriage of goodsµ. Carrying of passengers in a "goods carriageµ", thus, is not contemplated under the 1988 Act.Page 15 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023
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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 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 vehicleµ. 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 Workmens Compensation Act. It does not speak of any passenger in a goods carriageµ.
26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words any personµ must also be attributed having regard to the context in which they have been used i.e. a third partyµ. 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 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.
28. 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 Courts decision in New India Assurance Co. v. Satpal Singh 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.µ Page 16 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined
10. The effect of 1994 amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur & Ors. [(2004) 2 SCC 1], wherein this court following Asha Rani (supra) opined that the words injury to any personµ 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 & Ors. [(2005) 12 SCC 243] wherein upon taking into consideration a large number of decisions, the said view was reiterated."
22. Thus, the aforesaid view is also followed by yet another decision of Hon'ble Apex Court in the case of Manuara Khatun v. Rakesh Kr. Singh with Mamoni Saikia Mohanty v. Rajesh Kr.Singh reported in 2017 (0) AIJEL SC 59808. With a view to avoid unnecessary burden, the present judgment since the law on the issue is trite law, the observations contained in the said decision is not produced, but on the basis of these observations as stated above, it is quite clear that in the present case also, undisputedly, when the victims were travelling in goods vehicle, and there was no additional premium paid to the Insurance Company by the owner of the vehicle in question, the liability of compensation cannot be stretched insofar as it relates to present Insurance Company i.e. the appellant herein.
23. Additionally on the basis of the record which has been made available, this fact of travelling in goods vehicle by the deceased and the victims is also fortified not only from the assertion of First Information Report lodged on 05.01.2003 before the Vyara Police Station reflecting at Exhibit-21 on page 42 of the paper book compilation, but also from the panchnama Page 17 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined which has been carried out at the time of occurrence of the incident. The said panchnama is reflecting on Page-45 of the paper book compilation which indicates clearly that Truck bearing registration no. GJ 17 X 2289 was a goods vehicle and the material which has been found of powder related to marble stone would indicate that the vehicle in question was a goods vehicle. Further, the Insurance policy reflecting on page 52 would also indicate that there was no additional premium made available which would cover the liability of compensation. However, on the basis of cross examination of witness Mansingh H. Rathva who survived in the accident is also not cross examined. In fact, they had not taken material with them, but had paid rent for travelling in the said truck and as such, the material indicates that the deceased and the victims were travelling in goods vehicle and the Insurance policy is not covering the risk of these passengers and as such, fastening the liability of compensation on the appellant Insurance Company appears to be out of place in view of the aforestated settled proposition of law. Hence, appeals of Insurance Company on this count deserve to be allowed.
24. This view about gratuitous passengers travelling in goods vehicle is entitled to seek compensation from the Insurance Company or not is also further reiterated that no liability of Insurance Company can be fixed and in the recent past as well, various High Courts have also reiterated the very same principle. Hence, when such is the law prevailing it appears that the appellant Company has made out a case which may call for interference. Accordingly, First Appeals No. 2002/2008, 2003/2008, 2004/2008, 2770/2008, 2771/2008 and Page 18 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined 2772/2008 deserve to be allowed on this count alone. It is made clear that except present appellant Insurance Company other opponents are not absolved from the liability of compensation which has already been awarded by the learned Tribunal in award dated 01.03.2007 by the learned Tribunal.
25. Insofar as First Appeal 2472/2008 is concerned, the same is filed by the claimants for seeking further amount of compensation to the tune of Rs.2 lakhs as against the amount which has been awarded by the learned Tribunal. In this appeal, learned advocate Mr. Modi appearing for the claimants has submitted that the deceased in respect of such First Appeal was aged about 22 years and the learned Tribunal has erroneously applied the multiplier of 12 and the income which has been assumed by the learned Tribunal was also found to be on very lower side and as such, has submitted that the deceased was doing a labour work and was earning Rs.70-80/- per day, the calculation chart was submitted as indicated in paragraph 14 on the basis of principle of fair and reasonable compensation. It appears to this Court that the calculation submitted is found to be reasonable considering the methodology applied by calculating the ultimate compensation. So the Court considers, deem it fit to accept the same and after deducting the amount which has already been awarded, further amount of compensation as indicated in tabular form is accepted. To that extent First Appeal No. 2472 of 2008 is allowed and the opponents except the appellant Insurance Company namely Oriental Insurance Company Ltd., i.e. opponent no. 3 in this appeal, other opponents are liable to pay the said amount of compensation. Accordingly, First Appeal 2472 of 2008 is allowed Page 19 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023 NEUTRAL CITATION C/FA/2472/2008 CAV JUDGMENT DATED: 13/02/2023 undefined to the aforesaid extent. Hence, the following order is passed which would meet the ends of justice:
(1) First Appeal 2002 of 2008, 2003 of 2008, 2004 of 2008, 2770 of 2008, 2771 of 2008, 2772 of 2008 are hereby allowed in favour of Insurance Company and it is observe that the said liability of compensation which has already been determined by the learned Tribunal is liable to be paid by other opponents except the appellate Insurance Company and for recovering of the same, the respective claimants are entitled to carry out appropriate proceedings in that regard.
(2) Insofar as First Appeal 2472 of 2008 is concerned, the same is allowed as indicated above and additional of Rs.2,34,500/- (Rs.4,42,000 - Rs.2,07,500), opponents except the Oriental Insurance Ltd., are liable to pay the same to the appellants of this appeal with proportionate costs and interest at the rate of 6% and the award dated 1.3.2007 passed by the learned Tribunal is modified to the aforesaid extent.
(3) All First Appeals accordingly STAND DISPOSED OF by present common judgment.
(4) Records and Proceedings to be transmitted to the concerned Tribunal forthwith.
Sd/-
(ASHUTOSH J. SHASTRI, J) OMKAR/PHALGUNI Page 20 of 20 Downloaded on : Sun Sep 17 21:48:35 IST 2023