Ram Krishna Gupta vs Smt.Munni Devi And Others
2012 Latest Caselaw 3295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 27
 

 
Case :- FIRST APPEAL FROM ORDER No. - 146 of 2001
 

 
Petitioner :- Ram Krishna Gupta
 
Respondent :- Smt.Munni Devi And Others
 
Petitioner Counsel :- R.K.Sharma
 
Respondent Counsel :- Deepak Kumar Agarwal,Anand Mohan,Shalini Srivastava
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Vishnu Chandra Gupta,J.

1. Shri R.K.Sharma, learned counsel appeared on behalf of the appellant. Ms. Sumaiya Kidvai holding brief of Shri Anand Mohan learned counsel appeared on behalf of opposite party no. 5 and Shri Deepak Kumar Agarwal learned counsel appeared on behalf of opposite parties no. 1 to 4.

2. Instant appeal, under Section 173 of the Motor Vehicle Act, has been preferred against the impugned award dated 6.5.1999 passed by Motor Accident Claim Tribunal in Motor Accident Claim petition No. 97 of 1997.

3. We have heard learned counsel for the parties at length and perused the record. In brief, deceased Kamlesh Kumar( husband of Smt. Munni Devi) was traveling in truck No. U.P. 34-A-7952 alongwith his goods (vegetables), which he has purchased from whole sale market (mandi). There were other persons traveling in the truck alongwith their goods. At about 4.15 p.m. when the truck reached on Barbat Jahani Marg, because of rash and negligent driving on the part of petitioner the truck turned turtle into the ditch of road side. In consequence thereof serious injury caused to the persons who were traveling alongwith their goods including Kamlesh Kumar. An FIR was lodged and wife of the deceased Smt. Munni Devi, Son Ravindra, daughter Veena devi and Sheela Devi preferred a claim petition. The tribunal had framed the following issues while adjudicating the controversy:-

(1)Whether on 6.4.1997 at 4.15 pm in the evening on Barbat Jahani Khera Marg Village Maksoodpur Police Station Pasigavan district kheri, because of the negligence of driver of vehicle No. U.P. 34 A/7952 the accident occurred in consequence thereof Kamlesh Kumar sustained injuries and succumb to it?

(2)Whether Kamlesh Kumar was traveling in the vehicle in question as gratuitous passenger. In case, Yes, then its effect?

(3)Whether the driver of the vehicle no. U.P. 34 A/7952 was having valid driving licence ?

(4)Whether at the time of accident the vehicle was duly insured with the insurance company ?

(5)To what amount of compensation are the claimants entitled from which party?

(6)Any other relief?

4. The tribunal had granted opportunity to parties to lead evidence and arrived to the conclusion that the deceased was gratuitous passenger. Though he was traveling alongwith goods but he is not entitled for compensation being gratuitous passenger. Though the tribunal had recorded a finding that vehicle was insured and driver was having licence but the insurance company (respondents) was not liable to pay compensation. The tribunal had fasten the liability and decreed the petition against the respondent owner. Feeling aggrieved with the impugned award the present appeal has been preferred by the owner of the vehicle.

5. Learned counsel for the appellant had invited attention to the Section 147 of the Motor Vehicle Act, (in short hereinafter referred as the Act) which was amended by Act No. 54 of 1994 w.e.f. 14.11.1994. Under Sub Section 1(b) of Section 147 of the Act, the legislature to their wisdom had added the word "injury to any person, including owner of the goods or his authorised representative carried in the vehicle". For convenience, Sub-Section 1 of Section 147 is reproduced 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 authorised insurer; or

 (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 1[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

 (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

 (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.

 Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead of injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."

6. While deciding the controversy the Tribunal had overlooked the aforesaid statutory mandate incorporated though amendment in the year 1994 which enable the owner of goods or his/her representative to travel with the goods and make entitled to claim compensation from the insurer.

7. Attention has been invited towards Apex court judgment reported in 2001 (6) SCC 713, Ramesh Kumar Vs. Insurance company limited and others. In the case of Ramesh Kumar (supra) their Lordship of Hon'ble Supreme Court had considered the issue at length and held that if a person is traveling alongwith his goods on a vehicle then he or she cannot be termed as gratuitous passenger. Earlier to case of Ramesh Kumar, in the case of Mallawwa (smt.) and others Vs. Oriental Insurance co. ltd. and others reported in 1999 SCC (Cri) 58, Hon'ble Supreme Court held that (under old Act) the test to ascertain gratuitous passenger is, only a vehicle which is used for a systematic carrying of passenger.

8. In one other case reported in 2003 (1) T.A.C. 1 (S.C.),New India Assurance Co. Ltd. Vs. Asha Rani and others, Hon'ble Supreme Court elaborately considered different provision with regard to gratuitous passenger and held as under:-

"13. The applicability of decision of this Court in Mallawwa (Smt.) & Ors. v. Oriental Insurance Company Ltd. & Ors. [(1999) 1 SCC 403] in this case must be considered keeping that aspect in view. Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the "goods vehicle" in 1939 Act and "goods carriage" in 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 passengers" occurring in the definition of goods vehicle in 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 1988 Act.

14. We have further noticed that Section 147 of 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 1939 Act. The decisions of this Court in Mallawwa's case (supra) must be held to have been rendered having regard to the aforementioned provisions.

15. Section 147 of 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 does not speak of any passenger in a 'goods carriage'.

16. In view of the changes in the relevant provisions in 1988 Act vis--vis 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 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 traveling in a goods vehicle, the insurers would not be liable therefor.

17. Furthermore, sub-clauses (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."

9. Attention has been invited towards a judgement and order dated 29.10.2010 passed by Hon'ble Single Judge of this Court in F.A.F.O No. 137 of 2001, Sanjeev Gupta and others Vs. Ram Pal and other connected petitions with regard to same accident from which present controversy arose. Learned Single Judge of this court had allowed the F.A.F.O relying upon the judgment of Ramesh Kumar (supra) and fastened the liability to insurance company.

10. In view of above, tribunal seems to have been failed to exercise jurisdiction vested in it and overlooked amended Section 147(1) of the Act.

11. The appeal deserves to be allowed. Accordingly appeal is allowed. The impugned award dated 6.5.1999 is modified to the extent it relates to liability assessed with regard to payment of compensation and shall be paid by respondent New India Insurance Company Limited and not by the owner of the vehicle. Award stands modified interms of above.

Let entire amount under the award alongwith interest be deposited before the tribunal in terms of award by the respondent insurance company within two months and tribunal shall release the same in favour of claimant respondents expeditiously, say within a period of two months. The amount in terms of award shall be released in favour of claimant in the form of fixed deposit for the period of one year. Thereafter claimant shall be entitled to withdraw the same to the extent above. The amount deposited by the owner, if any, before this court shall be remitted to the tribunal and entitled for refund.

No order as to costs.

[Justice Devi Prasad Singh]

[Justice Vishnu Chandra Gupta]

Order Date :- 30.7.2012

Madhu