Girdhar Gopal Gulati vs Smt.Shavitri Devi And Others
2022 Latest Caselaw 9489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 01.08.2022
 
Delivered on 06.08.2022
 
Court No. - 10
 

 
Case :- FIRST APPEAL FROM ORDER No. - 655 of 1992
 

 
Appellant :- Girdhar Gopal Gulati
 
Respondent :- Smt.Shavitri Devi And Others
 
Counsel for Appellant :- ,A.B. Saran,Vivek Saran
 
Counsel for Respondent :- Y.D. Awasthi
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Sri Vivek Saran, learned counsel for the appellant and Sri Amit Manohar, learned counsel for the Insurance Company are present.

2. This is an appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as "the new Act of 1988") read with Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as "the old Act of 1939"), arising out of judgment and award dated 23.02.1992 passed by Motor Accident Claims Tribunal/VIIth Additional District Judge, Kanpur Nagar in Claim Petition No.100 of 1987.

3. Before adverting to decide the issue on merit, brief facts are necessary for better appreciation of the case which are as under :

4 The deceased Babu Ram was travelling in Truck No.USR 9869 when the accident took place on 27.02.1987 at 3:45 P.M. near Petrol Pump Naramau, Kanpur Nagar in which Babu Ram succumbed to injuries. The claim petition was filed by the widow and sons of deceased Babu Ram under Section 92A and 110-A of the old Act of 1939. The claim petition was contested by the Insurance Company as well as owner of the vehicle in which the Tribunal framed following issues :

"1. Whether the driver of Truck No.LRS 9869 caused any accident in which the deceased sustained injuries and died?

2. Whether the accident was caused due to rash and negligent driving of the above said truck driver?

3. Whether the claim is not maintainable on account of the fact that the deceased was travelling in the said truck no.URS 9896?

4. Whether the Insurance Company is liable to pay any compensation?

5. Whether all the legal representatives have not been impleaded as party as petitioners in the claim? If so, its effect?

6. Whether the driver of the said vehicle was plying vehicle without having valid driving licence and road permit? If so, its effect?

7. To what amount of compensation, if any, are the claiments entitled to get and from which party?"

5. While deciding the said claim petition, the Tribunal found that the deceased Babu Ram was a gratuitous passenger and the driver/owner of the truck was carrying passenger in goods vehicle against the terms of the policy, hence there was no liability of the Insurance Company for payment of compensation and it was the owner of the vehicle/driver, who was responsible for payment of compensation. The Tribunal while making the award on 23.02.1992 awarded a sum of Rs.45,000/- along with 6% interest from the date of making of claim petition till the date of payment to be made by the owner of the vehicle. Against the said judgment, the present appeal has been preferred.

6. At the time of admission of appeal in the year 1992, the appellant, who is the owner of the vehicle was directed to deposit Rs.15,000/- which he did while the rest of the award was stayed.

7. Sri Vivek Saran, learned counsel appearing for the owner of the vehicle submitted that both the claimant and Insurance Company had failed to lead any evidence to show that the owner had directed the driver to carry the passengers in the truck as such the Insurance Company was liable to pay the amount of compensation awarded by the Tribunal. According to him, the vehicle in question was insured with the National Insurance Company and the award should have been made payable by the Insurance Company and not the appellant. Reliance has been placed upon Section 95 of the old Act of 1939. Reliance has also been placed upon decision of Apex Court in case of Smt. Mallawwa etc. vs. The Oriental Insurance Company Ltd. & Ors. (1999) 1 SCC 403.

8. Sri Amit Manohar, learned counsel appearing for Insurance Company submitted that the matter in regard to carrying of gratuitous passenger in good vehicle arising out of the old Act of 1939 is no more res integra and the issue has been decided by the Apex Court in case of Ramesh Kumar vs. National Insurance Co. Ltd. and others (2001) 6 SCC 713. According to him, under the old Act of 1939, in case of any death or bodily injury of either owner or representative or the gratuitous passenger then, liability to pay compensation notwithstanding that vehicle involved in the accident is a goods vehicle, the liability of Insurance Company will not arise. He has also relied upon subsequent decision of the Apex Court in case of National Insurance Co. Ltd. vs. V. Chinnamma and others (2004) 8 SCC 697; New India Assurance Co. Ltd. vs. Vedwati and others (2007) 9 SCC 586.

9. I have heard the respective counsels for the parties and perused the material on record.

10. This is a case arising out of the old Act of 1939. The accident is of the year 1987 and claim petition was filed under Section 92-A and Section 110-A of the old Act of 1939. The only question which has to be decided in the present appeal is that whether under the provisions of Section 95 of the the old Act of 1939, the Insurance Company is liable to pay the compensation to a gratuitous passenger being carried in a good vehicle, Section 95 as it was is being extracted hereas under :

"95(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 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) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person 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 3[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 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 a 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 front the vehicle at the time of the occurrence of the event 'out of which a claim arises, or

(iii) to cover any contractual liability.

(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:-

(a) where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, (8 of 1923.) in respect of the death of, or bodily injury to, employees, (other than the driver), not exceeding six in number, being carried in the vehicle ;

(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees ; and in respect of passengers, a limit of twenty thousand rupees in all, and four thousand rupes in respect of an individual passenger, if the vehicle is registered to carry out more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver.

(c) where the vehicle is a vehicle of any other class the amount of the liability incurred.

(3) ........ Omitted..

(4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form a containing the prescribed particulars of any, conditions subject which the policy is issued and of any other prescribed matters different forms, particulars and matters may be prescribed in different cases.

(4A) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify he fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person, specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person."

11. The Hon'ble Apex Court in the case of Ramesh Kumar (supra) had the occasion to consider three categories of cases when question arose as to whether there is any liability of the Insurance Company to pay compensation on account of death or bodily injury of the gratuitous passenger including the owner of the goods or his representative travelling in a goods vehicle, both under Section 95 of the old Act of 1939 and the new Act of 1988 prior to this amendment in 1994 and post amendment 1994. The Hon'ble Apex Court dealing with the three categories of cases, while deciding the category (1), where the matter was in regard to the payment of compensation under Section 95 of the old Act of 1939, the Hon'ble Court held that in view of its earlier judgment rendered in Smt. Mallawwa etc. (supra), the Insurance Company was not liable for any damages in case of gratuitous passenger including owner of the goods or his representative who travelled in a goods vehicle. Relevant paras 3, 4, 5 and 6 of the judgment are extracted hereas under :

"3. The first category of cases arise out of the Motor Vehicles Act, 1939 (hereinafter referred to as "the old Act"). 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?"

4. The second category of cases arise out of the Motor Vehicles Act, 1988 (hereinafter referred to as "the new Act") prior to its amendment in 1994. In this category also a similar question is raised. The third category of cases also arise under the new Act but after its amendment by Act 54 of 1994 [Motor Vehicles (Amendment) Act, 1994] . In this category also the same question is raised.

5. Thus the question raised in all these cases is about the liability of the insurance company, for the payment of compensation to the claimants for those falling under the aforesaid field on account of their death or bodily injury while travelling in a goods vehicle. We are disposing of through this judgment, the groups of cases falling under Categories I and III respectively. So far as cases covered under Category II are concerned, we will be dealing with them through a separate judgment and order.

6. Category I cases are all in which a claim petition has been filed by the claimants on account of death or bodily injuries of either the owners or their representative or the gratuitous passengers. In all these cases the claimants claimed compensation under Section 95(1)(b)(i) and clause (ii) of the proviso after its amendment in 1969 under the old Act. The submission is, it is the Insurance Company, which is liable to pay the compensation notwithstanding that the vehicle involved in the accident is a goods vehicle. On the other hand, submission for the Insurance Company is that they are not liable for those passengers who travel by a goods vehicle, in view of the language used in Section 95 of the old Act. The cases under this category need not detain us long as this question has been directly raised and decided in the case of Mallawwa v. Oriental Insurance Co. Ltd. (1999) 1 SCC 403. In this case the accidents were in the period between 1971 and 1985. This Court held, the Insurance Company is not liable for any damage in cases of the gratuitous passengers including owner of the goods or his representative who travelled in a goods vehicle. So the first category of cases is disposed of in terms of this declaration that liability to pay compensation to the claimants of such person is not on the Insurance Company but on the owner of the goods vehicle. In case the Insurance Company had made part or full payment towards such compensation awarded, the same shall not be refunded from the claimants but is recoverable by the Insurance Company from the owners. In case the amount has been withdrawn by the claimants on furnishing any security, the said security shall stand discharged. In case no payment or part-payment has been made to the claimants, we direct the owners of the vehicle to pay the awarded compensation to the claimants within a period of three months from today. Accordingly the first category of cases is disposed of."

12. Subsequently, the Hon'ble Apex Court in case of New India Assurance Co. Ltd. vs. Asha Rani (2003) 2 SCC 223 had the occasion to consider that post amendment in the new Act of 1988, which was made on 14.11.1994 whether a gratuitous passenger travelling in a goods vehicle was entitled to compensation from Insurance Company, the Court held in negative.

13. The judgment of Asha Rani (supra) was followed subsequently in National Insurance Co. Ltd. vs. Baljit Kaur (2004) 2 SCC 1.

14. Relying upon the judgment of Asha Rani (supra) and Baljit Kaur (supra), the Hon'ble Apex Court took similar view in V. Chinnamma and others (supra).

15. Similar was the view taken by Apex Court in case of Vedwati and others (supra) that a vehicle insured as a goods vehicle was not authorized to carry gratuitous passenger and there be no liability of the Insurance Company. Relevant para is extracted hereas under :

"The difference in the language of "goods vehicle" as appear 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 definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good 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 'WC Act"). There is no reference to any passenger in "goods carriage".

10. 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 therefore.

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. (2003) 2 SCC 223 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 Ors. (2003) 1 SCR 537. Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Ors. AIR 2003 SC 3093, in National Insurance Co. Ltd. v. Baljit Kaur and Ors. AIR 2004 SC 1340 and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. (2005) 12 SCC 243, the view in Asha Rani's case (supra) was reiterated."

16. Thus, it is clear that under the old Act of 1939, there stood no liability of the insurer to compensate the gratuitous passenger by the Insurance Company as in the case in hand the accident is of the year 1987 and the claim petition was filed under the old Act, the Tribunal rightly recorded finding that according to insurance policy, the insurer was not liable to pay compensation and it was the owner of the vehicle who was liable to pay compensation in case of death or bodily injury.

17. The argument raised by the appellant's counsel that neither the claimant nor the Insurance Company had led any evidence to prove that owner had directed to carry passenger in truck holds no ground as the Tribunal had recorded categorical finding considering the statement made by the driver of the truck that he was carrying passengers in the goods vehicle. The statement of driver is sufficient to hold that passenger was being carried in goods vehicle with the consent of the owner of the vehicle.

18. In the present case, as the deceased Babu Ram succumbed to injuries after the accident took place, the Tribunal rightly directed the appellant/owner of the vehicle to pay compensation. No case for interference is made out.

19. The appeal fails and is hereby dismissed.

20. The appellant had deposited Rs.15,000/- at the time of admission of the appeal, he is directed to deposit balance amount, as awarded by the Tribunal within a period of one month along with interest awarded by the Tribunal.

21. No order as to costs.

Order Date :- 6.8.2022

Kushal