Accident claim - sec. 147 - Gratuitous passenger not included except goods owner and his authorised agent in good carrier and as such the question of directing insurance company to pay and recover compensation does not arise since the satpal singh case was overruled.- Their lordships of High court dismissed the appeal and confirmed the lower court order against the owner of the vehicle only =
Whether the Gratuitous passenger is entitled for compensation against insurance company ?
In New India Assurance Company Limited vs. Asha Rani and others (1 Supra)
(decided on 03.12.2002), the Supreme Court had an occasion to consider the
correctness of its earlier decision rendered in Satpal Singh's case (7 Supra).
In this decision, it was held that the judgment in Satpal Singh's case (7 Supra)
was not correct and accordingly overruled. A number of reasons were quoted to
come to the said conclusion. Precisely, in this decision the judgment of the
Satpal Singh's case (7 Supra) was found fault on the ground that the said
judgment went on a wrong premise that the phrase "any person" used in Section
147(1)(b)(i) of Motor Vehicles Act includes gratuitous passengers also but that
is not so and the meaning of the words "any person" must be attributed to "a
third party".
Thus the decision in Satpal Singh's case (7 Supra) was overruled.
d) Subsequently, in Oriental Insurance Company Limited vs. Devireddy Konda
Reddy and others8 (decided on 24.01.2003), the Supreme Court again considered
the same issue.
Relying on Asha Rani's case (1 Supra), the Supreme Court
reiterated that the provisions of Motor Vehicles Act, 1988 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.
e) The next in the series is the decision in Baljit Kaur's case (decided on
06.01.2004). In that case the Supreme Court was considering the question as to
whether an insurance policy issued in respect of goods vehicle would cover
gratuitous passengers in the light of Section 147 of M.V. Act (Amendment Act
1994 w.e.f. 14.11.1994).
Brief facts of the case are that the victim who was
returning in a truck from a marriage ceremony on 19.02.1999 died as a result of
rash and negligent driving by the driver of the truck. The crime vehicle no
doubt was insured with insurance company. The Claims Tribunal relying on
Satpal Singh's case (7 Supra) fastened liability on insurance company despite
its protest that the deceased was a gratuitous passenger in a goods vehicle and
it had no liability. The High Court upheld the verdict of Tribunal. The matter
went up to Supreme Court. It was brought to the notice of the respondents/
claimants about overruling of Satpal Singh's case (7 Supra) subsequently in Asha
Rani's case (1 Supra) which was followed in Devireddy Kondareddy's case (8
Supra). However their argument was that those two cases were decided with
respect to the position prevailing prior to the amendment of Section 147 of
M.V.Act (Amendment Act, 1994) and as such the effect of Legislative Amendment in
1994 was not in question in the above cases. Whereas the accident in their case
(Baljit Kaur's case) was occurred subsequent to the Amendment of M.V. Act in
1994 and so the liability of insurance company has to be decided afresh in terms
of the Amendment Act, 1994. Thus the Supreme Court again considered the
liability of insurance company in respect of a gratuitous passenger in a goods
vehicle in terms of Amended Act in 1994.
It was held thus:
"20. 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.
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."
f) So the Supreme Court observed that despite the amendment of M.V. Act w.e.f
14.11.1994, the position of gratuitous passengers with reference to a goods
vehicle has not been changed and insurance company is not liable to bear their
responsibility and owner alone shall be liable.
It may be noted that apart from
the above observation the Supreme Court made another observation also directing
insurance company to pay and recover the compensation. About the applicability
of the said observation to the instant appeal will be discussed in the point
no.2 infra.
g) The ratio in Baljit Kaur's case (2 Supra) was followed subsequently in the
cases of National Insurance Company Limited vs. Bommithi Subbhayamma and others9
and National Insurance Company Limited vs. Prema Devi and others10 and held that
insurance company was not responsible in respect of the gratuitous passengers.
h) So as can be seen above, the Supreme Court has consistently reinforced the
law and held that the liability of a gratuitous/unauthorized passenger in a
goods vehicle will not be covered under Section 147 of M.V. Act either prior or
subsequent to its amendment w.e.f 1994.
12) So point No.1 is concerned, deceased was only a gratuitous passenger with
reference to crime vehicle and his risk is not covered under the terms of the
policy.
Whether as per the Baljit Kaur's case ,the insurance company may be
directed to pay compensation and recover from the insured in case of Gratuitous passager too?
In my considered view, this observation made on equitable grounds applies
only to limited cases i.e, those cases where, basing on Satpal Singh's case (7
Supra) which was by then a law, if compensation was granted to a gratuitous
passenger in a goods vehicle against insurance company and the appeal carried
out by the insurance company is allowed basing on Asha Rani's case (1 Supra), in
such circumstances though insurance company is exonerated by virtue of Asha
Rani's case (1 Supra), still it can be directed to pay compensation at first and
recover the same from the owner/insured. Except to those limited cases, pay
and recover ordered in Baljit Kaur's case (2 Supra) will not apply to other
cases, muchless to the cases where a Tribunal ignoring Asha Rani's case (1
Supra) fastened liability on insurance company basing on Satpal Singh's case (7
Supra). Since in the instant case by the date of award passed by the Tribunal,
Asha Rani's decision (1 Supra) was already given and the Tribunal did not rely
on Satpal Singh's decision (7 Supra), the question of directing insurance
company to pay and recover compensation does not arise. Hence the contention of
appellant is negatived.
In view of the above discussion, I find no merits in the appeal and
accordingly, the MACMA is dismissed by confirming the award dated 31.03.2004 in
M.V.O.P 299 of 1999 passed by the Tribunal. No order as to costs.
2014 (March. Part ) judis.nic.in/judis_andhra/filename=10959
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A No.406 of 2009
03-03-2014
Suguna and others..... Appellants
T. Jayaraman and another.... Respondents
Counsel for Appellants: Sri S.V. Muni Reddy
Counsel for Respondent No.2: Sri V. Sambasiva Rao
<Gist:
>Head Note:
?Cases referred:
1) 2002 (8) Supreme 594
2) AIR 2004 SC 1340 = 2004 (2) SCC 1
3) 2011 (4) ALD 778 (DB)
4) 2009 ACJ 1298 = AIR 2009 SC 3104
5) 2013 ACJ 1403
6) 2001 (1) ALT 495 (DB)
7) AIR 2000 Supreme Court 235 (1)
8) 2003 ACJ 468 = AIR 2003 SC 1009
9) 2005 (12) SCC 243
10) 2008 ACJ 1149 = (2008) 5 SCC 403
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.406 of 2009
JUDGMENT:
Aggrieved by the award dated 31.03.2004 in M.V.O.P.No.299 of 1999 passed
by the Chairman, M.A.C.T-cum-District Judge, Chittoor (for short 'the
Tribunal'), the claimants preferred the instant appeal.
2) The appellants 1 to 3 herein are the claimants 1 to 3 in the O.P and
respondents 1 and 2 herein are respondents 1 and 2 in the O.P.
3) The factual matrix of the case is thus:
a) The 1st claimant is the wife and claimants 2 and 3 are the minor sons of the
deceased - K. Rajendra Reddy and they are residents of Thupalle Village in
Chittoor District. Their case is that on the night of 18.10.1997, the deceased
loaded five Urea bags in the lorry bearing No.AP 26 T 549 and boarded the lorry
at Chittoor to go to his village Thupalle, after getting down at M.Bandapalle.
There were some other passengers traveling in the lorry. On the way when the
lorry reached Mahankalamma Temple near M. Bandapalle, the driver drove the lorry
in a rash and negligent manner and swerved it to the left side of the road and
thereby lorry overturned and fell hitting against the boulders. As a result,
the cabin was completely damaged and the persons in the cabin i.e, deceased and
one Venkatesu received grievous injuries and died on the spot. It is averred
that due to the death of deceased, the claimants who are his dependants lost
their bread-earner. It is further averred that the accident occurred due to the
fault of the lorry driver. On these pleas, the claimants filed M.V.O.P.No.299
of 1999 against respondents 1 and 2 who are the owner and insurer of the
offending lorry and claimed Rs.3,00,000/- as compensation under different heads
mentioned in the O.P.
b) First respondent remained ex parte.
c) The second respondent/Insurance Company filed counter and opposed the claim
inter alia contending that the driver carried several unauthorized passengers
including the deceased and the terms and conditions of the insurance policy do
not cover the risk of such persons. On this main ground, the insurance company
disowned its liability.
d) During trial, PWs.1 and 2 are examined and Exs.A.1 to A.4 were marked on
behalf of claimants. Policy copy filed by the 2nd respondent was marked as
Ex.B.1.
e) A perusal of the award would show that basing on the evidence of PW.2 - eye
witness coupled with the documentary evidence such as Ex.A.1 - FIR, Ex.A.3 -
M.V. Inspector's report and Ex.A.4 - C.C of judgment in C.C.No.77 of 1998 on the
file of IV Additional Judicial First Class Magistrate, Chittoor, the Tribunal
held that the lorry driver was responsible for the accident.
f) Then quantum of compensation is concerned, the Tribunal awarded Rs.1,85,000/-
with proportionate costs and simple interest at 9% p.a.
g) So far as liability is concerned, the Tribunal agreed with the contention of
insurance company to the effect that the deceased and others traveled as
unauthorized passengers in the offending vehicle which was already carrying
Aluminum sheets and Ex.B.1 - policy do not cover the risk of such persons. In
this regard, the Tribunal referred the decisions of Hon'ble Apex Court rendered
in the cases of 1) New India Assurance Co. Ltd. vs. Asha Rani and others1 and 2)
National Insurance Co. Ltd. vs. Baljit Kaur & others2 and by following the ratio
in the latter decision, held that the risk of gratuitous passengers in a goods
vehicle will not be covered by the policies issued in terms of Section 147 of
the Amended Act of 1994. Accordingly, the Tribunal held that the 2nd
respondent/insurance company is not liable to answer the claim of the claimants
and the 1st respondent/ owner alone is liable to pay compensation.
Hence, the appeal by the claimants.
4) Heard arguments of Sri S.V. Muni Reddy, learned counsel for
appellants/claimants and Sri V. Sambasiva Rao, learned counsel for respondent
No.2. Case against respondent No.1 was dismissed for default on 15.12.2008.
5 a) Learned counsel for appellants firstly argued that the Tribunal grossly
erred in holding that the deceased was only a gratuitous passenger travelled in
the ill-fated lorry. He submitted that in spite of cogent evidence that the
deceased travelled with urea bags by paying charges to the lorry driver and thus
the owner of goods, the Tribunal did not consider the same in right perspective
and on the other hand, held him as a gratuitous passenger and further held as if
the 2nd respondent/insurance company was not liable to answer the claim of the
claimants since the policy did not cover the risk of gratuitous/unauthorized
passengers in a goods vehicle. He submitted that the Tribunal misapplied the law
on gratuitous passengers to the deceased who in fact traveled as owner of the
goods but not as a gratuitous passenger.
Learned counsel alternatively argued that even if it is ultimately
concluded that the claimants failed to prove that the deceased traveled in the
vehicle as owner of the goods but not as gratuitous passenger, nonetheless,
following the ratio laid down in Baljit Kaur's case (2 Supra), the Tribunal
ought to have directed the 2nd respondent/insurance company to pay compensation
at the first instance and then recover the same from the 1st respondent/owner of
the vehicle. In this regard, he relied upon the decision reported in United
India Insurance Co. Ltd vs. N. Appi Reddy3 and submitted that in similar
circumstances, relying on Baljit Kaur's case (2 Supra) our High Court ordered
the Insurance Company to pay and recover the compensation amount. He thus
prayed that liability may be fastened on the Insurance Company treating the
deceased as owner of the goods and if not, it may be directed to pay and recover
from the insured.
b) The second argument of learned counsel for appellant is that the
compensation granted by the Tribunal is grossly low and inadequate. Expatiating
it, he submitted that the Tribunal only took Rs.15,000/- p.a as the income of
the deceased. As per the latest judgment reported in Smt. Sarla Verma and
others vs. Delhi Transport Corporation and another4, future earning prospects of
the deceased should also be added to his income and compensation has to be
computed accordingly. He further submitted that compensation for funeral
expenses, loss of consortium and loss of estate has to be suitably enhanced
inconsonance with the direction of Hon'ble Supreme Court in Rajesh and others
vs. Rajbir Singh and others5 case. He thus prayed to enhance the compensation.
c) Thirdly, learned counsel submitted that the dismissal of appeal against
1st respondent/owner of the vehicle will have no impact since he remained ex
parte before the Tribunal and suffered award. So the appeal can be disposed of
in his absence. In this regard, he relied upon the decision reported in Meka
Chakra Rao vs. Yelubandi Babu Rao @ Reddemma and others6.
6 a) Per contra, learned counsel for 2nd respondent/insurance company submitted
that there was absolutely no cogent and reliable evidence to hold that the
deceased traveled in the capacity of owner of goods and the FIR, charge sheet
and other documents do not speak so and the theory of traveling with urea bags
was invented for the first time during evidence and hence considering the
evidence on record, the Tribunal rightly held that the deceased was only a
gratuitous passenger with reference to the crime vehicle. Learned counsel
further submitted that the terms of Ex.B.1- policy are clear that the policy do
not cover the risk of a gratuitous passenger like deceased other than owner of
the goods. Therefore, he emphasized, the Tribunal was perfectly right in
exonerating the insurance company from its liability and there is no need to
interfere with the award.
b) Regarding the alternative argument of appellant, he submitted that when
there is no liability for insurance company, the question of paying the
compensation by it at first and recovering later does not arise and the
principle enshrined in Baljit Kaur's case (2 Supra) cannot be interpreted in
that fashion. Thus he submitted that when the argument of insurance company on
its lack of liability is upheld, it may not be alternatively directed to pay and
recover the compensation. Secondly, he argued that the compensation granted
under different heads was just and reasonable and there is no need to enhance
the same particularly in the absence of 1st respondent/owner.
He thus prayed to dismiss the appeal.
7) In the light of the above rival arguments, the points for determination in
this appeal are:
1) Whether the deceased travelled in the ill-fated lorry in the capacity of
owner of goods and if not whether his risk was covered under the terms of
Ex.B.1- policy?
2) If Ex.B.1- policy does not cover the risk of deceased, whether alternatively
insurance company can be directed to pay compensation and then recover from the
insured?
3) Whether compensation awarded by the Tribunal is just and reasonable and needs
enhancement in the absence of 1st respondent/ owner?
8) POINT No.1: Regarding this point, a perusal of Ex.A.1- FIR which was lodged
by D. Markondaiah, one of the victims of the accident would not give any
reference about the deceased travelling with urea bags in the capacity of owner
of the goods. In Ex.A.4 - C.C of judgment also there was no mention about the
deceased carrying urea bags in the lorry. On the other hand in Ex.A.1- FIR it
was mentioned as if the lorry was loaded with Aluminum plates which stuck to the
passengers when it overturned. That being so, for the first time it is pleaded
in the O.P to the effect that the deceased travelled with five urea bags in the
lorry and dubbed him as owner of the goods. Hence, it is to be seen whether
under law the deceased can claim to have travelled qua owner of the goods.
9) The accident in this case took place on 18.10.1997 i.e. subsequent to the
introduction of amendment to Motor Vehicles Act, 1988 w.e.f. 14.11.1994.
Section 147 of the M.V. Act speaks about the requirements of policies and limits
of liability. Sub-section (1) describes the class of persons whose liability is
covered under the terms of policy issued under Section 147, whereas sub-section
(2) speaks about the extent of the liability. Thus the amended Section 147 (1)
(b) of the Motor Vehicles Act, reads thus:
"(b) insures the person or classes of persons specified in the policy to the
extent specified in the 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) 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) It is in the context of above provision that the claimants contend that
the deceased travelled as owner of the goods to bring him under the umbrella of
policy. However, the evidence would show that the lorry was originally laden
with Aluminum plates and there was not even an insinuating whisker in the
evidence except the harping of the claimants that the deceased travelled as
owner of the goods. Therefore, the Tribunal has rightly held that the deceased
travelled only as a passenger but not as owner of the goods. Then a perusal of
Ex.B.1- policy would show that different fares were collected to give coverage
to the liability of - public risk (third party); non-fare paying passenger
(owner of the goods); increased third party property damage; legal liability of
persons employed in connection with the operation and/or loading or unloading of
motor vehicles etc. Thus it is clear that no coverage was extended to the risk
of either gratuitous or fare paid passengers like deceased under Ex.B.1- policy.
Added to it, regarding the conditions of usage of vehicle to cover the policy,
it is mentioned that the vehicle can be used except for carrying passengers in
the vehicle, except employees (other than driver) not exceeding six in number
coming under the purview of Workmens' Compensation Act, 1923. Thus, it is clear
that the deceased had not travelled in any of the permissible capacities.
11 a) The precedential law on gratuitous/fare paying passengers in a goods
vehicle is no more res integra. In New India Assurance Company vs. Satpal Singh
and others7 (decided on 02.12.1999), the facts were that a 10 year old girl
while traveling in a truck died on 11.03.1990 when the truck met with accident.
The Insurance Company disowned its liability on the contention that the deceased
was a gratuitous passenger. It was in that context declining its plea, Hon'ble
Supreme Court held thus:
"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
that the vehicle is of any type or class. Hence the decisions rendered under
the old Act vis--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."
b) Thus in the above decision, the Supreme Court with reference to Section
147 of Motor Vehicles Act, 1988 (as it stood before amendment w.e.f 14.11.1994)
held that the risk of a gratuitous passenger in a goods vehicle was covered.
However it must be said that the above decision was overruled subsequently.
c) In New India Assurance Company Limited vs. Asha Rani and others (1 Supra)
(decided on 03.12.2002), the Supreme Court had an occasion to consider the
correctness of its earlier decision rendered in Satpal Singh's case (7 Supra).
In this decision, it was held that the judgment in Satpal Singh's case (7 Supra)
was not correct and accordingly overruled. A number of reasons were quoted to
come to the said conclusion. Precisely, in this decision the judgment of the
Satpal Singh's case (7 Supra) was found fault on the ground that the said
judgment went on a wrong premise that the phrase "any person" used in Section
147(1)(b)(i) of Motor Vehicles Act includes gratuitous passengers also but that
is not so and the meaning of the words "any person" must be attributed to "a
third party". Thus the decision in Satpal Singh's case (7 Supra) was overruled.
d) Subsequently, in Oriental Insurance Company Limited vs. Devireddy Konda
Reddy and others8 (decided on 24.01.2003), the Supreme Court again considered
the same issue. Relying on Asha Rani's case (1 Supra), the Supreme Court
reiterated that the provisions of Motor Vehicles Act, 1988 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.
e) The next in the series is the decision in Baljit Kaur's case (decided on
06.01.2004). In that case the Supreme Court was considering the question as to
whether an insurance policy issued in respect of goods vehicle would cover
gratuitous passengers in the light of Section 147 of M.V. Act (Amendment Act
1994 w.e.f. 14.11.1994). Brief facts of the case are that the victim who was
returning in a truck from a marriage ceremony on 19.02.1999 died as a result of
rash and negligent driving by the driver of the truck. The crime vehicle no
doubt was insured with insurance company. The Claims Tribunal relying on
Satpal Singh's case (7 Supra) fastened liability on insurance company despite
its protest that the deceased was a gratuitous passenger in a goods vehicle and
it had no liability. The High Court upheld the verdict of Tribunal. The matter
went up to Supreme Court. It was brought to the notice of the respondents/
claimants about overruling of Satpal Singh's case (7 Supra) subsequently in Asha
Rani's case (1 Supra) which was followed in Devireddy Kondareddy's case (8
Supra). However their argument was that those two cases were decided with
respect to the position prevailing prior to the amendment of Section 147 of
M.V.Act (Amendment Act, 1994) and as such the effect of Legislative Amendment in
1994 was not in question in the above cases. Whereas the accident in their case
(Baljit Kaur's case) was occurred subsequent to the Amendment of M.V. Act in
1994 and so the liability of insurance company has to be decided afresh in terms
of the Amendment Act, 1994. Thus the Supreme Court again considered the
liability of insurance company in respect of a gratuitous passenger in a goods
vehicle in terms of Amended Act in 1994. It was held thus:
"20. 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.
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."
f) So the Supreme Court observed that despite the amendment of M.V. Act w.e.f
14.11.1994, the position of gratuitous passengers with reference to a goods
vehicle has not been changed and insurance company is not liable to bear their
responsibility and owner alone shall be liable. It may be noted that apart from
the above observation the Supreme Court made another observation also directing
insurance company to pay and recover the compensation. About the applicability
of the said observation to the instant appeal will be discussed in the point
no.2 infra.
g) The ratio in Baljit Kaur's case (2 Supra) was followed subsequently in the
cases of National Insurance Company Limited vs. Bommithi Subbhayamma and others9
and National Insurance Company Limited vs. Prema Devi and others10 and held that
insurance company was not responsible in respect of the gratuitous passengers.
h) So as can be seen above, the Supreme Court has consistently reinforced the
law and held that the liability of a gratuitous/unauthorized passenger in a
goods vehicle will not be covered under Section 147 of M.V. Act either prior or
subsequent to its amendment w.e.f 1994.
12) So point No.1 is concerned, deceased was only a gratuitous passenger with
reference to crime vehicle and his risk is not covered under the terms of the
policy.
13) POINT No.2: This point is concerned, the alternative plea of appellant is
that if the deceased is held only as a gratuitous passenger, still basing on the
observation in Baljit Kaur's case(2 Supra), the insurance company may be
directed to pay compensation and recover from the insured. Hence the relevant
observation of Supreme Court in Baljit Kaur's case (2 Supra) has to be perused.
While observing that the risk of a gratuitous passenger in a goods vehicle will
not be covered under the terms of the policy, the Supreme Court made another
observation as follows:
"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."
14) In my considered view, this observation made on equitable grounds applies
only to limited cases i.e, those cases where, basing on Satpal Singh's case (7
Supra) which was by then a law, if compensation was granted to a gratuitous
passenger in a goods vehicle against insurance company and the appeal carried
out by the insurance company is allowed basing on Asha Rani's case (1 Supra), in
such circumstances though insurance company is exonerated by virtue of Asha
Rani's case (1 Supra), still it can be directed to pay compensation at first and
recover the same from the owner/insured. Except to those limited cases, pay
and recover ordered in Baljit Kaur's case (2 Supra) will not apply to other
cases, muchless to the cases where a Tribunal ignoring Asha Rani's case (1
Supra) fastened liability on insurance company basing on Satpal Singh's case (7
Supra). Since in the instant case by the date of award passed by the Tribunal,
Asha Rani's decision (1 Supra) was already given and the Tribunal did not rely
on Satpal Singh's decision (7 Supra), the question of directing insurance
company to pay and recover compensation does not arise. Hence the contention of
appellant is negatived.
15) POINT No.3: This point is concerned, the contention of the appellant is
that the Tribunal erred in taking the earnings of the deceased as Rs.15,000/-
per annum and it ought to have added future prospects to his earnings as per
Sarla Verma's case (4 supra). I am unable to accept this contention. The
Tribunal for lack of evidence regarding earnings of the deceased had taken the
annual income of the deceased as Rs.15,000/- per annum following the second
schedule of MV Act and accordingly computed compensation for loss of dependency.
As per Sarla Verma's case (4 Supra) taking future prospects into consideration
arises in case of salaried persons. In that decision it was made clear that
whether the deceased was a self-employed or was a fixed salary, the Courts shall
take only actual income at the time of death. So, the question of adding future
prospects to the notional income of the deceased does not arise. I find no
irregularity in respect of other items of compensation fixed by the Tribunal
also.
16) In view of the above discussion, I find no merits in the appeal and
accordingly, the MACMA is dismissed by confirming the award dated 31.03.2004 in
M.V.O.P 299 of 1999 passed by the Tribunal. No order as to costs.
As a sequel, miscellaneous applications if any pending in this appeal, shall
stand closed.
__________________________
U. DURGA PRASAD RAO, J
Date: 03.03.2014
Whether the Gratuitous passenger is entitled for compensation against insurance company ?
In New India Assurance Company Limited vs. Asha Rani and others (1 Supra)
(decided on 03.12.2002), the Supreme Court had an occasion to consider the
correctness of its earlier decision rendered in Satpal Singh's case (7 Supra).
In this decision, it was held that the judgment in Satpal Singh's case (7 Supra)
was not correct and accordingly overruled. A number of reasons were quoted to
come to the said conclusion. Precisely, in this decision the judgment of the
Satpal Singh's case (7 Supra) was found fault on the ground that the said
judgment went on a wrong premise that the phrase "any person" used in Section
147(1)(b)(i) of Motor Vehicles Act includes gratuitous passengers also but that
is not so and the meaning of the words "any person" must be attributed to "a
third party".
Thus the decision in Satpal Singh's case (7 Supra) was overruled.
d) Subsequently, in Oriental Insurance Company Limited vs. Devireddy Konda
Reddy and others8 (decided on 24.01.2003), the Supreme Court again considered
the same issue.
Relying on Asha Rani's case (1 Supra), the Supreme Court
reiterated that the provisions of Motor Vehicles Act, 1988 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.
e) The next in the series is the decision in Baljit Kaur's case (decided on
06.01.2004). In that case the Supreme Court was considering the question as to
whether an insurance policy issued in respect of goods vehicle would cover
gratuitous passengers in the light of Section 147 of M.V. Act (Amendment Act
1994 w.e.f. 14.11.1994).
Brief facts of the case are that the victim who was
returning in a truck from a marriage ceremony on 19.02.1999 died as a result of
rash and negligent driving by the driver of the truck. The crime vehicle no
doubt was insured with insurance company. The Claims Tribunal relying on
Satpal Singh's case (7 Supra) fastened liability on insurance company despite
its protest that the deceased was a gratuitous passenger in a goods vehicle and
it had no liability. The High Court upheld the verdict of Tribunal. The matter
went up to Supreme Court. It was brought to the notice of the respondents/
claimants about overruling of Satpal Singh's case (7 Supra) subsequently in Asha
Rani's case (1 Supra) which was followed in Devireddy Kondareddy's case (8
Supra). However their argument was that those two cases were decided with
respect to the position prevailing prior to the amendment of Section 147 of
M.V.Act (Amendment Act, 1994) and as such the effect of Legislative Amendment in
1994 was not in question in the above cases. Whereas the accident in their case
(Baljit Kaur's case) was occurred subsequent to the Amendment of M.V. Act in
1994 and so the liability of insurance company has to be decided afresh in terms
of the Amendment Act, 1994. Thus the Supreme Court again considered the
liability of insurance company in respect of a gratuitous passenger in a goods
vehicle in terms of Amended Act in 1994.
It was held thus:
"20. 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.
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."
f) So the Supreme Court observed that despite the amendment of M.V. Act w.e.f
14.11.1994, the position of gratuitous passengers with reference to a goods
vehicle has not been changed and insurance company is not liable to bear their
responsibility and owner alone shall be liable.
It may be noted that apart from
the above observation the Supreme Court made another observation also directing
insurance company to pay and recover the compensation. About the applicability
of the said observation to the instant appeal will be discussed in the point
no.2 infra.
g) The ratio in Baljit Kaur's case (2 Supra) was followed subsequently in the
cases of National Insurance Company Limited vs. Bommithi Subbhayamma and others9
and National Insurance Company Limited vs. Prema Devi and others10 and held that
insurance company was not responsible in respect of the gratuitous passengers.
h) So as can be seen above, the Supreme Court has consistently reinforced the
law and held that the liability of a gratuitous/unauthorized passenger in a
goods vehicle will not be covered under Section 147 of M.V. Act either prior or
subsequent to its amendment w.e.f 1994.
12) So point No.1 is concerned, deceased was only a gratuitous passenger with
reference to crime vehicle and his risk is not covered under the terms of the
policy.
Whether as per the Baljit Kaur's case ,the insurance company may be
directed to pay compensation and recover from the insured in case of Gratuitous passager too?
In my considered view, this observation made on equitable grounds applies
only to limited cases i.e, those cases where, basing on Satpal Singh's case (7
Supra) which was by then a law, if compensation was granted to a gratuitous
passenger in a goods vehicle against insurance company and the appeal carried
out by the insurance company is allowed basing on Asha Rani's case (1 Supra), in
such circumstances though insurance company is exonerated by virtue of Asha
Rani's case (1 Supra), still it can be directed to pay compensation at first and
recover the same from the owner/insured. Except to those limited cases, pay
and recover ordered in Baljit Kaur's case (2 Supra) will not apply to other
cases, muchless to the cases where a Tribunal ignoring Asha Rani's case (1
Supra) fastened liability on insurance company basing on Satpal Singh's case (7
Supra). Since in the instant case by the date of award passed by the Tribunal,
Asha Rani's decision (1 Supra) was already given and the Tribunal did not rely
on Satpal Singh's decision (7 Supra), the question of directing insurance
company to pay and recover compensation does not arise. Hence the contention of
appellant is negatived.
In view of the above discussion, I find no merits in the appeal and
accordingly, the MACMA is dismissed by confirming the award dated 31.03.2004 in
M.V.O.P 299 of 1999 passed by the Tribunal. No order as to costs.
2014 (March. Part ) judis.nic.in/judis_andhra/filename=10959
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A No.406 of 2009
03-03-2014
Suguna and others..... Appellants
T. Jayaraman and another.... Respondents
Counsel for Appellants: Sri S.V. Muni Reddy
Counsel for Respondent No.2: Sri V. Sambasiva Rao
<Gist:
>Head Note:
?Cases referred:
1) 2002 (8) Supreme 594
2) AIR 2004 SC 1340 = 2004 (2) SCC 1
3) 2011 (4) ALD 778 (DB)
4) 2009 ACJ 1298 = AIR 2009 SC 3104
5) 2013 ACJ 1403
6) 2001 (1) ALT 495 (DB)
7) AIR 2000 Supreme Court 235 (1)
8) 2003 ACJ 468 = AIR 2003 SC 1009
9) 2005 (12) SCC 243
10) 2008 ACJ 1149 = (2008) 5 SCC 403
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.406 of 2009
JUDGMENT:
Aggrieved by the award dated 31.03.2004 in M.V.O.P.No.299 of 1999 passed
by the Chairman, M.A.C.T-cum-District Judge, Chittoor (for short 'the
Tribunal'), the claimants preferred the instant appeal.
2) The appellants 1 to 3 herein are the claimants 1 to 3 in the O.P and
respondents 1 and 2 herein are respondents 1 and 2 in the O.P.
3) The factual matrix of the case is thus:
a) The 1st claimant is the wife and claimants 2 and 3 are the minor sons of the
deceased - K. Rajendra Reddy and they are residents of Thupalle Village in
Chittoor District. Their case is that on the night of 18.10.1997, the deceased
loaded five Urea bags in the lorry bearing No.AP 26 T 549 and boarded the lorry
at Chittoor to go to his village Thupalle, after getting down at M.Bandapalle.
There were some other passengers traveling in the lorry. On the way when the
lorry reached Mahankalamma Temple near M. Bandapalle, the driver drove the lorry
in a rash and negligent manner and swerved it to the left side of the road and
thereby lorry overturned and fell hitting against the boulders. As a result,
the cabin was completely damaged and the persons in the cabin i.e, deceased and
one Venkatesu received grievous injuries and died on the spot. It is averred
that due to the death of deceased, the claimants who are his dependants lost
their bread-earner. It is further averred that the accident occurred due to the
fault of the lorry driver. On these pleas, the claimants filed M.V.O.P.No.299
of 1999 against respondents 1 and 2 who are the owner and insurer of the
offending lorry and claimed Rs.3,00,000/- as compensation under different heads
mentioned in the O.P.
b) First respondent remained ex parte.
c) The second respondent/Insurance Company filed counter and opposed the claim
inter alia contending that the driver carried several unauthorized passengers
including the deceased and the terms and conditions of the insurance policy do
not cover the risk of such persons. On this main ground, the insurance company
disowned its liability.
d) During trial, PWs.1 and 2 are examined and Exs.A.1 to A.4 were marked on
behalf of claimants. Policy copy filed by the 2nd respondent was marked as
Ex.B.1.
e) A perusal of the award would show that basing on the evidence of PW.2 - eye
witness coupled with the documentary evidence such as Ex.A.1 - FIR, Ex.A.3 -
M.V. Inspector's report and Ex.A.4 - C.C of judgment in C.C.No.77 of 1998 on the
file of IV Additional Judicial First Class Magistrate, Chittoor, the Tribunal
held that the lorry driver was responsible for the accident.
f) Then quantum of compensation is concerned, the Tribunal awarded Rs.1,85,000/-
with proportionate costs and simple interest at 9% p.a.
g) So far as liability is concerned, the Tribunal agreed with the contention of
insurance company to the effect that the deceased and others traveled as
unauthorized passengers in the offending vehicle which was already carrying
Aluminum sheets and Ex.B.1 - policy do not cover the risk of such persons. In
this regard, the Tribunal referred the decisions of Hon'ble Apex Court rendered
in the cases of 1) New India Assurance Co. Ltd. vs. Asha Rani and others1 and 2)
National Insurance Co. Ltd. vs. Baljit Kaur & others2 and by following the ratio
in the latter decision, held that the risk of gratuitous passengers in a goods
vehicle will not be covered by the policies issued in terms of Section 147 of
the Amended Act of 1994. Accordingly, the Tribunal held that the 2nd
respondent/insurance company is not liable to answer the claim of the claimants
and the 1st respondent/ owner alone is liable to pay compensation.
Hence, the appeal by the claimants.
4) Heard arguments of Sri S.V. Muni Reddy, learned counsel for
appellants/claimants and Sri V. Sambasiva Rao, learned counsel for respondent
No.2. Case against respondent No.1 was dismissed for default on 15.12.2008.
5 a) Learned counsel for appellants firstly argued that the Tribunal grossly
erred in holding that the deceased was only a gratuitous passenger travelled in
the ill-fated lorry. He submitted that in spite of cogent evidence that the
deceased travelled with urea bags by paying charges to the lorry driver and thus
the owner of goods, the Tribunal did not consider the same in right perspective
and on the other hand, held him as a gratuitous passenger and further held as if
the 2nd respondent/insurance company was not liable to answer the claim of the
claimants since the policy did not cover the risk of gratuitous/unauthorized
passengers in a goods vehicle. He submitted that the Tribunal misapplied the law
on gratuitous passengers to the deceased who in fact traveled as owner of the
goods but not as a gratuitous passenger.
Learned counsel alternatively argued that even if it is ultimately
concluded that the claimants failed to prove that the deceased traveled in the
vehicle as owner of the goods but not as gratuitous passenger, nonetheless,
following the ratio laid down in Baljit Kaur's case (2 Supra), the Tribunal
ought to have directed the 2nd respondent/insurance company to pay compensation
at the first instance and then recover the same from the 1st respondent/owner of
the vehicle. In this regard, he relied upon the decision reported in United
India Insurance Co. Ltd vs. N. Appi Reddy3 and submitted that in similar
circumstances, relying on Baljit Kaur's case (2 Supra) our High Court ordered
the Insurance Company to pay and recover the compensation amount. He thus
prayed that liability may be fastened on the Insurance Company treating the
deceased as owner of the goods and if not, it may be directed to pay and recover
from the insured.
b) The second argument of learned counsel for appellant is that the
compensation granted by the Tribunal is grossly low and inadequate. Expatiating
it, he submitted that the Tribunal only took Rs.15,000/- p.a as the income of
the deceased. As per the latest judgment reported in Smt. Sarla Verma and
others vs. Delhi Transport Corporation and another4, future earning prospects of
the deceased should also be added to his income and compensation has to be
computed accordingly. He further submitted that compensation for funeral
expenses, loss of consortium and loss of estate has to be suitably enhanced
inconsonance with the direction of Hon'ble Supreme Court in Rajesh and others
vs. Rajbir Singh and others5 case. He thus prayed to enhance the compensation.
c) Thirdly, learned counsel submitted that the dismissal of appeal against
1st respondent/owner of the vehicle will have no impact since he remained ex
parte before the Tribunal and suffered award. So the appeal can be disposed of
in his absence. In this regard, he relied upon the decision reported in Meka
Chakra Rao vs. Yelubandi Babu Rao @ Reddemma and others6.
6 a) Per contra, learned counsel for 2nd respondent/insurance company submitted
that there was absolutely no cogent and reliable evidence to hold that the
deceased traveled in the capacity of owner of goods and the FIR, charge sheet
and other documents do not speak so and the theory of traveling with urea bags
was invented for the first time during evidence and hence considering the
evidence on record, the Tribunal rightly held that the deceased was only a
gratuitous passenger with reference to the crime vehicle. Learned counsel
further submitted that the terms of Ex.B.1- policy are clear that the policy do
not cover the risk of a gratuitous passenger like deceased other than owner of
the goods. Therefore, he emphasized, the Tribunal was perfectly right in
exonerating the insurance company from its liability and there is no need to
interfere with the award.
b) Regarding the alternative argument of appellant, he submitted that when
there is no liability for insurance company, the question of paying the
compensation by it at first and recovering later does not arise and the
principle enshrined in Baljit Kaur's case (2 Supra) cannot be interpreted in
that fashion. Thus he submitted that when the argument of insurance company on
its lack of liability is upheld, it may not be alternatively directed to pay and
recover the compensation. Secondly, he argued that the compensation granted
under different heads was just and reasonable and there is no need to enhance
the same particularly in the absence of 1st respondent/owner.
He thus prayed to dismiss the appeal.
7) In the light of the above rival arguments, the points for determination in
this appeal are:
1) Whether the deceased travelled in the ill-fated lorry in the capacity of
owner of goods and if not whether his risk was covered under the terms of
Ex.B.1- policy?
2) If Ex.B.1- policy does not cover the risk of deceased, whether alternatively
insurance company can be directed to pay compensation and then recover from the
insured?
3) Whether compensation awarded by the Tribunal is just and reasonable and needs
enhancement in the absence of 1st respondent/ owner?
8) POINT No.1: Regarding this point, a perusal of Ex.A.1- FIR which was lodged
by D. Markondaiah, one of the victims of the accident would not give any
reference about the deceased travelling with urea bags in the capacity of owner
of the goods. In Ex.A.4 - C.C of judgment also there was no mention about the
deceased carrying urea bags in the lorry. On the other hand in Ex.A.1- FIR it
was mentioned as if the lorry was loaded with Aluminum plates which stuck to the
passengers when it overturned. That being so, for the first time it is pleaded
in the O.P to the effect that the deceased travelled with five urea bags in the
lorry and dubbed him as owner of the goods. Hence, it is to be seen whether
under law the deceased can claim to have travelled qua owner of the goods.
9) The accident in this case took place on 18.10.1997 i.e. subsequent to the
introduction of amendment to Motor Vehicles Act, 1988 w.e.f. 14.11.1994.
Section 147 of the M.V. Act speaks about the requirements of policies and limits
of liability. Sub-section (1) describes the class of persons whose liability is
covered under the terms of policy issued under Section 147, whereas sub-section
(2) speaks about the extent of the liability. Thus the amended Section 147 (1)
(b) of the Motor Vehicles Act, reads thus:
"(b) insures the person or classes of persons specified in the policy to the
extent specified in the 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) 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) It is in the context of above provision that the claimants contend that
the deceased travelled as owner of the goods to bring him under the umbrella of
policy. However, the evidence would show that the lorry was originally laden
with Aluminum plates and there was not even an insinuating whisker in the
evidence except the harping of the claimants that the deceased travelled as
owner of the goods. Therefore, the Tribunal has rightly held that the deceased
travelled only as a passenger but not as owner of the goods. Then a perusal of
Ex.B.1- policy would show that different fares were collected to give coverage
to the liability of - public risk (third party); non-fare paying passenger
(owner of the goods); increased third party property damage; legal liability of
persons employed in connection with the operation and/or loading or unloading of
motor vehicles etc. Thus it is clear that no coverage was extended to the risk
of either gratuitous or fare paid passengers like deceased under Ex.B.1- policy.
Added to it, regarding the conditions of usage of vehicle to cover the policy,
it is mentioned that the vehicle can be used except for carrying passengers in
the vehicle, except employees (other than driver) not exceeding six in number
coming under the purview of Workmens' Compensation Act, 1923. Thus, it is clear
that the deceased had not travelled in any of the permissible capacities.
11 a) The precedential law on gratuitous/fare paying passengers in a goods
vehicle is no more res integra. In New India Assurance Company vs. Satpal Singh
and others7 (decided on 02.12.1999), the facts were that a 10 year old girl
while traveling in a truck died on 11.03.1990 when the truck met with accident.
The Insurance Company disowned its liability on the contention that the deceased
was a gratuitous passenger. It was in that context declining its plea, Hon'ble
Supreme Court held thus:
"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
that the vehicle is of any type or class. Hence the decisions rendered under
the old Act vis--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."
b) Thus in the above decision, the Supreme Court with reference to Section
147 of Motor Vehicles Act, 1988 (as it stood before amendment w.e.f 14.11.1994)
held that the risk of a gratuitous passenger in a goods vehicle was covered.
However it must be said that the above decision was overruled subsequently.
c) In New India Assurance Company Limited vs. Asha Rani and others (1 Supra)
(decided on 03.12.2002), the Supreme Court had an occasion to consider the
correctness of its earlier decision rendered in Satpal Singh's case (7 Supra).
In this decision, it was held that the judgment in Satpal Singh's case (7 Supra)
was not correct and accordingly overruled. A number of reasons were quoted to
come to the said conclusion. Precisely, in this decision the judgment of the
Satpal Singh's case (7 Supra) was found fault on the ground that the said
judgment went on a wrong premise that the phrase "any person" used in Section
147(1)(b)(i) of Motor Vehicles Act includes gratuitous passengers also but that
is not so and the meaning of the words "any person" must be attributed to "a
third party". Thus the decision in Satpal Singh's case (7 Supra) was overruled.
d) Subsequently, in Oriental Insurance Company Limited vs. Devireddy Konda
Reddy and others8 (decided on 24.01.2003), the Supreme Court again considered
the same issue. Relying on Asha Rani's case (1 Supra), the Supreme Court
reiterated that the provisions of Motor Vehicles Act, 1988 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.
e) The next in the series is the decision in Baljit Kaur's case (decided on
06.01.2004). In that case the Supreme Court was considering the question as to
whether an insurance policy issued in respect of goods vehicle would cover
gratuitous passengers in the light of Section 147 of M.V. Act (Amendment Act
1994 w.e.f. 14.11.1994). Brief facts of the case are that the victim who was
returning in a truck from a marriage ceremony on 19.02.1999 died as a result of
rash and negligent driving by the driver of the truck. The crime vehicle no
doubt was insured with insurance company. The Claims Tribunal relying on
Satpal Singh's case (7 Supra) fastened liability on insurance company despite
its protest that the deceased was a gratuitous passenger in a goods vehicle and
it had no liability. The High Court upheld the verdict of Tribunal. The matter
went up to Supreme Court. It was brought to the notice of the respondents/
claimants about overruling of Satpal Singh's case (7 Supra) subsequently in Asha
Rani's case (1 Supra) which was followed in Devireddy Kondareddy's case (8
Supra). However their argument was that those two cases were decided with
respect to the position prevailing prior to the amendment of Section 147 of
M.V.Act (Amendment Act, 1994) and as such the effect of Legislative Amendment in
1994 was not in question in the above cases. Whereas the accident in their case
(Baljit Kaur's case) was occurred subsequent to the Amendment of M.V. Act in
1994 and so the liability of insurance company has to be decided afresh in terms
of the Amendment Act, 1994. Thus the Supreme Court again considered the
liability of insurance company in respect of a gratuitous passenger in a goods
vehicle in terms of Amended Act in 1994. It was held thus:
"20. 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.
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."
f) So the Supreme Court observed that despite the amendment of M.V. Act w.e.f
14.11.1994, the position of gratuitous passengers with reference to a goods
vehicle has not been changed and insurance company is not liable to bear their
responsibility and owner alone shall be liable. It may be noted that apart from
the above observation the Supreme Court made another observation also directing
insurance company to pay and recover the compensation. About the applicability
of the said observation to the instant appeal will be discussed in the point
no.2 infra.
g) The ratio in Baljit Kaur's case (2 Supra) was followed subsequently in the
cases of National Insurance Company Limited vs. Bommithi Subbhayamma and others9
and National Insurance Company Limited vs. Prema Devi and others10 and held that
insurance company was not responsible in respect of the gratuitous passengers.
h) So as can be seen above, the Supreme Court has consistently reinforced the
law and held that the liability of a gratuitous/unauthorized passenger in a
goods vehicle will not be covered under Section 147 of M.V. Act either prior or
subsequent to its amendment w.e.f 1994.
12) So point No.1 is concerned, deceased was only a gratuitous passenger with
reference to crime vehicle and his risk is not covered under the terms of the
policy.
13) POINT No.2: This point is concerned, the alternative plea of appellant is
that if the deceased is held only as a gratuitous passenger, still basing on the
observation in Baljit Kaur's case(2 Supra), the insurance company may be
directed to pay compensation and recover from the insured. Hence the relevant
observation of Supreme Court in Baljit Kaur's case (2 Supra) has to be perused.
While observing that the risk of a gratuitous passenger in a goods vehicle will
not be covered under the terms of the policy, the Supreme Court made another
observation as follows:
"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."
14) In my considered view, this observation made on equitable grounds applies
only to limited cases i.e, those cases where, basing on Satpal Singh's case (7
Supra) which was by then a law, if compensation was granted to a gratuitous
passenger in a goods vehicle against insurance company and the appeal carried
out by the insurance company is allowed basing on Asha Rani's case (1 Supra), in
such circumstances though insurance company is exonerated by virtue of Asha
Rani's case (1 Supra), still it can be directed to pay compensation at first and
recover the same from the owner/insured. Except to those limited cases, pay
and recover ordered in Baljit Kaur's case (2 Supra) will not apply to other
cases, muchless to the cases where a Tribunal ignoring Asha Rani's case (1
Supra) fastened liability on insurance company basing on Satpal Singh's case (7
Supra). Since in the instant case by the date of award passed by the Tribunal,
Asha Rani's decision (1 Supra) was already given and the Tribunal did not rely
on Satpal Singh's decision (7 Supra), the question of directing insurance
company to pay and recover compensation does not arise. Hence the contention of
appellant is negatived.
15) POINT No.3: This point is concerned, the contention of the appellant is
that the Tribunal erred in taking the earnings of the deceased as Rs.15,000/-
per annum and it ought to have added future prospects to his earnings as per
Sarla Verma's case (4 supra). I am unable to accept this contention. The
Tribunal for lack of evidence regarding earnings of the deceased had taken the
annual income of the deceased as Rs.15,000/- per annum following the second
schedule of MV Act and accordingly computed compensation for loss of dependency.
As per Sarla Verma's case (4 Supra) taking future prospects into consideration
arises in case of salaried persons. In that decision it was made clear that
whether the deceased was a self-employed or was a fixed salary, the Courts shall
take only actual income at the time of death. So, the question of adding future
prospects to the notional income of the deceased does not arise. I find no
irregularity in respect of other items of compensation fixed by the Tribunal
also.
16) In view of the above discussion, I find no merits in the appeal and
accordingly, the MACMA is dismissed by confirming the award dated 31.03.2004 in
M.V.O.P 299 of 1999 passed by the Tribunal. No order as to costs.
As a sequel, miscellaneous applications if any pending in this appeal, shall
stand closed.
__________________________
U. DURGA PRASAD RAO, J
Date: 03.03.2014
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