F.A.O.NOs. 2046 to 2050 OF 2004 and F.A.O.NO. 2688 OF 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 2046 OF 2004 Date of decision:24th September, 2010 National Insurance Company Ltd. SCO 337-340, Sector 35-B, Chandigarh, through its Officer. .......Appellant Versus Geeta and others ........Respondents F.A.O.NO. 2047 OF 2004 National Insurance Company Ltd. SCO 337-340, Sector 35-B, Chandigarh, through its Officer. .......Appellant Versus Parmod Mandal and others ........Respondents F.A.O.NO. 2048 OF 2004 National Insurance Company Ltd. SCO 337-340, Sector 35-B, Chandigarh, through its Officer. .......Appellant Versus Suraj Narayan Mandal and others ........Respondents F.A.O.NO. 2049 OF 2004 National Insurance Company Ltd. SCO 337-340, Sector 35-B, Chandigarh, through its Officer. .......Appellant Versus Jaman Rishi Dev and others ........Respondents F.A.O.NO. 2050 OF 2004 National Insurance Company Ltd. SCO 337-340, Sector 35-B, Chandigarh, through its Officer. .......Appellant F.A.O.NOs. 2046 to 2050 OF 2004 and F.A.O.NO. 2688 OF 2004 2 Versus Sarwan Mandal and others ........Respondents F.A.O.NO. 2688 OF 2004 Sarwan Mandal and another .......Appellant Versus Pradeep Kumar and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. L.M.Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate, for the appellant. Mr. Brijender Kaushik, Advocate, for the claimants. Mr. A.K.Jain, Advocate, for the Owner and Driver. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal challenging the liability on the ground that the claim arose out of an accident involving passengers who had paid hire charges in a goods carriage and were travelling along with their luggage, transporting as they were from Bihar to a work place in Punjab. 2. The Tribunal held that the persons who were carrying their own goods included trunks and bedding must be treated as F.A.O.NOs. 2046 to 2050 OF 2004 and F.A.O.NO. 2688 OF 2004 3 goods and therefore, they could travel along with the goods and that was a law laid down by the Hon'ble Supreme Court under Section 147 amendment in the Motor Vehicles Act, 1988. The Tribunal relied on the decision in Ramesh Kumar vs. National Insurance Company Ltd. and others (2001) II ACC 492(SC) and followed also the subsequent ruling of the Hon'ble Supreme Court in New India Assurance Co. Ltd. vs. Asha Rani and others (2003) 2 SCC 223 which affirmed that there is compulsory cover for persons who are owners of the goods travelling along with the goods. This decision further explained a previous judgment in New India Assurance Company v. Satpal Singh and others (2000) I ACC 1, did not lay down the correct law in respect of situation of passengers in a goods carriage to be covered prior to amendment to Section 147 of the Motor Vehicles Act, 1994. 3. The whole issue will depend upon whether the personal bedding and luggage which the persons were transporting for the livelihood could be treated 'as goods' within the definition of Section 2(13) of the Motor Vehicles Act. This issue has been dealt with in considerable detail by this Court in the decision in New India Assurance Company Limited Versus Bali Devi and others in FAO No. 14- 28 of 2006 decided on 7.09.2010. I have already held that persons carrying their own luggage including bedding or trunk and travelling with the goods in the open bay are not required to be covered by the Insurer and they are also not covered in this case. Even otherwise F.A.O.NOs. 2046 to 2050 OF 2004 and F.A.O.NO. 2688 OF 2004 4 persons who could be owners travelling with the goods are not expected to travel in the open bay but shall travel only in the cabin. It was so held in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others (2008) 1 SCC 423 that the owner could only be expected to travel in the cabin and person coming to harm sitting in any other place commits a breach of the policy that will enable the insurer to claim the recovery even against the owner. 4. The award of the Tribunal in view of the decisions referred to above cannot be sustained. The award is set aside and the claimants shall have a right of enforcement only against the owner insured of the vehicle. If any portion of the awards have been recovered during the pendency of the appeal from the insurer, the insurer will apply for a right of refund only from the insured/owner and not from the claimants. All the appeals by the Insurer are allowed to the above extent. 5. As regards the appeal for enhancement of compensation by the claimants, there is no argument made by the learned counsel appearing on their behalf. The appeal stands dismissed. [K.KANNAN] JUDGE 24th September, 2010 Shivani Kaushik