THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO C.M.A.NO.1526 OF 2000 JUDGMENT: This is an Appeal preferred under Section 173 of the Motor Vehicles Act, 1988, by the Claimants, aggrieved by the inadequate compensation awarded by the Motor Accidents Claims Tribunal –cum- II Additional District Judge, Nalgonda, in O.P.No.434 of 1996. The 1st claimant-appellant is the wife, whereas 2nd to 5th appellants are the children and mother of the deceased Ambothu Kadya, who died on 17-01-1996 in a motor accident, involving a Truck bearing registration No. AEK 1277. It is the case of the claimants that the deceased Kadya along with several others had boarded the Truck along with certain goods, such as, a bag of rice, utensils, etcetera, to go to Hyderabad for eking out their livelihood. It is asserted that the deceased had paid money to the Driver of the Truck for the trip. The Truck was proceeding from Chintapally towards Hyderabad and due to the rash and negligent manner of driving by the Driver, at about 7-30 pm, nearby Kokkirala Thanda, it fell into a ditch by the side of the road, resulting in death of two individuals, one of whom is Kadya and causing injuries to several others. The Police, Chinthapally, have registered a case in Crime No.4 of 1996 under Sections 304 A, 337 and 338 of the Indian Penal Code, against the Driver of the Truck. It was further asserted that the deceased was working as a manual labourer, earning a sum of Rs.2,500/- per month. Thus, a claim in a sum of Rs.1,50,000/- has been laid. The 1st respondent, who was the owner of the Truck, remained ex parte. The 2nd respondent – Insurance Company has contested the case. It had disputed the negligence on the part of the Driver. It had also specifically asserted that the deceased was found traveling in the Truck in violation of the conditions of public carrier permit granted by the Transport authorities and hence, the Insurance Company is not liable to pay compensation for the accident. It is further stated the Insurance policy, does not cover the passengers traveling in the goods carrier. On behalf of the claimants, two witnesses have been examined and two documents - Exs.A-1 and A-2 have been marked. Though no oral evidence has been let in, however, the insurance policy for the Truck in question has been got marked as Ex.B-1, which is for the period from 05-06-1995 to 04-06-1996 and hence, it is a valid and subsisting policy at the time the accident had occasioned i.e., on 17-01-1996. Ex.B-1 has clearly contained the limitations as to the use of the motor vehicle in this regard, which are as follows: “ use only for carriage of goods within the meaning of the Motor Vehicles Act, 1988. The policy does not cover: 1. xxxxxxxxxxxxx. 2. xxxxxxxxxxxxx. 3. Use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of Workmen’s Compensation Act, 1923.” Therefore, Ex.B-1, which is an Insurance Policy and is the result of a contract, has also clearly provided for not rendering itself liable to cover the risk of passengers whether paid or unpaid, carried in the Truck. The 1st claimant-appellant examined herself as PW-1. She has deposed about the relationship of the claimants with the deceased, his employment and earning capacity. She has also filed a copy of the FIR and a copy of the Postmortem examination certificate as Exs.A-1 and A-2. The Postmortem examination certificate - Ex.A-2 revealed the following internal and external injuries: External injuries: 1. Abrasion – 3” x 3” front of chest – Rough surface A.M. Internal injuries: 1. Fracture ribs on ( R) side – 3rd to 8th rigs. 2. Fracture ribs (L) side – 4th to 8th ribs. 3. Bil Halmo-thorax – in – 2 litres. 4. Lacerate of Lung 2” x 1” x 1” – (L) side. 5. Lacerate of Lung 3” x 2” x 1” ( R) side. PW-2 is an eye witness, who has described as to how the accident in question had been caused. He deposed that the Truck was loaded with a consignment of cement bags and nearly 35 persons boarded the truck to go to Hyderabad. Though it is deposed by PW-2 that all of them, including the deceased, have paid their fare to the Driver of the Truck, but the fact remains that the Truck in question is a public transport vehicle and is not liable to carry passengers paid or unpaid in it. In view of the deposition of PW-2 that he is also one of the several persons, who have received injuries in the accident, and in view of the fact that Ex.A-1 has noted the factum of death of two individuals including Kadya in the said accident and Ex.A-2 has only confirmed the death of said Kadya due to multiple injuries sustained by him in the said accident, the Tribunal had no difficulty in arriving at a finding that the accident in question has been caused wholly due to the negligent, rash and irresponsible manner of driving by it’s Driver. The Tribunal had found that, apart from a consignment of load of cement bags, the Truck was also carrying several persons as passengers and one of them was Kadya, who succumbed to the injuries caused by the accident. The questions that remain to be answered are, about was the quantum of compensation, which is liable to be paid to the claimants and which of the respondents is liable to pay the same. Though PW-1 claims that the deceased was 30 years at the time of the accident, but however, going by Ex.A-2, the age of the deceased was considered as 35 years. Since, there is no material to support the contention that the deceased was earning Rs.2,500/- per month, the Tribunal, taking into account and consideration the contemporary standards of wages paid and earned by the manual labour, had considered it appropriate that a sum of Rs.600/- per month as the likely quantum of contribution of the deceased to his family. The Tribunal had adopted a very conservative method in working out the quantum of contribution by the deceased to his family. No exception can be taken thereto. Unfortunately, the error that was committed by the Tribunal was that; as per II Schedule, introduced by virtue of the Amending Act No.54 of 1994, which was brought into force with effect from 14-11-1994, prior to the date of accident in the instant case, the multiplier that is to be applied for the age bracket of 30 – 35 years is, 17. Therefore, the annual contribution, i.e., Rs.7200/- (Rs.600/- x 12 months), has got to be multiplied by 17 instead of 14.81, which was adopted by the Tribunal based upon the ratio laid down by the Supreme Court in BHAGWANDAS v. MOHD. ARIF[1]. Therefore, to the extent of quantifying the compensation, the amount awarded by the Tribunal deserves to be enhanced to Rs.1,22,400/- (Rs.7200 x 17). This apart, a sum of Rs.5,000/- has been awarded by the Tribunal towards loss of consortium to the 1st claimant. Here, again, the Tribunal has overlooked the fact that the deceased was only 35 year-old, while the 1st claimant – appellant wife, was only 28 year-old at the time of the accident. The deceased was young enough and the 1st claimant wife was still a young person. Therefore, the quantum of compensation under the head of loss of consortium, ought to have been awarded at Rs.15,000/-. Therefore, to this extent also, the quantum of compensation deserves to be enhanced. However, one question of legal significance remains to be answered. The Tribunal has held that the Insurance Company is not liable to pay the said compensation, and it is the 1st respondent-Truck owner, who is responsible for paying the quantum of compensation fixed. It will be relevant to notice the viewpoint canvassed in this regard by Sri P. Gopal Dass – learned Standing Counsel for the respondent – insurance Company that the Supreme Court in NEW INDIA ASSURANCE COMPANY V.ASHA RANI ((2003) 2 SCC 233), while reversing the judgment rendered by the Supreme Court earlier in NEW INDIA ASSURANCE COMPANY LIMITED V. SATPAL SINGH (1999 AIR SCW 4337), it was ultimately held that the expression ‘any person’ found in Section 147 of the 1988 Act, would not include passengers in goods vehicle and hence, the insurance Company would not be liable to pay the compensation to the family of the victims found traveling in goods vehicles. With regard to the statutory liability of the Insurance Company, in case of gratuitous passengers, the issue had been well settled in NATIONAL INSURANCE COMPANY LIMITED V. BALJIT KAUR AND OTHERS[2]. It was further pointed out that the dictum in ASHA RANI’S Case (cited supra) has subsequently been followed in ORIENTAL INSURANCE COMPANY V. DEVIREDDY KONDA REDDY ( 2003 ACJ 468 (SC)) and subsequently, the Supreme Court had once again considered this question in NEW INDIA ASSURANCE CO. LTD. V. VEDAWATI AND OTHERS[3], with reference to the amendment made to Section 147 (1)(b)(i) of the Act, by the Amending Act No.54 of 1994, by which, injury to any person, including the owner of the goods or his authorized representative carried in the vehicle is also liable to be compensated or not, and it was held as under: "6. This Court had occasion to deal with cases of passengers traveling in goods vehicles which met accident resulting in death of such person or bodily injury. Such cases belong to three categories i. e. (1) those covered by the old Act, (2) those covered by the Act; and (3) those covered by amendment of the Act in 1994 by the Motor Vehicles (Amendment) Act. 1994 (hereinafter referred to as the 'amendment act' ). 7. The present appeals belong to the second category. 8. In Satpal Singh's case (supra) this Court proceeded on the footing that provisions of section 95 (1) of the old Act are in pari materia with Section 147 (1) of the Act as it stood prior to the amendment in 1994. 9. On a closer reading of the expressions "goods vehicle". "public service vehicle", "state carrier" and "transport vehicle" occurring in sections 2 (8), 2 (25), 2 (29) and 2 (33) of the old act with the corresponding provisions i. e. Section 2 (14), 2 (35) 2 (40) and 2 (47) of the Act, it is clear that there are conceptual differences. The provisions read as follows: old Act: "2 (8) "goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers" "2 (25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage. " "2 (29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:" "2 (33) "transport vehicle" means a public service vehicle or a goods vehicle:" the Act (New Act): "2 (14) "goods carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods:" "2 (35) "public service vehicles" means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab a motorcab, contract and stage carriage:" " 2 (40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:" "2 (47) "transport vehicle" means a pubic services vehicle a goods carriage an educational institution bus or a private service vehicle:" (Underlined for emphasis)10. "liability" as defined in Section 145 (c) of the Act reads as follows: "liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140. " 11. Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 of the Act (sic) is to be (sic) with Section 96 of the old Act. Proviso to Section 147 of the Act reads as follows: 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 injure 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. 1993 (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 vehicles, or (c) if it is a good carriage, being carried in the vehicle, or (ii) to cover any contractual liability. " 12. It is of significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the Act. The same reads as follows:-"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 from the vehicle at the time of the occurrence of the event out of which a claim arises. " 13. 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". 14. 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 therefor. 15. 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. (2002 (8) Supreme 594] 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. 16. This position was also highlighted in oriental Insurance Co. Ltd. v. Devireddy konda Reddy and Others (2003 (2) SCC 339 ). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003 (9) SCC 668), in National Insurance Co. Ltd. v. Baljit kaur and Others (2004 (2) SCC 1) and in national Insurance Co. Ltd. v. Bommithi subbhayamma and Others (2005 (12) SCC 243), the view in Asha Rani's case (supra) was reiterated. " Hence, it is now a settled principle of law that the policy of insurance taken out by the owner of a Truck would only cover a third-party risk as well as the risk of the owner of the goods or his authorized representative, but not the risk of a passenger, whether paid or unpaid, carried in a goods vehicle. Therefore, the finding of the Tribunal that the insurance company is not liable to pay for the compensation, but only the owner of the offending Truck is liable to pay for the compensation, calls for no modification. Hence, subject to the modification and substitution of the quantum of compensation as noted supra, in the award passed in OP No.434 of 1996, the rest of the award is confirmed. The Appeal stands allowed, to the extent indicated supra. No costs. -------------------------------- Nooty Ramamohana Rao, J 24th December 2009 mrk/knk [1] 1987(2) ALT 137: ACJ 1987 1052 [2] (2004) AIR SCW 212 [3] 2007(3) Scale 397