IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.406/1998 THE NEW INDIA ASSURANCE CO. VS. PARTHENG & ORS. Date of order : 2.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Jagdish Vyas, for the appellant. Mr. B.N.Kalla & Mr. M.Trivedi, for the respondents. BY THE COURT:- This is a miscellaneous appeal filed by Insurance Co. (Insurer) under Section 173 of the Motor Vehicles Act (For short called 'the Act') against an award dated 29.4.98 passed by MACT, Kushalgarh in Claim Case No.53/1996. 2. By impugned order, the Tribunal partly allowed the claim petition of claimants filed under Section 166 of the Act and awarded a total sum of Rs.36,000/- to them for the injuries sustained by him in vehicular accident. 3. Facts of the case are these. 1 4. On 3.5.1992, a young man by name “Partheng” boarded a tempo pick up van (Bajaj) bearing No. G-J-17-T-5274. It is the case of claimant that driver of tempo pick up van was driving very fast and due to his negligent driving, the tempo lost its balance and dashed to one board standing near the road. In this accident, claimant suffered serious injuries. It is this event, which gave rise to filing of the claim petition by claimant under Section 166 of the Act against the non- applicants, i.e. owner, driver and insurer of the offending vehicle (tempo). 5. In this case, one of the main defense of Insurance Company was that since victim was traveling in the goods vehicle i. e. tempo as gratuitous passengers and hence, no liability can be fastened of any nature so far as Insurance Company is concerned. In other words, the defense of Insurance Company was that the victim was not travelling in the goods vehicle for the safety of his goods, nor he had hired the offending vehicle for carrying his goods and hence, Insurance Company can not be held liable to indemnify the risk of such gratuitous passenger. It is this issue which was gone into alongwith other issues on facts. Parties led evidence. However, the Tribunal by impugned award allowed the claim petition in part. It was held that the accident in question occurred on account of rash and negligent driving of driver who was driving the offending vehicle. It was held that Insurance Company is liable to pay the compensation. Accordingly, the impugned award was passed by the Tribunal for a total sum of Rs.36,000/- for the injuries sustained by him in such accident. It is against this award, the Insurance Company alone has come up in appeal. 2 6. Submission of learned counsel for the appellant i.e. insurance Company was one. According to learned counsel law on the question involved in appeal no longer remains res integra and is settled by the authoritative pronouncement of Supreme Court in the case of National Insurance Company vs. Baljit Kaur and others 2004 ACJ 428. Learned counsel pointed out that Tribunal was bound to decide the issue against the Insurance Company (appellant herein) because at that time the law was against the Insurance Company in view of decision rendered by the Supreme Court in the case of New India Assurance vs. Satpal (2000) ACJ I (SC). It was his submission that the view taken by the Supreme Court in Satpal was later overruled by Supreme Court in the case of Baljit (supra). Learned counsel maintained that henceforth, it is the law laid down in Baljit that governs the field for deciding the issue involved. Learned counsel pointed out that the evidence tendered by the claimants themselves show that the victim was traveling in the goods vehicle as gratuitous passengers and hence, in the light of law laid down in the case of Baljit (supra), no liability can be fastened on the insurance Company. In reply, learned counsel for the claimant made attempt to distinguish the decision of Baljit on the basis of evidence and prayed for upholding of the impugned award. 7. Having heard learned counsel for the parties and having perused record of the case, I am inclined to allow the appeal and set aside the award as against the appellant as indicated. 8. As rightly urged by the learned counsel for the appellant, the law on the issue involved no longer remains res integra. It is now settled by the authoritative pronouncement of Supreme Court in the 3 case of Baljit (supra). This is what the issue that fell for consideration in Baljit :- “The question that arises for consideration in these appeals is whether an insurance policy in respect of a goods vehicle would also cover gratuitous passengers, in view of the legislative amendment in 1994 to Section 147 of Motor Vehicles Act, 1988.” 9. After examining the earlier decision on the issue and overruling Satpal supra in Asharani’s case, their Lordships held as follows :- “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. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not 4 think so. 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, 2000 ACJ 1 (SC). The said decision has been overruled only in Asha Rani, 2003 ACJ 1 (SC). 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. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned direction having regard to the scope and purport of section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. 22. For the aforementioned reasons, the appeals are partly allowed to the aforementioned extent and subject to the directions aforementioned. But there shall be no order as to costs. 5 10. I am, therefore, only required to see on the facts of the case and the evidence led as to whether there is any material to hold that victim of the claim case was traveling as owner of the goods or its authorized agent in the vehicles by hiring for his goods, or whether he was traveling as gratuitous passenger? 11. It is not in dispute that offending vehicle was a tempo i.e. “Bajaj pick up van” and was thus a “goods vehicle”. Indeed it is also insured as goods vehicle. It is also not in dispute that claimant/injured asked for a lift on the road when the tempo in question was moving and got inside along with some more persons alike him. 12. In my view, such traveling in the tempo does not amount to either hiring such vehicle by a person traveling in it, nor it amounts to person travelling in goods vehicle for the safety of his goods. In order to attract the provisions of Section 147 of the Act, there has to be a hire of goods vehicle by such person for carrying his gooods from the insured and he should travel in such vehicle along with his goods for its safety and not by payment of some money to its driver when he was carrying somebody's else goods or by taking a lift. 13. In my opinion, the evidence of claimants itself proves that the victim of accident had not hired the vehicle in question for carrying his goods from one destination to other. Rather it proves in clear terms that he was traveling in the tempo as gratuitous passenger, when he boarded in between the road. The very fact that he asked for lift or even if paid some money to driver and the manner in which he was sitting in the tempo along with driver and some more persons alike him clearly shows that he was not traveling in the tempo as an owner along with his goods being carried in the tempo for hire or 6 reward. In other words, I have no hesitation in coming to a conclusion that the victim was a gratuitous passenger travelling in a goods vehicle. 14. Once I record this finding which alone is necessary for deciding the question of liability in so far as the Insurance Company is concerned, the inevitable conclusion is that law laid down in Baljit case (supra) will apply in favour of Insurance Company. In other words, no liability can be fastened on the Insurance Company, once it is held that the victim was gratuitous passenger traveling in goods vehicle. 15. In view of aforesaid, I do not consider it necessary to examine any other issue arising in the case because the impugned award has to be set aside so far as appellant (Insurance Company) is concerned. Appeal thus, succeeds and is allowed. Impugned award in so far as it is passed against the appellant is concerned, stands set aside. However, it will remain intact in so far as other non-applicants i.e. owner and driver are concerned. 16. Since the Tribunal decided the issue prior to law being settled by the Supreme Court, I direct the insurance company to first deposit the awarded sum and then recover the same in these very proceedings from the insured, i.e. owner of truck. No cost. (A.M. SAPRE),J. /tarun/ 7