1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T (1) CIVIL MISC. APPEAL No. 675 of 1996 THE NEW INDIA ASSURANCE COMPANY V/S SMT. PUSHPA DEVI & ORS (2) CIVIL MISC. APPEAL No. 676 of 1996 THE NEW INDIA ASSURANCE COMPANY V/S SMT. PUSHPA DEVI & ORS Date of Judgment : 17.3.2009 HON'BLE SHRI N P GUPTA,J. Mr. RK MEHTA, for the appellant (insurer) Ms. REKHA BORANA, for the respondent BY THE COURT : These two appeals have been filed by the insurer, against the award of the Motor Accident Claims Tribunal, Udaipur dated 2.9.1996, awarding a compensation of Rs.30,000/- in claim No.429/89, being subject matter of CMA No.675/96, and awarding Rs.50,000/- in claim No.430, which is subject matter of CMA 676/96. Thus, the appeals arise 2 out of the common judgment, and single accident, therefore both the appeals are being decided by this common judgment. It may be observed, that learned Tribunal, by the said judgment had decided yet another claim No.323/89, of course, that was dismissed, being a personal injury case. The happening of the accident, negligence, the claimant Pushpa Devi in claim No.429 receiving injuries, and in claim No.430 deceased Hemlata having died in the accident, and the quantum of compensation, are all questions, on which there is no controversy between the parties before me, as no cross-objections have been filed by the claimants either. The only controversy raised before me, by the appellant is, that both the victims being Smt. Pushpa Devi and Hemlata were travelling in the truck, being delinquent truck No. RJY 1887, as passenger, which truck overturned, as a result of which Hemlata died, and Pushpa Devi received injuries, for which death, and personal injuries, the insurance company is not liable. It was contended, that the insurance cover was issued covering risk of driver, cleaner and four labours, while the victims do not fall in any of these categories, and obviously they are not third parties, as such their risk is neither covered, nor is required to be covered under Section 95 of the Motor Vehicles Act. In the present case, accident occurred on 5.5.1989, thus the 3 matter is covered by the provisions of the old Act, being Motor Vehicles Act 1939. It is contended, that therefore, the award, so far it holds the appellant liable, is required to be set aside. Learned counsel for the claimant, on the other hand, supported the impugned award, and tried to refer to the judgment of Hon'ble the Supreme Court, in Sohan Lal Passi Vs. P. Sesh Reddy & Ors., reported in (1996)5 SCC-21 and also referred to some other judgment of this Court, to contend, that if the driver allowed the passengers to travel against the instructions of the owner, in that event, for such an act of the driver, the owner cannot be held liable, and in any case, the insurer is liable. It was also submitted, that in the present case, the Tribunal has found, that at the time of passing of the award, the Motor Vehicles Act had undergone amendment, and the limits of no fault liability has been increased to RS.50,000/-, and since the award passed in both the cases does not exceed that limit, therefore, insurer cannot escape its liability. I have considered the submissions and have gone through the record. So far as the judgment of Sohan Lal Passi's is concerned, that judgment is on a different aspect, inasmuch as, in that case, the vehicle was being driven by the 4 cleaner, which was so allowed to drive by the driver, and the said cleaner was not having any licence, and on those facts, it was held that the owner of the vehicle had duly appointed a licensed driver, and if the vehicle was driven by unauthorised person allowed by the licensed driver, in that case, insurance company cannot escape its liability to third party, on the ground of contravention of the conditions of the policy. It was in that background that it was held that the accident took place when the act authorised was being performed in a mode, which may not be proper, but nonetheless it was directly independent act, for the purpose, which had no nexus or connection with the business of the owner, so as to absolve him from the liability. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned, and in that sequence, it was held, that the Tribunals had to be conscious of the fact, that right to claim compensation by the heirs and legal representatives of the victims is not defeated on technical grounds, unless it is established, that it was the insured who had willfully violated the conditions of policy by allowing a person not duly licensed to drive the vehicle, and the accident occurred. On the other hand, the judgment of Hon'ble the Supreme Court in New India Assurance Company Vs. Satpal Singh & Ors., reported in JT 1999(9) SC 416, could be a nearer case, where the insurer was held liable 5 to pay in respect of death or bodily injury caused to the owner of the goods, or his authorised representative, when being carried in the goods vehicle, when the accident occurred, but then, subsequently a larger bench of Hon'ble the Supreme Court, comprising of three Hon'ble Judges, in New India Assurance Company Limited Vs. Asha Rani & Ors., reported in JT 2002(10) SC 162, has expressly overruled that judgment. In Asha Rani's case, Hon'ble the Supreme Court considered the provisions of the old Act, being Section 95, and that of the new Act being Section 147(1), and in para 9 it was held, that requirements of policies and limits of liability had been provided in Section 95, and the proviso to Section 95(1) unequivocally states, that the policy shall not be required in case of a goods vehicle, for passengers being carried in the said vehicle. Then, the earlier judgment in Mallawwa (smt.) & Ors. Vs. Oriental Insurance Co. Ltd. & Ors., reported in JT 1998(8) SC 217, was referred, to and followed, wherein it was held, that goods vehicle cannot be held to be passenger vehicle, even if vehicle was found to be used on some stray occasions for carrying passengers for hire or reward. Then there are series of judgments of Hon'ble the Supreme Court, in this sequence. I may then simply refer to the judgment in Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy & Ors., reported in JT 2003(1) SC 372, which again was a case 6 under the old Act, and was a case of passenger travelling in the goods carriage, and following Asha Rani's case it was held, that the High Court was not justified in holding, that the insurer had the liability to satisfy the award, and thus, the insurer was exonerated. Thus, in my view, it cannot be said that the insurer is liable for the compensation, in the event of death or bodily injury being suffered by the passenger of the goods vehicle. So far as the contention based on the insurance policy which covers the risk of 4 labours, it would suffice to say, that of course it does cover the risk of 4 labours, but then, coming to the facts, firstly in the claim petition it is nowhere the plea, that the victims were travelling in the vehicle as labour, much less so as to attract any liability under Workmen’s Compensation Act. Then the insurer had taken the plea, that the claimant and defendant No.1 are close relative, who were being illegally carried in the vehicle, for which insurer is not liable under the terms and policy, and under the provisions of the Act. Then in para 14 of the written statement it was also pleaded, that apart from the claimant and the victims, many other passengers were being carried in the truck as passengers, which was in violation of the provisions of law, registration certificate, road permit, and the policy 7 conditions, and therefore, insurer is not liable. It was also pleaded that the insurer had not undertaken the risk of such passenger, who was being carried in the vehicle, nor was such risk, required to be covered under Section 95 of the Motor Vehicles Act. Then coming to the evidence, the claimant Pushpa herself, in the examination-in-chief itself, has stated right in the opening, that she was standing on Magwas bus stand for going to Udaipur, where one truck came, and the truck driver called passengers, by calling them, and telling them, that now no conveyance would be available, and got them boarded in the truck. When they reached Jhadol and wanted to alight, truckwala said to continue in the truck, as they would carry them to Udaipur, and after leaving Jhadol the truck met with the accident. Then in cross-examination also she stated, that she and her daughters were sitting in the cabin of the truck, bus is available from Jhadol to Udaipur every hour, she was waiting on the bus stand, awaiting for the bus for last 10- 15 minutes or for half an hour, and that, she had paid Rs.10/- as fare to the truckwala. No evidence had been led in rebuttal. Thus, it is clear that even according to the claimants, the victims were not travelling in the goods carriage truck as labour, so as to be covered by the insurance policy. 8 The net result of the aforesaid discussion is, that the insurance company cannot be held liable for the compensation. Both the appeals are accordingly allowed. The impugned award, so far as it holds the insurer liable is set aside, and the insurer is exonerated. However, it is clarified that whatever amount have been paid by the insurer on no fault liability basis, or for fulfilling the requirement of filing the present appeals, shall be retained by the claimants, and the insurer would be entitled to recover back the said amount from the owner in these proceedings itself, and whatever amounts remain outstanding to the claimants, for that, the claimants would be free to proceed against the owner. The parties shall bear their own costs of these appeals. ( N P GUPTA ),J. /tarun/