THE HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 977, 980, 981, and 982 of 2008 Date:07.08.2009 Between: MA CMA NO.977 of 2008: The New India Assurance Company Ltd. …Appellant And/- Korukonda Apparao and another …Respondents. MA CMA NO.980 of 2008: The New India Assurance Company Ltd. …Appellant And/- Karanam Devi and another …Respondents. MA CMA NO.981 of 2008: The New India Assurance Company Ltd. …Appellant And/- Karanam Adibabu and another …Respondents. MA CMA NO.982 of 2008: The New India Assurance Company Ltd. …Appellant And/- Akkireddy Lakshmi and two others …Respondents. THE HON’BLE MR JUSTICE R. KANTHA RAO MACMA Nos. 977, 980, 981, and 982 of 2008 COMMON JUDGMENT: These appeals are filed by the New India Assurance Company Limited which is the second respondent before the Tribunal against the award passed by the Motor Accident Claims Tribunal (X Additional District Judge) Fast Track Court, Visakhapatnam at Anakapalle in MV OP Nos.493 of 2007, 284 of 2007, 285 of 2007 and 420 of 2007. 2. All the claims arise out of the motor accident occurred on 14.07.2006 wherein the lorry bearing No. AP-31-T-3358 which was insured with the appellant was involved. 3. OP Nos.493 of 2007, 284 of 2007, and 285 of 2007 are preferred by the injured claimants, whereas O.P.No.420 of 2007 is preferred by the legal representatives of the deceased. 4. In O.P.No.493 of 2007 the Tribunal awarded a sum of Rs.36,000/- towards compensation on account of the injuries sustained by the claimant. 5. In O.P.No.284 of 2007 the Tribunal awarded a sum of Rs.34,000/- towards compensation on account of the injuries sustained by the claimant. 6. In O.P.No.285 of 2007 the Tribunal awarded a sum of Rs.12,000/- towards compensation on account of the injuries sustained by the claimant. 7. Whereas in O.P.No.420 of 2007 the Tribunal awarded a sum of Rs.3,00,000/- to the legal representatives of the deceased on account of the death of the deceased in the said motor accident. 8. The challenge by the appellant-insurance company to the impugned award is mainly on the ground that the insurance company is not liable to pay compensation to the claimants since admittedly the injured/deceased were travelling in the lorry as unauthorised passengers for which there is no coverage of risk under the policy and also by virtue of the provisions of the Act and the other ground on which the awards were challenged is that the injured claimants are not entitled for compensation since the doctor who treated them was not examined. 9. I shall in the first instance deal with the question whether the Tribunal erred in granting compensation to the injured claimants despite the fact that they did not examine the doctor who treated them for the injuries. It is the contention of the appellant/insurance company that in the absence of evidence of doctor, it is not possible for the Tribunal to grant any compensation to the injured. It may be stated that in all the cases, the compensation was awarded only to the simple and grievous injuries, but not in respect of any permanent disability. The proceedings under Section 166 of the Motor Vehicles Act are summary in nature and the Motor Vehicles Act is a beneficial legislation intended to provide just and reasonable compensation to the victims of the motor vehicle accidents to the extent possible, and the provisions have to be construed in favour of the claimants. Further, the injured-claimants filed copies of injury certificates which are marked as Ex.A-2. The said documents indicate the injuries sustained by the claimants and they were marked without any objection from the appellant-insurance company. This apart, there is oral testimony of the injured-claimants in regard to the injuries sustained by them. There is no absolute proposition of law to the effect that in the absence of the evidence of the doctor, the Tribunal cannot award any compensation, more particularly, when the injury certificates were brought on record. I am of the considered view that it is well within the competence of the Tribunal to award just and reasonable compensation basing on the oral evidence of the claimants and the injury certificates brought on record by them. Therefore, this point is answered against the insurance company. 10. Now I shall examine the main contention that the injured- claimants as well as the deceased were labourers travelling in the goods vehicle which is prohibited, and the insurance company is not liable to pay compensation. 11. In support of the contention that carrying passengers in the goods vehicle is prohibited as per the provisions of Section 147 of Motor Vehicles Act. If the goods vehicle while transporting passengers involves in the accident, the insurance company is not liable to pay compensation to the claimants in a claim petition filed under Section 166 of the Motor Vehicles Act. Reliance is placed by the learned Counsel for the appellant on National Insurance Co. Ltd. Vs. Surat Singh[1] wherein single Judge of the High Court of Delhi referring to National Insurance Co. Ltd. Vs. Bommithi Subbhayamma[2], National Insurance Co. Ltd. Vs. Baljit Kaur[3], New India Assurance Co. Ltd. Vs. Asha Rani[4], New India Assurance Co. Ltd. Vs. Vedwati[5] and National Insurance Co. Ltd. Vs. Prema Devi[6] held as follows: “The issue involved in the present appeals is no more res integra, as the Apex Court has taken a view that 147 of the Motor Vehicles Act does not envisage coverage of risk of gratuitous passenger and, therefore, to carry a gratuitous passenger is clearly in violation of terms and conditions of the policy on the part of the owner and consequently no liability to pay the compensation can be fastened on the insurance company. In such like cases, even recovery of rights cannot be given, as the insurance company is completely absolves from any liability to pay the compensation amount.” 12. In this context, it is relevant to refer to the ratio laid down by the Apex Court in Vedwati5 relied upon by the learned single judge of the Delhi High Court, wherein the Apex Court held as under: “The difference in the language of ‘goods vehicle’ as appears in the old Act and ‘goods carriage’ in the New 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 ‘goods vehicle’ in the old Act. The position becomes further clear because the expression used is “goods carriage, which 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’” “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 traveling in a goods carriage and the insurer would have no liability therefor.” 13. Though the learned single judge of Delhi High Court in the decision relied upon by the Counsel for the appellant in Surat Singh1, held that even the recovery rights cannot be given, as the insurance company absolved from any liability to pay compensation. In my view, the said finding is not in accordance with the settled law on this aspect. In a recent decision reported in United India Insurance Co. Ltd. Vs. Suryakantabai[7] the learned single judge of the High Court of Bombay at Nagpur Bench held that according to the law laid down by the Supreme Court in Baljit Kaur3, the insurance company would first satisfy the award and thereafter recover the amount from the owner by filing an execution application before the Court and the insurance company is not required to file a separate suit. 14. Before parting with the judgment of these appeals, it is essential to refer to the ratio laid down by the apex Court in Baljit Kaur3 “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 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 decision 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 sub-served if the appellant herein is directed to satisfy the award 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 directions having regard to the scope and purport of Section 168 of the Motor vehicle 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 in as much as can be resolved by the Tribunal in such a proceeding?”. 15. However, the learned counsel appearing for the appellant- insurance company would submit that the insurance company cannot be made liable to pay compensation beyond the terms of the contract of the insurance company and he placed reliance on National Insurance Company Ltd. Vs. Anjana Shyam and others[8] in which case the Apex Court held that the parties are governed by the terms of the contract, the insurance though made compulsory by statute, but that does not mean that insurer is bound to pay the amounts outside contract of the insurance itself or in respect of the persons not covered by contract at all. It was further held that the insurer is liable only in respect of number of passengers covered by the insurance policy. This is so, even under Section 149 of the Motor Vehicles Act, the insurer is not bound to pay amounts outside the contract of the insurance itself or in respect of the persons not covered by contract at all. 16. Relying on the above decision, the learned counsel also would submit that no direction can be issued against the appellant- insurance company to pay the compensation to the claimants first and then recover the same from the owner of the vehicle. 17. On perusal of the policy copy filed by the insurance company, it is mentioned regarding the limit of the liability is as follows: “Limit of the amount of the Company's liability under Section II-1(ii) in respect of any one claim or series of claim arising out of one event, up to Rs.7,50,000/-.” 18. In all these appeals, the total amount of compensation works out to Rs.3,82,000/- which is less than the limit of liability undertook by the appellant/insurance company under the policy. 19. Therefore, applying the ratio laid down in Baljit Kaur's case which is relied upon by the learned counsel appearing for the appellant/insurance company, the insurance company is directed to first satisfy the above mentioned awards and thereafter recover the amounts from the owner of the vehicle without filing a separate suit. 20. For the foregoing reasons, the appeals filed by the insurance company are partly allowed without any order as to costs. _______________ Date:07.08.2009. R. KANTHA RAO, J CCM [1] V (2008) ACC 48 [2] III (2005) DMC 423 (SC) [3] I (2004) ACC 259 (SC) [4] III (2002) ACC 753 (SC) [5] I (2007) ACC 924 (SC) [6] 2008(5) SCC 403 [7] 2009 ACJ 391 [8] 2007(5) ALD 89 SC