1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1411 OF 2004 The National Insurance Co. Ltd. N.T.C.House, N.M.Marg, Ballard Estate, Mumbai – 400 038 .. Appellant. Vs. 1. Dayanand Margeppa Pedde Resident of Malang Galli, Shivajinagar, Latur Dist.Latur .. 2. Prakash Dhanraj Soniminde Resident of 6/Sarita, V.N.Purav Marg, Sion Bombay Road, Chunabhatti, Mumbai – 400 024. .. 3. Sudhakar Baburao Shinde Driver, Gandhinagar, Nilanga, Tal.Nilanga, Dist.Latur .. Respondents. Mr.S.S.Bhide for the appellant. Mr.D.D.Shinde for the respondents. CORAM : D.B.BHOSALE & R.Y.GANOO,JJ. DATED : 16TH FEBRUARY, 2010. JUDGMENT: (PER D.B.BHOSALE, J.) The National Insurance Company Ltd. (for short “Insurance Company”) has filed this appeal against the judgment and order dated 7.6.2004 rendered by the Motor Accidents Claims Tribunal, Pune, (for short “the Tribunal”) in claim petition No.515 of 1990. By the impugned judgment, the claim petition instituted by S 2 respondent no.1 – claimant (for short “the claimant”) has been allowed and the appellants and respondent no.2 have been directed to pay the total compensation of Rs.28,17,000/-, inclusive of interim compensation, to the claimant. While allowing the claim petition other consequential directions have also been issued by the tribunal. 2. The facts, sans unnecessary details, are as follows: the claimant, who was hardly 23-24 years old at the time of accident, was a resident of Latur. He was in transport business and was also working as commission agent at Latur. He was also dealing in salt business. At the relevant time he had gone to Mumbai in connection with his business. The offending vehicle i.e truck no.MTQ 9031 (for short “the truck”) was attached to Kiran transport at Mumbai. On 18.2.1990, according to the claimant, he hired the truck for carrying paper/card-board boxes (for short “the goods”) from Mumbai to Latur. He was also to load salt bags at Solapur for carrying them to Latur. The claimant was also travelling in the truck alongwith the goods. The truck was to go to Latur via Solapur. While the truck was near Lonavala, on Mumbai-Pune road, at about 4.30-5.00 am, according to the claimant, due to rash and negligent driving, it met with an accident. In the accident the claimant sustained serious injuries, and suffered 100% permanent disability. 3 3. The claimant, on 31.7.1990 filed a claim petition and prayed for compensation of Rs.7 Lacs from the Insurance company and respondent nos.2 and 3. Thereafter the claimant amended the petition on 22.8.2002 and enhanced his claim from Rs.7 Lacs to Rs.25 Lacs. The insurance company filed their written statement dated 24.8.1992/30.10.1992, and opposed the claim contending that the claimant was travelling in the truck as unauthorised/gratuitous passenger. It was further contended that under section 147 of the Motor Vehicles Act, 1988 (for short “the Act of 1988”), prior to the 1994 amendment, the insured was not obligated to get his vehicle insured for any passenger like the claimant, and, therefore, the insurance company was not legally liable to pay any compensation to such person. In the alternative, the insurance company also contended that in case it is held that the claimant was travelling as “authorised non fare paying passenger” with his goods, he would be at the most entitled for compensation to the extent of Rs.20,000/-. After the amendment was carried out by the claimant the insurance company did not file additional written statement. 4. Before the Tribunal, the claimant, in support of his claim, examined himself and two doctors, namely, Dr.Dilip Deshpande, attached to Vivekanand Hospital at Latur, and Dr.Sharad 4 Ratnaprakash Jyoti, the Orthopaedic Surgeon, attached to Sancheti Hospital, at Pune. The insurance company did not examine any witness. The Tribunal, after having considered the entire material/evidence on record, held that the driver of the truck was driving the truck in a rash and negligent manner at the relevant time, and as a result thereof he lost control and the truck met with an accident causing serious injuries to the claimant. The Tribunal, held that the claimant is entitled for the total compensation of Rs.28,17,000/-. 5. It would be relevant to state few undisputed/admitted facts. When the accident occured the claimant was in the truck. Respondent no.2 was the owner of the truck, while respondent no.3 was its driver. The appellant was insurer of the truck and the insurance policy was subsisting on the date of accident. In the accident, the claimant sustained serious injuries leading to 100% disability. 6. It is against this backdrop, before dealing with the questions of law, raised by learned counsel for the parties, it would be relevant to record that though, in the course of hearing, the entire evidence was read, the learned counsel for the appellant did not address the court on the first two issues, which were answered by the Tribunal in affirmative. The first two issues read as follows: (1) 5 Does the applicant prove that the driver of vehicle No.MTQ-9031 was rash or negligent in driving the said vehicle ? (2) Does the applicant prove that he received injuries on account of such a driving ?”. 7. Counsel for the parties, however, addressed the court on the point whether the claimants, at the relevant time, was travelling in the truck “alongwith his goods”. The Tribunal, on the basis of evidence on record, has held that there is no material on record to show that the claimant was in the truck alongwith his goods. According to the insurance company, the claimant was travelling as an unauthorised passenger and he did not either hire the truck or had any goods with him when the truck met with an accident. As against this, according to the claimant, he had hired the truck for carrying his paper/card board boxes to Solapur and for loading salt bags at Solapur for carrying them to Latur. We would like to deal with this question little later. 8. The claimant examined himself as witness. His evidence is at Exhibit-45. According to the claimant on 17.2.1990, he hired the truck for carrying his paper/card-board boxes to Solapur and there he was to load salt bags in the truck and carry them to Latur. He had agreed to pay Rs.2,500/- as rent. On their way, while the truck was at some distance from Lonavala, the driver lost control and the 6 truck met with an accident. In the accident, he sustained serious injuries. It would be relevant to reproduce paragraph 2 of the examination in chief wherein he has stated about the nature of injuries sustained in the accident, and what medical aid/treatment was given to him at Pune and at Latur. Paragraph 2 of the examination in chief reads thus: “.... .... 2. I had taken treatment at Parmar Hospital for 1 1/2 days. Some 20 to 25 stiches were taken to my head injuries. As I had severe back bone injuries I was advised to take best treatment at Sancheti hospital, Pune. Then I was shifted to Sancheti Hospital on 19/2/90. I was there till 2/4/90. On 3rd day my admission at Sancheti hospital I was operated upon for L-1 and D-12 vertibrae. Two rods were implanted. Still the rods are there. The treatment at Sancheti hospital was costly therefore I was discharged on 2nd of Aprio. I went to Latur and was admitted in Vivekanand Hospital for further treatment. I was there till 15-6-90. There I was under treatment of Dr.Dilip Deshpande, who has treated me on the basis of the treatment given at Sancheti hospital. In the year 1995 I was to admit in Sancheti hospital for bed sole treatment. I was therefor one month. Then again in the year 2001 I was admitted in Sancheti hospital for one day. Then from 11/11/2003 to 25/11/2003 I was admitted in Sancheti hospital for the treatment. Still I am getting treatment for my accidental injuries from Sancheti hospital and Vivekanand hospital.” 7 9. We would also like to reproduce relevant portion of paragraph 3 of his examination in chief, which read thus: “.... .... .... I have lost complete sensation of the body below the waist. I am unable to stand, fold my legs and do any work. I have no control on the chair wheel which I must use all the while. I can not do any work on my own account. All the while I need an Attendant. My daily expenses are Rs.350/- I am required to do self cathetarisation. The same cathethral can not be used for more than one time to safeguard my kidney. I am required to take medicines and use steriod daily. I am required to take Anema daily for the latrine.” 10. In support of the claim, the claimant also stated how much expenditure he had incurred till his evidence was recorded, and how much more expenditure he would require in future, to which we are not making reference in view of the fact that the learned counsel for the insurance company did not address us on the quantum of compensation. However, at this stage we observe that there is sufficient material on record which justify the total amount of compensation awarded by the Tribunal, and, in our opinion, it deserves to be confirmed. In the cross examination, it was stated that alongwith him there were 5 other persons in the truck including the driver. He, however, specifically denied the suggestion that he was not carrying any goods with him in the 8 truck. 11. Dr.Dilip Deshpande (Exhibit-60) was attached to Vivekanand Hospital at Latur. After having considered the nature of injuries sustained by the claimant in the accident, Dr.Deshpande stated that there is no possibility of any improvement in his physical capacity. He further stated that the claimant suffered from Paraplegia and it is 100% permanent disability. In the cross examination he reiterated that recovery in this case is not possible. 12. Dr.Sharad Jyoti (Exhibit-62), the Orthopaedic Surgeon, attached to Sancheti Hospital, Pune, had operated the claimant on 22.2.1990. In paragraph 1 of the examination in chief he stated thus : “.... .... ....I operated upon him on 22/2/1990. He had a fracture of spine with paraphegia. Before that I examined him and found that he was a patient of compression fracture lumber No.1 vertibra with paraphexia. Paraplegia means in the instant case the patient has no control over the limp below lumbper region. He had no sensation, no bladder bowel or sexual control. All these are lost. Even after the operation the patient could not recover. It is because of division of spine code was complete.” 13. Even according to Dr.Sharad Jyoti the claimant is suffering 9 from 100% permanent disability and there is no chance of improvement in his condition. He treated the claimant since 1990 till 2003. He further stated that such patients loose control over the bladder permanently and that the claimant has also lost skin sensation and, therefore, he would have to take treatment as OPD patient frequently. Even in the cross examination he reiterated that such patient has no chance of recovery in future. 14. It is against this backdrop we have heard learned counsel for the parties at considerable length. Mr.Bhide, learned counsel for the insurance company, at the outset, submitted that the claimant was travelling in the truck as unauthorised/gratuitous passenger. He submitted that even if it is accepted that the claimant was travelling in the truck as owner of the goods or hirer he would not be entitled for compensation in view of the judgment of the Supreme Court in New India Assurance Co. Ltd. Vs. Asha Rani 2000 ACJ 1 (SC). He submitted that the case in hand falls in the category of cases, as carved out by the Supreme Court in Asha Rani’s case, covered by the Motor Vehicles Act, 1988, prior to the amendment of 1994. According to Mr.Bhide, prior to the amendment of 1994, the insurance company was not liable to pay any compensation to the owner/hirer of goods or his authorised agent on being carried in a goods carriage, if it met with an accident causing him bodily injuries. He further submitted that 10 though in the alternative the insurance company, in their written statement, has contended that at the most the claimant would be entitled for compensation to the extent of Rs.20,000/- only, still in view of the judgment in Asha Rani, the claimant is not entitled for compensation even to that extent. He submitted that insurance company, in the present case, did take additional premium, covering the risk of non fare paying passenger, but it was subject to endorsement 14(b). As per the endorsement 14(b), he submitted, on payment of additional premium, the insurance company was obliged to indemnify the insured against his legal liability other than liability under statute in respect of death or bodily injury to any person not being an employee of the insured and not carried for hire or reward provided that the person was charterer of the truck. He then invited our attention to the dictionary meaning of the word “charterer” and submitted that in any case it cannot be stated that the claimant had hired the truck for “exclusive temporary use”. He submitted that in the cross examination, the claimant has clearly stated that he was not the only hirer of the truck and there were two other persons in the truck at the relevant time with their goods. He, therefore, submitted that even thought the additional premium was paid, in the present case, it was subject to the endorsement 14(b). The appellant, who was travelling in the truck, as one of the hirers of the goods in the truck, was, therefore, not covered by the policy. He submitted that looking at the case from 11 any angle the appellant’s claim cannot be allowed. In short, Mr.Bhide submitted that the insurance company would not be liable for paying compensation to the claimant being owner of the goods, in view of the admitted fact that the present case is covered by the Act of 1988, prior to the amendment of 1994. Lastly, he submitted that the omission to file additional written statement, after the amendment of the claim petition, cannot be stated to be fatal since the written statement of the Insurance company, denying their liability was already on record and the denial of the liability was contemplated by section 147 of the Act of 1988, prior to the amendment of 1994, and not as per the clauses of the policy. He, therefore, submitted that even proving the policy in accordance with law, in the present case, was not necessary and the contents of the policy ought to have been read in evidence. In support of his contentions, Mr.Bhide placed reliance upon the following judgments: National Insurance Co. Ltd. Vs. Baljit Kaur and Others 2004 ACJ 428 (SC); National Insurance Co. Ltd. Vs. V.Chinnamma 2004 ACJ 1909 (SC); National Insurance Co. Ltd. Angoribai and Others 2005 ACJ 75 (M.P.); United India Insurance Co. Ltd. Vs. Krishnappa 2008 ACJ 668; and the judgment of this court in Jagannath Vishnu Kore Vs. Kamalabai Maruti Kumbhar and Others 2008 ACJ 691. 15. Mr.Shinde, learned counsel for the respondent-claimant on 12 the other hand submitted that the claimant was not unauthorised or gratuituous passenger in the truck when it met with an accident. He submitted that he boarded the truck with the goods and even at Solapur he was to load salt bags for carrying them to Latur. He, therefore, submitted that his entry in the truck was as owner of the goods and he, therefore, was authorised non fare paying passenger in the truck, as stated by the insurance company in their written statement. Therefore, he submitted that the judgment of the Supreme Court in Asha Rani’s case (supra) would not apply to the facts of the present case. Next he submitted that though the insurance policy was placed on record, it cannot be looked into as an admissible evidence since it was neither exhibited nor the contents thereof were proved. He then submitted, that in view of the admitted position that an additional premium was paid by the insured, the claimant was covered by the policy. He submitted that in any case it cannot be stated that the claimant is either entitled for compensation only to the extent of Rs.20,000/- or was not entitled at all since he was not charterer of the truck. He then submitted that the insurer could always take policies covering risk, which were not covered by requirement of section 147, prior to the amendment of 1994, on paymant of an additional premium. The endorsement 14(b) also cannot be looked into and read in evidence since it is a part of the policy. In the alternative, he submitted that even if it is assumed that the claimant was not carrying any goods 13 when he boarded the truck at Mumbai, the fact that he was to load salt bags at Solapur cannot be overlooked apart from the fact that it was not challenged by the insurance company in their written statement or in cross of the claimant. He submitted that it is true that the claimant in his original claim petition, that was filed in 1992, did not state that he was carrying paper/card board boxes, however, he amended the pleadings and stated that he was carrying the goods with him when the truck met with an accident. This part of the pleadings Mr.Shinde submitted, has not been denied by the insurance company by filing additional written statement and, therefore, deserved to be admitted. He further submitted that there is sufficient material on record to show that when the truck met with an accident the paper/card board boxes were there in the truck. In support of his contentions Mr.Shinde placed reliance upon the following judgments: (i) Pushpabai Purshottam Udeshi and Others. Vs. M/s.Ranjit Ginning and Pressing Co. and Anr. 1977 A.C.J. 343; (ii) Amrit Lal Sood Vs. Kaushalya Devi Thapar 1998 (3) SCC 744; (iii) Nasibdar Suba Fakir Vs. M/s.Adhia and Company and Ors. AIR 1984 Bombay 1; (iv) Vijaylakshmi and Others Vs. Rajasekharan Nair and Anr. 1995 A.C.J. 405 (High Court of Kerala); (v) New India Assurance Co. Ltd. Vs. C.Giramma and Others 2007 A.C.J. 636 (High Court of Andhra Pradesh) and (vi) Chandro Devi and Others Vs. Jit Singh and Others 1989 A.C.J. 41 (High Court of Delhi). 14 16. Before we deal with the questions raised in the appeal we would like to look into some of the judgments relied upon by the learned counsel for the parties. 17. In Asha Rani and Others (supra) the Supreme Court was considering the question whether the insurer is liable to pay compensation to the dependants of the deceased passenger while the deceased passenger was travelling in a goods vehicle and that vehicle met with an accident, on account of which the passenger died or suffered bodily injury. This question was considered in relation to the cases falling in the category of cases which were covered by the Act of 1988, prior to the amendment of 1994. The Supreme Court after considering section 95 of the Motor Vehicles Act, 1939 (for short “the Act of 1939”) so also section 147 of the Motor Vehicles Act, 1988 and section 147 after the Motor Vehicles (Amendment) Act, 1994 i.e. Act of 54 of 1994 (for short “the Amending Act of 1994”) held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle met with an accident and the owner of goods or his representative dies or suffers any bodily injury. It would be advantageous to reproduce the observations made by the Supreme Court in 15 paragraph 9 of the judgment which reads thus: “.... ....9. In Satpal’s case, 2000 ACJ 1 (SC) the court assumed that the provisions of section 95(1) of Motor Vehicles Act, 1939, are identical with section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles (Amendment) Act of 1994 is examined, particularly section 46 of Act 54 of 1994 by which expression “injury to any person” in the original Act stood substituted by the expression “injury to any person, including owner of the goods or his authorised representative carried in the vehicle” the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if widest interpretation is given to the expression “to any person”, it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of section 46 also states that it seeks to amend section 147 to include owner of the goods or his 16 authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression “including owner of the goods or his authorised representative carried in the vehicle” which was added to the pre- existed expression “injury to any person” is either clarificatory or amplification of the pre-existing statute. On the other hand, it clearly demonstrates that the legislature wanted to bring within the sweep of section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this court in Satpal’s case, therefore, must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of the 17 goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury.” (emphasis supplied) 18. In supplemental judgment in Asha Rani and Others (supra) his lordship Mr.Justice S.B.Sinha, in paragraph 28 observed that “if a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid”. It was further observed that if the ratio of this court’s decision in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC) is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefore even no premium is required to be paid.” 19. In Asha Rani’s case (supra) the Supreme Court has clearly held that prior to the Amendment of 1994 it was “not necessary” for the insurer to insure against the owner