IGH COURT OF CHHA‘I'I'ISGARH AT BILASPUR M. A.NO.223 OF 2004 APPELLANT Branh Manager Unh‘ed India Insurance ompany-imi'red, Raigarh. c , CL REsPONDENTs Sewa Bai .ofer's . &h Branch vManager', United ndia Insurance Company’Limifed, Raigar‘h. M. A.NO. 224‘OF 2004 PPELLANT Vs RS ' ESPONDENT Sanjh Kumar' & oTher‘s M. A.NO.225 of 2004 APPELLANT Te United H Insurance ‘Company Limi’red‘, Raiga’r'h. VS ESPONDE ~Bhagwa‘ri‘ Bai & others RNTS M. A.NO.22 of~ 200 PPELLANT 6 4 anch Manager, Und India InEnance Compan Lfd., Raigarh. Dilaso Bai and o'’rher's Vs /7 PO$T FOR PRONOUNCEMENT‘OF JUDGMENT: 10/2007 a d/- Dhirendra Mishra “N Judge H Vs I A f h Br i‘re G y A RESPONDENTS 1 lx i S " HIGH COURT OF CHHA'I'HSGARH AT BILASPUR M. A.NO.223 OF 2004 APPELLANT Branch Manager, Unifed India Insurance Company Limited, Branch Office, Opposi’re Gopi Talkies, Raigarh (C.G.) Vs RESPONDENTs 1.5ewa Bai, widow of Barn? Ram, aged 22 year's, R/o Village Gersa, P.S. Dhar‘amjaigar‘h. 2. Minor Par‘waTi, Do Lafe Bar‘aT Ram ’rhrough na’rur'al guardian moTher Sewa Bai widow of Baraf Ram. Bofh are R/o Village Gerso, Tahsil Dharamjaigarh, Disff. Raigarh (C.G.) Claimanfs/Agplicanf No.1 & 2 3. Anup Kumar Agorwal, son of Kishan Agarwal, Occupafion- Vehicle Owner, Bazarpara, Paffhalgaon, Dis’rricf Jashpurnagar. 4. Chain Singh, son of Roop Sai Sidar, aged about 35 years, Occupation— Driver, R/o Paffhalgaon, District Jashpurnogar‘. Non-applicants No.1 & 2 M. A.NO.224 OF 2004 APPELLANT Branch Manager, United India Insurance Company Limited, Branch Office, Opposite Gopi Talkies, Raigorh (C.G.) Vs RESPONDENTS 1. Sanjh Kumar, widow of Lagin Singh, aged 22 years. 2. Madho Ram son of Pitar‘ Sidar, aged 55 years. 3. Melo Bai, wife of Madho Ram, aged 50 years. ‘ AH residents of Viliage Gersa, Tah. Dharamjaigarh, Distt. Raigarh (C.6.) Applicants/Claimants No.1 to 3 4.Anup Kumar Agarwal, son of Kishan Agarwal, Occupation— Vehicle Owner, Bazarpara, Patthalgaon, District Jashpurnagar. 5. Chain Singh, son of Roop Sai Sidar, aged about 35 years, Occupation- Driver, R/o Patthalgaon, District Jashpurnagar. Non-applicants No.1 & 2 / APPELLANT APPELLANT RESPONDENTS MA A‘No.225 of 2004i ' The United Insurdhg'e' Company’L‘i‘mi'red, Local Branch Office: Thé United India Insurance Company Lfd infronT of Gopj Talkies Ralgar‘h (CG) Vs 1. Bhagwah Bal wudow of Laxmlnar'ayan alias Nar‘ayan aged abou’r 34 year‘s ‘ Mlnor Shakunfakl D/o LaTe Laxmlnar'ayan @ Narayan aged about 15 years Mmor Balram S/o Lafe Laxmlnar‘ayan @ Narayan aged abou’r 10 years Minor savm‘l D/o Lafe Laxmmar'ayan alias Narayan aged abou’r 7 years No 2 To 4 Through nafural guardian mother MST Bhagwafl Bal All W are ”Wesuden‘rs of? Puram Bash, Paf’rhalgaon Tah‘ Pa’rfhalg‘aon' Dis‘r’r. Jashpurnagar lalman’rs/appllcan'r No 1 o 4 Anup Kumar Agrawal Son of Shrl Kishan Agrawal Occupafuon Vehicle owner Resnden‘r of Bazarpara Pa‘rfhalgaon D's‘r’r Jashpur 6. Cham Slngh son of AnJana Sldar Occupation — , Driver ReSIdenf of Bazarpara V P‘a’rfhalgaon Tahsil af’rhaigaon Dlsf’r Jashpur l Non applicant No 1 & 2 2. M A NO 226 of 2004 Eranch Manager UnlTed India Insurance Company L’rd Branch Office OppOSi’re Gopi Taikies, Raigarh (6.6.) Vs 1. Dilaso Bai Widow ofMadan Singh (died) Mahra Ram son of Bufuram Rai‘hiya aged 50 years ReSidenTs of Gersa TahSII DharamJaigarh Disf’r Raigarh (C G) APP'I ICANT/CLAIMANT Anup Kumar Agrawal son of shri Kishan Agrawal y Occupafion —Vehicle owner Bazarpara Patfhalgaon Disff Jashpurnagar Chain Singh Sidar Son of Roop Sai Sidar aged abou’r 35 years Occupafion- Driver R/o.’ Pa’rfhalgaon, Dis’rf. Jashpurnagar. Nbn—apghcan‘r No.1 & 2 RESPONDENTS m ' Presan’r: ‘ Mr‘. H.B. Agarwal, Sr. Advocafe wi‘rh Mr. Pankaj Agarwal, Advocafe for ’rhe appellanf in all the appeals. None for responden‘rs/claiman’rs & driver in all fhe appeals. Mr. Sanjay Agarwal wi’rh Mr. R. Pradhan, Advocate for responden‘r-Anup Kumar Agarwal in all The appeals. J U D G M E N T (Delivered on Io /07/2007) Dhirendra Mishra, J 1) Mise. Appeal No.223/O4 arising out of Claim Case No.34/02 be’rween Seva Bai & ano’rher Vs. Anup Agarwal & o’rhers; Misc. Appeal No.224/O4 arising ou‘l of Claim Case No.37/02 be’rween Sanjhkunwar and o‘rhers Vs. Anup Agarwal and others: Misc. Appeal No.225/04 arising oa‘l of Claim Case No.36/O2 befween Bhagwa’ri Bai and others Vs. Anup Agarwal and ofhers; Misc. Appeal No.226/04 arising ouf of Claim Case No.33/02 be’rween Dilaso Bai Vs.'Anup Agarwal and ofhers are being disposed of by This common judgment as all fhese appeals are direc’red agains’r The claim caSes arising ouf of The accident dated 1.10.1998 involving truck bearing registration number MP26eD-4674, owned by respondent—Anup Kumar Agarwal, driven by respondent— Chain Singh Sidar/ & insured by the appellant herein for the relevant period and the same also involves a common question of law whether the appellant can be held liable for making payment of compensation for passengers traveling in the goods carriage vehicle being the gratuitous passengers. 2) Facts necessary for adJudIcation of these appeals are that on 1 10 1998 at about 8 30 p m respondent Chain Singh drlvmg the truck bearing registration number MP26-D-4674, owned by respondent Anup Kumar Agarwal and insured by the appellant herein, met with an accident near Aamapali, while he was going to Dharamjaigarh from ersa. The truck was carrying limestone. Nine persans were traveling s _, G in The said ‘Truck in addition f0 'rhe driver and cleaner namely Laxminar‘ayan. In ’rhis accident Bar'af Ram, Madan Singh, Lagin Singh & Laxminarayan, cleaner of The vehicle,‘ died. Legal heirs of all These four deceased persons filed separa're applications for compensafion. The Claims Tribunal in Claim Case No.33/02 awarded a sum of Rs.1,75,000/- for The deafh'of Madan Singh; in Claim Case No.34/02 awarded a sum of Rs.1,75,000/— for The deafh of Baraf Ram; in Claim Case No.36/02 awarded a sum of Rs.1,46,000/— for The deaTh of Laxminarayan, cleaner of offending vehicle and in Claim Case No. 37/02 awarded a sum of Rs.1,75,000/- for The deaTh of Lagin Singh wiTh inTeresT @9‘7o from The daTe of The applicaTion. Owner, driver and The appellanT-insurance company were held joinTly and severally liable for saTisfying The impugned award. 3) OnThe basis ofrThe pleadings of respecTive parTies in all The four claim cases aparT from oTher issues, IssueNo.3 6i 4 were framed as under;- “3. WheTher on The daTe of accidenT on 1.10.1998 non- applicanT (Driver) did noT possess The Valid'and effecTive driving license, if yes, iTs effecT? 4. WheTher aT The Time of accidenT The vehicle was being used in breach of insurance policy condiTions, if yes, iTs effecT?" 4) ‘ The Claims Tribunal by The impugned award has decided The above issues wiTh a finding ThaT The vehicle was insured‘vide insurance policy Ex.D-1 and as per Terms of The policy The risk of six persons was covered. Placing reliance upon The judgmenT of The Hon’ble Apex CourT in The maTTer of ’Na'Tional InsUrance Co LTq Vs SaTpal Smgh reporTed In AIR 2000 SC 235 (Himachal Pradesh) IT has been held ThaT In case of IImITed passengers Traveling free as per' condITion' V of The policy, Then The same cannoT be Termed as breach of policy / condifion and since The risk of six persons was covered, fherefore, insurance company is responsible To satisfy ’rhe award. 5) Learned counsel for The appelIanT submits ’rha‘r from The evidence available on record iT is evident that the vehicle in question was a goods carriage vehicle and at the time of accident deceased persons were traveling in the said vehicle as gratuitous passengers. As per insurance policy of Ex.D-1 risk coverage was only available to 1+1+4 persons employed in connection with the operation, maintenance and . unloadingof the motor vehicle, whereas, the deceased persons namely Bar'at Ram, Lagin Singh & Madan Singh were traveling in the said vehicle as gratuitous passengers and only deceased Laxminarayan was employed in the said vehicle as ‘cleaner'. Placing reliance in the matter of New India Assurance Co. Ltd. Vs. Asha Rani and others reported in 2003 (2) SCC 223 it is submitted that judgment relied upon by learned claims tribunal in the matter of Satpal Singh (supra) has’been overruled. 6) Reliance is placed in the matters of Pramod Kumar Agarwal Vs. Mushtari Begum (5mt.) and others reported in 2004 (8) SCC 667 & Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy and others reported in AIR 2003 Supreme Court 1009 and it is contended that carrying passengers for transportation is not contemplated under the Motor Vehicles Act, 1988 (for short 'the Act’) and therefore, the 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 insurance company is not liable therefor. 7) On the other hand, learned counsel for the respondent-owner submitted that the deceased persons were traveling in the said vehicle as labourers for the purpose of unloading the vehicle. The owner had categorically instructed the driver not to allow passengers in 'the truck, therefore, if passengers were allowed by the driver that was without permission and against the spec/ificinstructitmig/nd in s sejc i hf heWas Vany brh Thecir'cumsfanes f cannof be termed #a fer eac of olicy codi by ‘rhe ired. Reliac is ple o “ ?‘rers of Raes ur Naional Insurance Co Ltd’ r‘’ A 2001 ew In surance Compan V a repred IR Supre or-1’ 25 ad ar or e s I have her lened counsel f Th partie F pl pm m The aum phhon n‘ Is seen fhar rom 'rhe erusa of leadgs cl es ‘ legal represenfaes he deceased person have claed a of The s T 'he eceed rsons were engag boure. I T said hie f uldin ods xcep In Claim o 36/0 wherin If pdd f d Lammarya s d I h sid hicl a Car Slh who has m W 1 I im Case o 32 h f I is cros xaaon fhaf n all e assengers wer frlg n The rado no fare was charged y fhe clne T ere gg To Drarh for nesg uerr houg nsra wo as been aed as AW- f cl en, as‘a Tad a The river end Th Th urpse nlng The gods buT considern The leadins of Thci , IR filed and proved by claimanTs Themselves as Ex.P42 ‘Wher‘ein ,iT’Tisr-menTioned ThaT They were going from Gersa To Dharamjaigarh for 'wiTnessing v Dusherra and fare @ Rs 10/v per passenger was recovered by The cleaner Laxmmarayan sTaTemenT of Banshlram (AW 3) cannoT be accepTed. 10) So far as The submission on behalf of The ‘oWner 'Tha'T'driver carried passengers disregarding his expressed msTrucTIons Is concerned The - owner has noT averred abouT any InsTrucTIon given by him To his driver In This regard on The conTrary, in The reply, facTs deposed In The clalm peTITIon has been denied The aCCIdenT d deaTh of deceased persons In The said aCCIdenT has also been denied and IT has been l sTaTed ThaT a false criminal case has been regIsTered agaInsT The driver Thus In The absence of pleadmgs The dience Taken by The flv of f s nof im m ny pefmon haT 1 das pe ed as lar n he vecl or noag fhe go ef Case N 2 e has been leae ha‘t decease xn wa engage n Te a vee s lene Moan ng examed as A n Cla N 4/0 as sfaed n Para-1 of h s emmh I nin p e avelm I said ma‘r b ear and hey W om hamJaIga Wlfsm Dsha Th Bahlm h h exmm 3 In hls aim. pTITIo hlso sTe ThT d‘had gage em for e po of uoadi o ig pg el‘am peTi‘Tions F y l p ni‘ron nsu ne acd n ”the ma mh Kma Vs t ep‘br‘fed in IR S C 3363 & N dia As y s Safpl Sungh or’ In A 2000 em Cu 3 respondenf-owner' in his s’rafemem‘ on oath before this Court is clearly an affer’rhough’r and The same canno’r be accepfed. So far as The judgmenfs ci’red by learned counsel for ’rhe responden’r owner is concerned, since the iow laid down in fhe ma’r’rer of Safpol Singh (supra) has already been overruled by The Larger Bench of Hon’ble Supreme Cour? and ‘rhe impugned award was passed placing reliance on The overruled judgmen’r of fhe Hon’ble Supreme Courf, Therefore, furTher reliance on The overruled judgmenT is uhTenabie. 11) From The evidence available on record iT would be evidenT ThaT The deceased BaraT Ram, Madan Singh 6i Lagin Singh were Traveling in The vehicle as graTuiTous passengers, whereas, deceased Laxminarayan was engaged as Cleaner (khalasi) of The Truck. From perusal of The insurance policy iT is esTablished ThaT The policy was valid for a period from 2.9.1998 To 1.9.1999 and addiTional premium was paid by The owner To cover The risk of persons employed in connecTion wiTh The operaTion and/or mainTaining and/or unloading of The moTor vehicle i.e. 1+1+4. Thus, risk for The driver, cleaner and four labourers engaged for unloading was covered. 12) In The Asha Rani's case iT has been held ThaT: “If The MoTor Vehicles AmendmenT AcT of 1994 is examined, parTicularly SecTion 46 of AcT 54 of 1994 by which The 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 auThorized represenTaTive carried in The vehicle", The conclusion is irresisTible ThaT prior To The aforesaid amendmenT AcT of 1994, even if The widesT inTerpreTaTion is given To The expression "To anya person" iT will .noT cover eiTher The owner of The goods or his auThorized represenTaTive'being carried in The vehicle. The objecTs and reasons of Clause 46 also sTaTe ThaT iT seeks To amend SecTion 147 To include owner of The goods or his auThorized represenTaTive carried in The vehicle for The EH ’1‘ s / / rpose f ait The Insuance VPo\ly. Alotigh se’rime s is s ‘re l by a of amplificat and cldriafn f an inhere osion which is 1‘here in ’rhe sfui‘u’re ing a lai meaning To ’rhe‘ wo e ‘ s r‘d r o i‘l sds bn T r enr 4 b in h b and afre e d p s sie ro cst ih e, e W o ’r g p ried he dded to te pre-exisg expreion “injury to any person" either crificaory or amplification of he re-existing tatute. he oher hand it learly etrates that the lgislare ed to bring within the sweep of Sectin 147 and ma compulsary or the inse o insure even in case ‘ o vehicle, the wner of the gods or hi authorized repesenative being rried in a goods e the vehi h aident and the owner of the oods or his repretative eter dies r suers odily injury. Therefo, s held a in respect f case Uner Sction 147 rio t i amendment in 14, the isurer not b labe fo pa t r o gods r il r ying compensation o the owne f the o o hi ue presentativ on beig cared in a goods vehiclen hat vhl me wih an accident an the owner of the goods or his representative dies or suffers any bodily injury”. 13) In the matter of Devireddy Konda Reddy (Supra) the Hon’ble Apex Court in paragraph 11 of the judgment has held thus; “11.‘the inevitable conclusionptherefore, is that provisions of'the Act do not enjoin any statutory liability on .the owner of the vehicle‘to get his vehicle insured for any i/ \ i 7/ pus o libily under r ic ’rh oms Thi leglafu’re amend h aw wy ionn ficio o m pfi , buf giv pn rds usd in The sfaru’re, a i‘sfoo prio t s amendmen’r of 1994, and as if Tan susequet o i’s amendm’ in 199 and earing mind fe ojec'rs reasons engr’d in +h amened rovisions, H i no‘r posbl ’ onrue af ‘rh xpression "including oner f h'e oods or his authorized rereSentative car in the veicl" which was a h tin ss is lat t p s On t t c dmons etu want o ke it f urr t f a goods o o s rt ca vehicle whn cle met wit an cc g sen ih o ff b re it i tht o s d e pr o ts 99 n will e s athorizd ree n ri e‘Wh t eice ets t d wO passenger fraveling in a goods carriage and The insurer would have no liabiliTy therefore." 14) In fhe maffer- of Pramod Kumar' Agrawal (Supra) also judgmen’rs cited above have been referred wi’rh approval and if has been held Thai “if was no’r The infen’rion of fheiegisiafure To provide for ’rhe liability of The insurer wiTh respecT To The passengers, especially graTuiTous I passengers, who are neiTher conTemplaTed aT The Time The conTracT of insurance was enTered inTo, nor was any premium paid To The exTenT of The benefiT' of insurance To such caTegory of people’ and The judgmenT in The maTTer of SaTpaI Singh (supra) sTands overruled. . 15) In The lighT of The binding judgmenfs of The Hon'blesSupreme CourT, as menTioned hereinabove, I am of The considered opinion ThaT The findings of The claims Tribunal in Claim Case No.34/02 beTween Seva Bai and anoTher Vs. Anup Agarwal and oThers (MA. No.223/04); Claim .Cas‘e ,Nq.37/02 befween Sanjhkunwar and others Vs. Anup Agarwal and oThers (M.A. No.224/O4) & Claim Case No.33/02 beTween Dilaso Bai Vs. Anup Agarwal and oThers (MA. No.226/04) cannoT be susTained and accordingly, iT is held ThaT The appellanT insurer is noT liable To make The paymenT of compensaTion and iT was The owner who has To make The paymenT of awarded amounT. Therefore, relying on The judgmenTs of The Hon’ble Supreme CourT in The maTTers of Pramod Kumar Agarwal (supra) and NaTionaI Insurance Co. LTd. Vs. BaljiT Kaur reporTed in (2004) 2 SCC 1, This CourT direcT Thus:- ‘The insurer shall pay The quanTum of compensafion fixed by The Tribunal, abouT which There was no dispuTe raised, To The respondenT claimanTs wiThin Two monThs from Today. For The purpose of recovering The same from The owner The insurer shall noT‘be required To file a suiT. IT may iniTiaTe a proceeding before The execuTing courT concerned as if The .dispuTe beTween The insurer and The owner was The subjecT- maTTer of deTerminaTion before The Tribunal and The issue is l decided againsT The owner and in favour of The insurer. The s / / 77 offending vehicle shall bé af’rached, as a part of ’rhe security. If necessify arises, The execufin‘g court shall Take assistance of frhe R'egional Transpor’r AuThor‘i’ry concerned. IThe executing courf shall pass appropride orders in accordance with law asio ’rhe manner in which fhe owner 0f vehicle i.e. respondenT Anup Kumar Agarwal shall make 'paymen’r ’ro The insurer. In case There is any defauIT, iT shall be open To. The execuTing courT To direcT realizaTion by disposal of any oTher properTy or properTies of The owner of The vehicle. 16) However, The finding of The claims Tribunal in Claim Case No.36/2002 (M.A.No.225/O4) arising ouT of The deaTh of Laxminarayan, is proper, as in The above case The claimanTs are The legal .represenTaTives of deceased Laxminarayan, who was engaged as Cleaner in The offending Truck and The insurance policy coVers‘ The ‘risk of The employee employed in connecTion WiTh ma’in‘Tenance and operaTion of The vehicle, ' Therefore, The risk of deaTh of Laxminarayan 'was duly covered and accordingly, The appeal i.e.‘ ‘M.A. No.225/04 filed againsT The award passed in Claim Case No.36/02 is hereby dismisSed. 17) In The resulT, M.A. No.223/04, M.A.No.224/O4. & M.A. No.226/04 are r parTly allowed and The awards passed in These'appeals are modified, as above. However, The M.A. No.225/04 filed againsT The award J Sd/— Dhirendra Mishra Judge i ’F l / l. daied 20.10.2003 as hereby dismissed. l Roshan/- Veiled