· THE HON’BLE SRI JUSTICE GHULAM MOHAMMED +C.R.P. No.4658 of 2003 %30.09.2010 #Mamindla Padma and others. ….Appellants Vs. $ M/s. Kanakadurga Leasing and Finance Limited, rep. by its Managing Director, Vijayawada and others …. Respondents !Counsel for the Appellants: Sri Harender Pershad Counsel for Respondent No. 1:Sri Saigangadhar Chamarty Counsel for Respondent Nos.3 & 4: Sri Naresh Byrapaneni <Gist : >Head Note: ? Cases referred: [1] 2004(1) ALD 98 (SC) 2 AIR 2008 SC 2218 3 2005 ACJ 721 THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.4658 of 2003 JUDGMENT The appellants-claimants filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’) against the award, dated 30.05.2003, passed in M.V.O.P.No.807 of 2000 by the learned II Additional District Judge-cum-Chairman, Motor Accident Claims Tribunal, Warangal (for short ‘the Tribunal’). 2. On 17.07.2000, at an early hours, while the husband of the first claimant, by name M. Uppalaiah, was bringing fish breed in a mini lorry bearing No.AP 10 U 1522 from Kothapet to Palakurthy village and when it reached Veeravelli village, its driver drove it in a rash and negligent manner and dashed a stationed lorry bearing No.AP 16 U 3456, as a result of which, all the inmates of the mini lorry sustained injuries and the said Uppalaiah succumbed to those injuries. The claimants being wife, minor son and parents of the deceased Uppalaiah filed O.P.No.807 of 2000 claiming compensation of Rs.3,00,000/-against respondent Nos.1 to 4 being owner, driver and insurers respectively, of the crime vehicle. Respondent No.4 filed written statement denying the allegations made in the claim petition. By the award impugned, the Tribunal awarded compensation of Rs.2,16,000/- payable by respondent Nos.1 and 2 jointly and severally with proportionate costs and interest at 9% per annum from the date of the petition till the date of realisation. For non-fastening the liability on respondent Nos.3 and 4-insurance company and for enhancement of the compensation, the appellants-claimants filed the present appeal. 3. Heard the learned counsel for the appellants and the learned counsel for respondent Nos.3 and 4. 4. Sri K.L.N.Rao, learned counsel has argued as amicus curiae and contended that though the deceased Uppalaiah was travelling along with the goods i.e., fish breed, in a goods carriage vehicle, the Tribunal erred in holding that the insurance company does not cover the risk of owner of the goods. He relied on the judgment of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED v. BALJIT KAUR[1], wherein the Apex Court directed the insurance company to pay compensation to the claimant and recover the same by initiating a proceeding before the executing Court, without even filing a suit against the owner and the relevant portion is as under: “By reason of the 1994 Amendment what was added is ‘including the owner of the goods or his authorised representative carried in the vehicle’. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words ‘any person’ occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression ‘any person’ contained in sub-clause (i) of clause (b) of sub-section (1) of section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. The observations made in this connection by the Court in New India Assurance Company Ltd., v. Asha Rani (2003) 2 SCC 223) are as under: “In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words ‘any person’ must also be attributed having regard to the context in which they have been used i.e., ‘a third party’. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. In Asha Rani (supra), it has been noticed that sub- clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 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. “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 decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be sub-served 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 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 inasmuch as can be resolved by the Tribunal in such a proceedings”. Learned counsel has also relied upon the judgment of the Apex Court in ORIENTAL INSURANCE COMPANY v. ZAHARULNISHA[2] wherein it was held as under: “In the result, the appeal is allowed to the limited extent and it is directed that the appellant-insurance company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz, respondent No.8 particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Company Limited v. Baljit Kaur and others (2004) 2 SCC 1 and Deddappa and others v. Branch Manager, National Insurance Company Ltd., (2008) 2 SCC 595)”. 5. On the other hand, learned counsel for respondent Nos.3 and 4-insurance company contended that before 06.01.2004 i.e., the date of judgment in Baljit Kaur’s case (1 supra), the insurance company is not liable to pay compensation and that after the said judgment only, the principle of pay and recovery came into existence and that as the accident occurred in 2000, the insurance company is not liable to pay compensation to the claimants. He further contended that the claimants are entitled to recover the amount of compensation from the owner of the vehicle and in support of his contention, he relied on the judgment of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED v. BOMMITHI SUBBHAYAMMA[3] wherein it was held as under: “The question again came up for consideration before a 3-Judge Bench of this Court in National Insurance Company Ltd., v. Baljit Kaur 2004 ACJ 428 (SC), wherein upon considering the effect of amendment carried out in Section 147 of the Motor Vehicles Act, 1988 by Motor Vehicles (Amendment) Act, 1994, it was opined: “By reason of the 1994 amendment what was added is, ‘including owner of the goods or his authorised representative carried in the vehicle’. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words ‘any person’ occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of Parliament to carry out an amendment inasmuch as the expression ‘any person’ contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. The observations made in this connection by the Court in Asha Rani, 2003 ACJ 1 (SC), are as under: In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words ‘any person’ must also be attributed having regard to the context in which they have been used, i..e, a ‘third party’. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable thereof. In Asha Rani, 2003 ACJ 1 (SC), it has been noticed that sub-clause (i) of Clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods for his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 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 authorised representative remains the same. Although the owner of the goods or his authorised 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”. The same view was reiterated in National Insurance Company Ltd., v. Challa Bharathamma, 2004 ACJ 2094(SC) Pramod Kumar Agrawal v. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Company Limited v. V. Chinnamma, 2004 ACJ 1909 (SC). In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained, which is set aside accordingly. This appeal is allowed. We, however, make it clear that the claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Accidents Claims Tribunal from the owner of the vehicle. No costs”. Learned counsel further contended that prior to 01.07.1989 in case a person/passenger is owner of the goods, the insurance company is not liable to pay compensation, but, by the amendment made to the Motor Vehicles Act from 14.11.1994, the words ‘owner of the goods or his authorized representative carried in the vehicle’ were included and as such, from 14.11.1994, if the injured/deceased is the owner of the goods, the insurance company is liable to pay compensation irrespective of collection of premium and for a passenger, there is no liability and that as the deceased Uppalaiah was travelling as an unauthorized passenger in a goods vehicle, and not as owner of the goods, the insurance company is not liable to pay compensation. 6. Answering to these contentions, Sri K.L.N.Rao, learned Amicus Curiae, submitted that though the Apex Court in Bommithi Subbhayamma’s case (3 supra) referred to the judgment of a three-Judge Bench in Baljit Kaur’s case (1 supra), it did not clarify the liability of insurance company to pay compensation and that as the judgment in Bommithi Subbhayamma’s case is only on a review petition, it is not applicable to the facts of the present case. He also submitted that as P.Ws.1 and 2 have categorically stated that the deceased Uppalaiah was travelling along with the goods i.e., fish breed, in the crime vehicle at the time of accident, the insurance company is liable to pay compensation to the claimants. 7. There is no dispute as regards the rash and negligent driving of the driver of the crime vehicle. The dispute is with regard to non-fastening the liability on respondent Nos.3 and 4-insurance company. P.W.1, the wife of the deceased, stated in her evidence that on 15.07.2000, her husband late Uppalaiah and others went to Kothapeta of Krishna District, where they purchased fish breed worth Rs.30,000/- and loaded the same in a mini lorry bearing No.AP 10 U 1522, which met with an accident on return journey and her husband died while undergoing treatment. She also stated that they were bringing the said fish breed to Palakurthy to pour them in the village tank and other adjacent village tanks in order to grow them. P.W.2, the co-injured, stated that himself and the deceased Uppalaiah were the members of the Fishermen Society of their village and that every year, they used to purchase the fish breed from Machilipatnam, East Godavari, Vishakapatnam District and used to pour them in the tanks in rainy season in order to grow them and that on 15.07.2000 himself, deceased and another person went to Kothapeta of Krishna District and purchased the fish breed worth Rs.30,000/- and loaded the same in the crime vehicle. Ex.A8 is the certificate issued by Fisheries Co-operative Society, Palakurthy, Ex.A9 is the certificate issued by Gramapanchayat, Palakurthy, Ex.A10 is the Railway Ticket and Ex.A11 is the receipt issued by Grain Market, Kothapeta. The Tribunal observed that Exs.A5,A6,A8, A10 and A11 show that the deceased Uppalaiah was a member of Fishermen Co-operative Society, Palakurthy and he purchased fish breed at Kothapet and while bringing the same, he met with an accident. Therefore, as per oral and documentary evidence, the deceased Uppalaiah was travelling along with the goods at the time of accident. To rebut the evidence of P.Ws.1 and 2, Respondent Nos.3 and 4-Insurance company have neither adduced any evidence nor elicited from their cross-examination that the deceased was an unauthorized passenger in a goods vehicle at the time of accident, except suggesting that the accident occurred due to overload of the vehicle and that the deceased boarded the vehicle as against the rules. 8. Insofar as enhancement of compensation is concerned, this Court is of the view that the Tribunal awarded just and reasonable compensation of Rs.2,16,000/- under all the heads and there is no need to interfere with the same. 9. In view of the above and following the judgment of the Apex Court in Baljit Kaur’s case (1 supra), respondent Nos.3 and 4- Insurance company are directed to pay compensation to the claimants and recover the same from the owner of the crime vehicle. Accordingly, the Civil Miscellaneous appeal is allowed in part. No costs. _____________________ GHULAM MOHAMMED, J Date:30.09.2010 sj [1] 2004(1) ALD 98 (SC) [2] AIR 2008 SC 2218 [3] 2005 ACJ 721