THE HON’BLE SRI JUSTICE C.V. RAMULU C.M.A. No. 466 of 2003 JUDGMENT: This civil miscellaneous appeal, under Section 173 of the Motor Vehicles Act, is directed against an order and decree made in M.V.O.P. No. 266 of 1998 dated 7.12.2001 on the file of learned Motor Accidents Claims Tribunal-cum-learned IV Additional District Judge, East Godavari District at Kakinada. Appellant is the National Insurance Company. Respondents 1 to 4 are the claimants. Respondent No.5 is the driver of the vehicle – AAH 2855. Respondent No. 6 is the owner of the said vehicle. Respondent No.7 is the driver of Lorry No. AP 3 T 8668. For the purpose of convenience, parties are referred to, as arrayed in the O.P. It appears, petitioners filed O.P., claiming compensation of Rs.1,25,000/- towards loss of earning capacity, consortium, mental agony, love and affection and other expenses incurred, such as, funeral expenses etc. for the untimely death of Musalaiah, husband of 1st petitioner and father of petitioners 2 to 4, in an accident that occurred on 5.4.1993. It is their case that the deceased Musalaiah used to carry on onion business in Sankavaram village. He used to bring onions from wholesale dealers from Rajahmundry and sell them in retail and from the earnings of the said business, he used to maintain the entire family. He was the sole bread winner and was earning Rs.2,500/- per month. On the date of incident, deceased Musalaiah was bringing onions in Lorry bearing No. AHH 2855 from Rajahmundry to Sankavaram. While the lorry was coming to Sankavaram, at about 2.00 p.m., due to rash and negligent driving by respondent No.1 – lorry driver, in between Chinnampeta and Yerravaram village, the lorry dashed another lorry bearing No. AP 3 T 8668 coming in opposite direction. Due to the said accident, Musalaiah received grievous multiple injuries. Though he was shifted to Government Hospital, Yeleswaram, he ultimately succumbed to injuries. The Police, Yeleswaram registered a case in Cr.No.26 of 1993 under Section 338 IPC against 1st respondent – driver of lorry bearing No. AHH 2855 and subsequently altered the section of law against him, to Section 304-A IPC. Contending that 1st respondent is the driver of the vehicle No. AHH 2855, 2nd respondent is its owner and 3rd respondent is the Insurer of the said lorry and, therefore, they are jointly and vicariously liable to pay compensation, petitioners filed O.P. claiming compensation against them. However, driver, owner and insurer of Lorry No. AP 3 T 8668 were also shown as respondents 4 to 6 in the said O.P. R-1 and R-2 remained ex parte and the O.P. was dismissed against R-4 for non-prosecution. R-5 also remained ex parte. R-3 Insurance Company, with which the Vehicle No. AHH 2855 was insured, filed counter denying the petition averments as to rash and negligent driving on the part of R-1 driver, age of the deceased, health and income of the deceased and holding of valid driving licence by R-1 etc. It was further contended that the Lorry bearing No. AP 3 T 8668 alone contributed for the accident, therefore, respondents 4 to 6 are liable for payment of compensation and, in any case, the amount of compensation claimed by the petitioners is excessive. 6th respondent also filed counter in the same lines, but contended that the 1st respondent – driver of lorry bearing No. AHH 2855 is 100% negligent and he is responsible for causing the accident and R-6 – Insurance Company is not liable for payment of compensation. On the basis of the above, the following issues were framed for trial: 1. Whether the accident took place due to rash and negligent driving of the 1st respondent – driver of Lorry bearing No. AHH 2855? 2. Whether the petitioners are entitled for the compensation, if so, what amount and from which of the respondents? 3. To what relief? In the support of the claim made by the petitioners, PWs 1 and 2 were examined and Exs.A-1 to A-3 were marked. On the other hand, on behalf of the contesting respondents, RWs 1 and 2 were examined and Exs.B-1 and B-2 were marked. On a detailed consideration of the matter, the Tribunal gave finding against Issue No.1 that from the evidence of PW-2 it proves that the accident occurred due to rash and negligent driving of R-1 - driver of Lorry No.AHH 2855, due to which Musalaiah, who was traveling in the said lorry sustained grievous injuries and ultimately succumbed to injuries; therefore, R-1 is responsible for the accident. Against Issue Nos.2 and 3, the Tribunal gave a finding that the claimants are entitled for total compensation of Rs.1,10,500/- for untimely death of Musalaiah. Aggrieved thereby, the present appeal is filed. Learned counsel for the appellant Smt. M. Bhaskara Lakshmi strenuously contended that though the Lorry No. AHH 2885 was insured with the appellant and even if the driver of the said lorry (R-2) is found to be negligent in driving the vehicle and there is a vicarious liability on the part of the owner of the vehicle, the appellant- Insurance Company cannot be saddled with any liability for payment of compensation under the Motor Vehicles Act. Firstly, the deceased was not the owner of the goods. Even assuming that he was the owner of the goods, he is not covered under the Insurance Policy No. 550401/31/92/63/00915. Unless and until the owner of the goods or the person traveling along with the goods is covered under the policy, the appellant-insurance company cannot be made liable to pay compensation. In the instant case, the Court below missed its attention to the fact that unless and until the person traveling along with the goods in the goods vehicle is covered under the policy, he cannot claim any compensation and he would be treated like any gratuitous passenger, since the policy covers, “PA to drivers-2 & cleaner each Rs.50,000/- as per Endorsement No.6 and six coolies” and none others. The deceased Musalaiah can neither be called a coolie traveling in the vehicle nor the driver or the cleaner of the vehicle and, therefore, the policy does not cover such person who was traveling in the transport vehicle. This is a case where, though a valid insurance policy is available, the person who died while traveling in the said lorry is not covered under the policy. Further, the law laid down in New India Assurance Company v. Satpal Singh[1] has been overruled by New India Assurance Company v. Asha Rani[2]. Apart from that, Section 147 of the Motor Vehicles Act has been amended with effect from 1994 and since the accident occurred prior to that, there was no obligation on the part of the owner of the vehicle No. AHH 2855 or the appellant-Insurance Company for covering such passengers traveling in the goods vehicle. In support of her contentions, learned counsel for the appellant relied upon the following decisions: (1) New India Assurance Co. Ltd. v. Vedwati and others[3], wherein it is stated: ( 8 ) IN Satpal Singh's case (supra) this Court proceeded on the footing that provisions of section 95 (1) of the old Act are in pari materia with Section 147 (1) of the Act as it stood prior to the amendment in 1994. ( 9 ) ON a closer reading of the expressions "goods vehicle", "public service vehicle", "state carrier" and "transport vehicle" occurring in Sections 2 (8), 2 (25), 2 (29) and 2 (33) of the old Act with the corresponding provisions i. e. Section 2 (14), 2 (35) 2 (40)and 2 (47) of the Act, it is clear that there are conceptual differences. The provisions read as follows: old Act: "2 (8) "gods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers" "2 (25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage. " "2 (29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:" "2 (33) "transport vehicle" means a public service vehicle or a goods vehicle:" the Act (New Act):' "2 (14) "goods carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods:" "2 (35) "public service vehicles" means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab a motorcab, contract and stage carriage:" " 2 (40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:" "2 (47) "transport vehicle" means a pubic services vehicle a goods carriage an educational institution bus or a private service vehicle:" (Bold for emphasis) ( 10 ) "liability" as defined in Section 145 (c)of the Act reads as follows: "liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140. " ( 11 ) THIRD party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old act and Chapter XI of the Act. Proviso to section 147 of the Act (sic) is to be (sic)with Section 96 of the old Act. Proviso to section 147 of the Act reads as follows: 'provided that a policy shall not be required (i) to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injure sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's compensation Act. 1993 (8 of 1923) in respect of the death of or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicles, or (c) if it is a good carriage, being carried in the vehicle, or (ii) to cover any contractual liability. " ( 12 ) IT is of significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the Act. The same reads as follows:- "except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises. " ( 13 ) THE difference in the language of "goods vehicle" as appears in the old Act and "goods carriage" in the 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 "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" 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”. 2) National Insurance Company Limited v. Prema Devi and others[4], wherein it is held: “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 therefore”. 3) United India Insurance Co. Ltd., Shimla v. Tilak Singh and others[5], wherein it is held: “( 19 ) THE argument that risk pertaining to a third party would extend to a person other than the parties to the insurance contract was raised in New India Assurance Company v. Satpal Singh and others where after contrasting the language of Section 95 (1) of the 1939 Act with the provisions of section 147 (1) of the 1988 Act this Court held: “the result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old vis-a-vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force. " ( 20 ) THE view expressed in Satpal Singh's case (supra) however, has been specifically overruled in the subsequent judgment of a Bench of three judges in New India assurance Company v. Asha Rani And others. In that case the discussion arose in connection with carrying passengers in a goods vehicle. This Court after referring to the terms of Section 147 of the 1988 Act, as contrasted with Section 95 of the 1939 act, held that the judgment in Satpal singh's case (supra) had been incorrectly decided and that the insurer will not be liable to pay compensation”. Whereas, learned counsel for the respondents- claimants supported the Award passed by the Tribunal and contended that when there is an unlimited coverage, mere mention as to two drivers, one cleaner and six coolies has no meaning. Therefore, it must be deemed that the policy covers even the person traveling along with the goods, whether he is an owner or a coolie. Therefore, the contentions raised by the learned counsel for the appellant cannot be countenanced and the appeal is devoid of merit and liable to be dismissed. I have given my earnest consideration to the respective submissions made by the learned counsel appearing on either side and perused the impugned Award and other material made available on record. The only question that falls for consideration in this appeal is whether the Policy No. 550401/31/92/63/00915 against Lorry No. AHH 2885 covers the deceased Musalaiah either as a person traveling along with the goods or as an owner of the goods in a goods transport vehicle? Admittedly, the vehicle bearing No. AHH 2885 is a goods transport vehicle. There is evidence to show that Musalaiah was doing onion business. He was purchasing onions in wholesale market at Rajahmundry and bringing the same to Sankavaram for retail business. The fact that the vehicle bearing No. AHH 2855 met with an accident against lorry bearing No. AP 3 T 8668 in between Chinnampeta and Yerravaram village and the said Musalaiah died in the said accident is not in dispute. On a close examination of the policy, it came to light that it is covered by Endorsement No.14 against which Rs.50/- was paid as premium. Though the policy shows the Endorsement as ‘13’, learned counsel for the appellant, on instructions, stated that this was a mistake and Rs.50/- paid was against endorsement ‘14’, which reads: “Add: For LL to authorized non-fare paying passengera as per END 14. Limit any one passenger – Rs.50/-”. Further, IMT 14 reads as under: “IMP 14 – LEGAL LIABILITY TO NON-FARE PAYING PASSENGERS WHO ARE NOT EMPLOYEES OF THE INSURED In consideration of the payment of an additional premium as stated in the Schedule and notwithstanding anything to the contrary contained in Section II-I(C) it is hereby understood and agreed that, the Company will indemnify the insured against liability and than liability under statute (except Fatal Accident Act, 1855) in respect of death of or bodily injury to any person not being an employee of the insured not carried for hire or reward provided that the person is (a) the Charter or Representative of the Charter of the Truck (b) Any person directly connected with the journey in one form or another being carried in or upon or entering or mounting or alighting from the Motor Vehicle described in the Schedule of the Policy”. Therefore, the stand taken by the learned counsel for the appellant that the deceased was not covered under the policy and no amount was paid against such coverage, is not correct. Once the policy covers one non-fare paying passenger in the goods transport vehicle, it must be deemed that the deceased is covered by Endorsement No.14 of the policy. Therefore, the judgments relied upon by the learned counsel for the appellant, as noticed above, have no application to the facts of the present case. In the facts and circumstances of the case, the deceased cannot be called an unauthorized passenger or a gratuitous passenger. In this case, Endorsement No.14 covers one non-fare paid passenger, who is authorized to travel. The deceased traveled along with his goods. Even otherwise, as one non-fare paid passenger is authorized to travel and is covered by the policy (under Endt. 14), respondent-claimants are entitled for compensation and, therefore, the Tribunal has not committed any error in coming to the conclusion that the respondents- claimants are entitled for compensation as awarded. In the facts and circumstances of the case, I see no reason to interfere with the order and decree passed by the Tribunal in M.V.O.P. No. 266 of 1998 dated 7.12.2001. In the result, the appeal is devoid of merit and liable to be dismissed and accordingly dismissed. No order as to costs. JUSTICE C.V. RAMULU. Date: 7-9-2010. MVB. [1] AIR 2000 SC 335 [2] (2003) 2 SCC 223 [3] 2007 (9) SCC 486 [4] (2008) 5 SCC 403 [5] (2006) 4 SCC 404