IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.297/1998 (Prem Chand & anr. VS. Mushtaq Hussain & ors.) Date of order : 23.3.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Dhanesh Saraswat for Mr. Ravi Bhansali, for the appellants. Mr. R.K. Mehta & Mr. Ravi Panwar for Mr. Rajesh Panwar, for the respondents. BY THE COURT.- This is a miscellaneous appeal filed by claimants under Section 173 of the Motor Vehicles Act (For short called 'the Act') against an award dated 17.09.1997 passed by MACT, Bhilwara in Claim Case No.278/1993. 2. By impugned order, the Tribunal partly allowed the claim petition of claimants filed under Section 166 of the Act and awarded a total sum of Rs.55,000/- to them for the death of a minor girl by name – Bhalu aged 7 years, who died in vehicular accident. However, the claim petition was dismissed as against the Insurance Company, which has given rise to filing of this appeal by claimants. 3. Facts of the case are these. 4. On 26.5.1993, Madan Lal boarded a truck No. MBE 355 along with her minor daughter “Bhalu” for going to attend some religious function at a place called “Devali” and claimed to have paid 1 some money to a driver of truck for this ride to reach to a nearby village. It is the case of claimants that driver of truck was driving the truck very fast and due to his negligence, the truck lost his balance and met with an accident. In this accident, Bhalu i.e. his daughter died which gave rise to filing of the claim petition under Section 166 of the Act by his legal representatives against the non-applicants, i.e. owner, driver and insurer of the offending vehicle (truck). 5. In this case, the defense of Insurance Company was one. According to them, since victim was traveling in the goods vehicle as gratuitous passengers and hence, no liability could be fastened of any nature so far as Insurance Company was concerned. In other words, the defense of Insurance Company was that the victim was not travelling in the goods vehicle for the safety of her goods, nor she had hired the offending vehicle for carrying her goods and hence, Insurance Company can not be held liable to indemnify the risk of such gratuitous passenger. It is this issue which was gone into alongwith other issues on facts. Parties led evidence. However, the Tribunal by impugned award allowed the claim petition in part. It was held that the accident in question occurred on account of rash and negligent driving of driver who was driving the offending vehicle. It was held that Insurance Company is not liable to pay any compensation because the deceased was held travelling as a gratuitous passenger in the truck. Accordingly, the impugned award was passed by the Tribunal against the owner and driver of truck whereas Insurance Company was exonerated from the liability arising out of accident. It is against this award, the claimants alone have come up in appeal. 2 6. Submission of learned counsel for the appellant was that firstly Tribunal erred in exonerating the Insurance Company from the liability and secondly the award of Rs.55,000/- was on lower side and has to be enhanced so as to make it reasonable and just. 7. Submission of learned counsel for the insurance Company in reply was one. According to learned counsel, law on the question involved in appeal no longer remains res integra and is settled by the authoritative pronouncement of Supreme Court in the case of National Insurance Company vs. Baljit Kaur and others 2004 ACJ 428. Learned counsel pointed out that Tribunal was bound to decide the issue against the Insurance Company because at that time the law was against the Insurance Company in view of decision rendered by the Supreme Court in the case of New India Assurance vs. Satpal (2000) ACJ I (SC). It was his submission that the view taken by the Supreme Court in Satpal was later overruled by Supreme Court in the case of Baljit (supra). Learned counsel maintained that henceforth, it is the law laid down in Baljit that governs the field for deciding the issue involved. Learned counsel pointed out that the evidence tendered by the claimants themselves show that the victim was traveling in the goods vehicle as gratuitous passengers and hence, in the light of law laid down in the case of Baljit (supra), no liability can be fastened on the insurance Company. 8. Having heard learned counsel for the parties and having perused record of the case, I am inclined to dismiss the appeal. 9. As rightly urged by the learned counsel for the respondent (insurance company), the law on the issue involved no longer remains res integra. It is now settled by the authoritative 3 pronouncement of Supreme Court in the case of Baljit (supra). This is what the issue that fell for consideration in Baljit :- “The question that arises for consideration in these appeals is whether an insurance policy in respect of a goods vehicle would also cover gratuitous passengers, in view of the legislative amendment in 1994 to Section 147 of Motor Vehicles Act, 1988.” 10. After examining the earlier decision on the issue and overruling Satpal supra in Asharani’s case, their Lordships held as follows :- “20. 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. 21. 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 4 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, 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 subserved 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 direction having regard to the scope and purport of section 168 of the Motor Vehicles 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 proceeding. 22. For the aforementioned reasons, the appeals are partly allowed to the aforementioned extent and subject to the directions aforementioned. But there shall be no order as to costs. 5 11. I am, therefore, only required to see on the facts of the case and the evidence led as to whether there is any material to hold that victim of the claim case was traveling as owner of the goods or its authorized agent in the vehicles by hiring for his goods, or whether she was traveling as gratuitous passenger? 12. It is not in dispute that offending vehicle was a truck and hence was a “goods vehicle”. It is also not in dispute that deceased through her father asked for a lift on the road when the truck in question was moving on the road for one destination to other along with the goods of other and got inside with her small bags by paying Rs.10/- or Rs.20/- to driver along with her father. 13. In my view, such traveling in the truck does not amount to either hiring the truck by a victim nor it amounts to such victim as travelling in goods vehicle for the safety of his goods. In order to attract the provisions of Section 147 of the Act, there has to be a hiring of the goods vehicle for carrying his goods of such victim. The payment of hiring has got to be to insured of truck and not to its driver and that too without any consent of insured. 14. In my opinion, the evidence of claimants proves in clear terms that neither victim nor her father had hired the vehicle in question for carrying their goods from one destination to other. Rather it proves in clear terms that they were traveling in the truck as gratuitous passenger for going to attend some religious function at “Devali”. The very fact that on route they asked for lift and they boarded in the truck clearly shows that she was not traveling in the truck as an owner of her goods being carried in the truck for higher or reward or for its safety. In other words, I have no hesitation in coming 6 to the conclusion that the victim was a gratuitous passenger in the truck in question. 15. Once I record this finding by upholding the finding of Tribunal which alone is necessary for deciding the question of liability in so far as the Insurance Company is concerned, the inevitable conclusion is that law laid down in Baljit case (supra) will apply in favour of Insurance Company. In other words, no liability can be fastened on the Insurance Company, once I uphold the finding that the victim was gratuitous passenger traveling in goods vehicle. In the light of this, the first submission of learned counsel for the appellant must fail. It is accordingly rejected. 16. Coming now to the new question as to whether appeal survives for being prosecuted against the owner of offending vehicle (insured) for claiming any compensation that what has been awarded, I am of the view that even this question needs to be answered against the appellant. It is for the reason that parties to appeal i.e. claimants and owner of vehicle had settled the issue before Lok Adalat on 20.9.2003. It is clear from the application made by parties and an order passed thereon on 20.9.03 which is on record. 17. Once the order is passed by Lok Adalat, then no cause of action survives in case and it must come to an end for its prosecution. It is not in dispute that this order of Lok Adalat was not challenged by either party in writ or in any proceedings and hence it binds both the parties so far as termination of lis is concerned. 18. In view of foregoing discussion, even second submission too has no merit. It is accordingly rejected. 7 19. As a consequence, the appeal is held to be devoid of any merit. It is accordingly dismissed. (A.M. SAPRE),J. /ANIL/ 8