THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO C.M.A.NO.2602 OF 2000 JUDGMENT: This is an Appeal preferred under Section 173 of the Motor Vehicles Act, 1988, (for short hereinafter referred to as `the Act’) by the Claimant, aggrieved by the inadequate compensation awarded by the Motor Accidents Claims Tribunal –cum- Additional District Judge, Ongole, in O.P.No.356 of 1992. The 1st respondent is the owner of the Tractor and trailor, while the 2nd respondent is it’s insurer. At the outset, it will be appropriate to notice that the claim petition has been filed both under Sections 144 and 166 of the Act. The claimant is said to be an agriculturist earning annually a sum of Rs.20,000/-. On 14.3.1992, he and his family members have hired the tractor and trailor belonging to the 1st respondent bearing registration No. AP 27U 0343 and AP 27U 0344 respectively, to travel up to Devarkonda for purposes of offering prayers at a local temple there. On their return journey, when the vehicle has reached Ullagallu village, it is alleged that, due to rash and negligent driving of the driver of the tractor, it went and hit an RTC bus which is standing on the right side. It is specifically stated that the claimant-appellant was sitting in the trailor with his legs stretched outside the edge of the trailor. In the accident thus caused, he received grevious injury to his left leg resulting in fracture below the knee joint. The appellant has been moved to Government General Hospital, Guntur for receiving treatment for the injury sustained by him. He was treated as an inpatient for the injury sustained by him between 15.3.1992 to 29.5.1992. Though the injury has healed and the fractured bone has united, but still it has left him with a permanent disablement and hence he claimed an amount of Rs.50,000/- towards loss of earnings due to the permanent disability. He had claimed a sum of Rs.12,000/- to be granted in terms of Section 140 of the Act and the balance amount of Rs.38,000/- to be granted under Section 166 of the Act. The 2nd respondent – insurer alone has contested the case. It is pointed out that the vehicle involved in the accident has been registered as a goods carrying vehicle where as it has been used for ferrying the passengers and hence the insurance company is not liable to pay for the same. Since the conditions of the grant of permission as a goods carrier as well as the terms of the policy of the insurance have been violated, the 2nd respondent is not liable to compensate the claimant. The appellant has examined himself as PW1 and has taken care to examine the Assistant Professor/Civil Assistant Surgeon of Guntur Medical College, Government General Hospital, Guntur as PW2. The appellant has also got marked four exhibits A1 to A4. The Administrative Officer of the 2nd respondent – insurance company has been examined as RW1 and the insurance policy has been got marked as Ex.B1. Apart from narrating the facts as to how the accident had occasioned all due to the rash and negligent driving of the tractor driver, the appellant has also vouched for his income, the hospitalization and the treatment which he has received and also the disability which he has sustained, all due to the accident. Ex.A1 is the certified copy of the FIR in Cr. No. 7/1992 registered by the Mundlamuru police station pursuant to the accident. Ex.A2 is the certified copy of the charge sheet in CC No. 46 of 1993 filed by the aforementioned police on the file of the Judicial Magistrate of First Class, Darsi prosecuting the driver of the tractor which caused the accident. Ex.A3 is the relevant extract from the accidents register maintained by the Government General Hospital, Guntur. Ex.A4 is the OP chit dated 29.5.1992 issued by the Government General Hospital. PW2 is a Specialist Orthopedic Surgeon attached to the Government General Hospital, Guntur who clearly deposed that he had to operate twice on the left leg of the claimant/appellant and that the claimant/appellant has been hospitalized continuously for 2 ½ months because of the nature of the injury sustained by him and that when he has examined the claimant in the court, he could find that his left leg has been shortened by about 3 cms and he opined that in some cases, the Orthopedic injuries do result in shortage of the length of the bones and in this case the difference of 3 cms had occasioned all because of the accident. PW2 has been cross-examined. However, going by the nature of the injury viz., a compound communicated fracture of left tibia, the healing period followed by skin grafting, hospitalization for 2 ½ months period is not an unusual feature. The assessment of the Doctor, PW2 about permanent disability to the extent of 30% could not be shaken off either. After a very careful analysis of the fact situation, the Tribunal had concluded the Issue No.1 framed by it holding that the appellant has also contributed to the accident all because of his stretching his legs beyond the edge of the tractor-trailor. The tribunal has noticed that several family members of the appellant were also traveling in the same trailor and no one has sustained even a minor injury. Only the appellant has sustained a grevious injury. The attempt made to demonstrate that the tractor-trailor driver caused the accident by hitting the standing RTC bus has not been believed as there are no such marks on the tractor or trailor or the RTC bus. The investigation carried out by the police as evidenced from Ex.A2 also did not support such a theory. Therefore, the analysis of facts has led to the conclusion that the act of stretching his legs beyond the edge of the tractor-trailor by the claimant-appellant contributed to his sustaining injury, is therefore unexceptionable. While making an assessment with regard to the quantum of compensation, the Tribunal has worked out the quantum as under: For injury No.1, which is a grevious injury resulting in fracture of the left tibia, an amount of Rs.12,500/- is awarded. For injury No.2, as it is simple in nature an amount of Rs.2,000/- is fixed. Under the head of `pain and suffering’ a sum of Rs.3,000/- is fixed and towards medical aid an amount of Rs.2,500/- is fixed. Thus, the total compensation amount payable has been arrived at Rs.20,000/-. As was noticed supra, in view of its finding that the appellant has also contributed to the accident, he was declared as entitled to only 50% of the compensation so determined and thus concluded the issue awarding a sum of Rs.10,000/- as compensation. In view of the judgment of the Supreme Court in NEW INDIA ASSURANCE CO. LTD. V. VEDAWATI AND OTHERS[1], wherein it has been held as under: "6. This Court had occasion to deal with cases of passengers traveling in goods vehicles which met accident resulting in death of such person or bodily injury. Such cases belong to three categories i. e. (1) those covered by the old Act, (2) those covered by the Act; and (3) those covered by amendment of the Act in 1994 by the Motor Vehicles (Amendment) Act. 1994 (hereinafter referred to as the 'amendment act' ). 7. The present appeals belong to the second category. 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) "goods 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:" (Underlined 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 appear 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 service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's compensation Act, 1923 (in short 'wc Act" ). There is no reference to any passenger in "goods carriage". 14. 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 travelling in a goods carriage and the insurer would have no liability therefor. 15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High court were not justified in holding that the insurer had the liability to satisfy the award. 16. This position was also highlighted in oriental Insurance Co. Ltd. v. Devireddy konda Reddy and Others (2003 (2) SCC 339 ). Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Others (2003 (9) SCC 668), in National Insurance Co. Ltd. v. Baljit kaur and Others (2004 (2) SCC 1) and in national Insurance Co. Ltd. v. Bommithi subbhayamma and Others (2005 (12) SCC 243), the view in Asha Rani's case (supra) was reiterated. " It is no longer in dispute that the 2nd respondent – insurance company need not indemnify the 1st respondent – owner for the accident that has been caused. However, the claimant has claimed a sum of Rs.12,000/- in terms of Section 140. It will be relevant to notice Section 140 of the Act, as it stood at the relevant time, since it will have a bearing upon the issue at controversy in this case. 140 - Liability to pay compensation in certain cases on the principle of no fault.- (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or. as the case may be. the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of twenty five thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twelve thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub- section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. [(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A]. A careful analysis of the provisions contained under Section 140 makes it clear that that the Legislature has provided for payment of certain amount of compensation to the victims irrespective of the fact that for the wrongful act, neglect or default of the person who suffered permanent disability, the claim for compensation shall not be defeated. In other words, the `no fault liability’ theory has been propounded under Section 140 of the Act. Even if the victim has contributed to the accident in question, which resulted in permanent disablement, the amount of compensation fixed under sub-section (2) will have to be paid. In view of the finding that the appellant has suffered a disablement, which is a permanent disablement, he is entitled to be awarded Rs.12,000/- in terms of Section 140. In fact, the Tribunal has not focused its attention on the provisions contained under Section 140. Otherwise, it would not have apportioned the quantum of compensation in that respect. I therefore hold that the appellant is entitled to be paid Rs.12,000/- as compensation for the permanent disablement suffered by him and claimed by him under Section 140 of the Act. As was already noticed supra, towards pain and suffering a sum of Rs.3,000/- and towards hospitalization charges a sum of Rs.2500/- has been awarded. Apart from this, a further sum of RS.2,000/- was also awarded towards injury No.2 which is a simple injury. On these three heads, a sum of Rs.7500/- has been awarded. This amount of Rs.7,500/- is undoubtedly liable to be apportioned, in view of the contribution made by the appellant all because of his sitting posture in the trailor. Therefore, Rs.7,500/- is liable to be split up into two halves and the appellant is entitled to be paid a compensation of Rs.3,750/-, thus in all the appellant would be entitled to be paid a total sum of Rs.15,750/-. The amount of compensation now ordered will be substituted for the amount that is awarded by the Motor Accidents Claims Tribunal –cum- Additional District Judge, Ongole, in O.P.No.356 of 1992 and the rest of the award and the findings of contributory negligence of the appellant are confirmed. The 2nd respondent is not liable to indemnify the 1st respondent. The appeal is partly allowed. No costs. -------------------------------- Nooty Ramamohana Rao, J 24th December 2009 knk [1] 2007(3) Scale 397