IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.513 of 2005 UNITED INDIA INSURANCE COMPANY LIMITED THROUGH THE DEPUTY MANAGER, REGIONAL OFFICE, CHANAKYA COMMERCIAL COMPLEX, R. BLOCK, PATNA. ……………… O.P. IIIrd Party/Appellant Versus 1. SAHANAZ KHATOON W/o Lt. Md. Akbar Momin @ Md. Akbar, Resident of Village- Kurahar, P.O. Dhadhi, P.S. Nanpur, District- Sitamarhi 2. Smt. Rajwati Devi, W/o Makhan Thakur Resident of Village & P.O. Runni Saidpur, District Sitamarhi. 3. Sri Kant Lal Thakur S/o Lt. Bikau Thakur, Resident of Village-Bedaul, P.S.- Aurari, District- Muzaffarpur (Respondents No. 8 & 9 are owners of vehicle) …………………. O.P. Ist Party/Respondents 4. Sanjay Prasad, S/o Shri Bihari Prasad, Resident of Village-Athari, P.S. Runni Saidpur, District- Sitamarhi (Driver of the vehicle) ….. O.P. 2nd Party/Respondent. For the Appellant.: Mr. Durgesh Kumar Singh, Advocate For the Respondents (Owner & Driver) (2 ,3,& 4) : Mr. Anil Jaiswal ----------- 7. 26.03.2010 Heard Sri Durgesh Kumar Singh, the learned counsel on behalf of the appellant (United Insurance Company Ltd) and Mr. Anil Jaiswal, the learned counsel on behalf of the respondent (owner and driver of the vehicle in question.) in the admission matter under Order 41 rule 11 of the Code of Civil Procedure. With consent of the parties, this Misc. Appeal is disposed of after hearing the appellant at the admission stage itself. This Miscellaneous Appeal has been filed by the Insurance Company against the judgment and award dated 22.06.2005 passed by Sri Ghaneshwar Srivastava, IInd Additional District Judge, Darbhanga-cum-Motor Vehicle 2 Accident Claim Tribunal in Case No. 40 of 2000. The claimant, Shahanaz Khatoon filed the aforesaid Claim Case No. 40 of 2000 claiming compensation to the tune of Rs 4,10,000/- (four lacs ten thousand only). According to the case of the claimant, the husband of the claimant i.e. the deceased, Md. Akbar who was aged about 35 years was sitting on the top of the truck bearing Registration No. BR-30/G-4182 on 05.05.2000. On the said truck, the Barat party was sitting. According to her further case, her deceased husband was a tailor master. Due to rash and negligent driving of the driver, the deceased, Md. Akbar fell from the truck and succumbed to the injuries. On the basis of her fardbeyan, a police case was registered being Jale P.S. Case No. 05 of 2000 u/Ss 279, 304A of the IPC. In the said claim application, the owner of the truck was made Opposite Party No. 1 whereas the driver was made O.P. No. 2 and this appellant-insurance company was made O.P. No. 3. After issuance of notice, the owner and the driver neither appeared and nor filed any W. S. contesting the claim of the claimant. The insurance company, i.e. the appellant in this Misc. Appeal who was O.P. No. 3 appeared and filed a contesting written statement raising various grounds including that the insurance company is not liable to pay any compensation because the vehicle in question was 3 a commercial vehicle. The learned Motor Vehicle Accident Claim Tribunal after hearing the parties allowed the claim of the claimant in toto. Out of Rs 4.10.000/- , 50,000/- had already been paid by the insurance company. Therefore, the rest amount of Rs 3,60,000/- was directed to be paid to the claimant alongwith the interest at the rate of 9 per cent per annum. The learned counsel appearing on behalf of the appellant raised a short question relating to the liability of the insurance company only. The learned counsel for the appellant submitted that by amendment in the year, 1994, the liability of the insurance company was extended only to the owner and/or the representative of the owner of goods in vehicle only and earlier to that the liability was for the driver and Khalasi only. The learned counsel further submitted that this aspect of the matter was not considered by the Motor Vehicle Accident Claim Tribunal who passed the judgment and order directing the insurance company to pay the compensation. The learned counsel in support of his contention relied upon a decision of the Hon’ble Supreme Court reported in 2004(2) PLJR page 59 (SC) (M/S National Insurance Company Ltd Vs Baljeet Kaur & Ors.) The Hon’ble Supreme Court in the aforesaid decision, at 4 Paragraphs- 13 & 14 has held as follows: “It is pertinent to note that a statutory liability enjoined upon an owner of the vehicle to compulsorily insure it so as to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment in terms of proviso (ii) appended to Section 95 of the 1939 Act does not occur in Section 147 of the 1988 Act. The changes effected in the 1988 Act vis-à-vis the 1939 Act as regard definitions of „goods vehicle‟, public service vehicle‟ and „stage carriage‟ have also a bearing on the subject inasmuch as the concept of any goods carriage carrying any passenger or any other person was not contemplated. In a situation of this nature, the doctrine of suppression of mischief rule as adumbrated in Heydon‟s case [3 Co Rep 7a 76 ER 637] shall apply. Such an amendment was made by the Parliament consciously. Having regard to the definition of „goods carriage‟ vis- à-vis „public service vehicle‟, it is clear that whereas the goods carriage carrying any passenger is not contemplated under the 1988 5 Act as the same must be used solely for carrying the goods.” At Paragraph-20 in the same judgment, the Hon’ble Supreme Court has held as follows:- “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 learned counsel for the appellant next relied upon another decision reported in 2008(1) PLJR page 127 (SC) (United India Insurance Company Limited Vs Serjerao & Ors.) In the said case, at Paragraph-8, the Hon’ble Supreme Court has held as follows:- 6 “So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this court in Oriental Insurance Company Ltd vs. Brij Mohan & Ors. [2007(7) SCALE 753] and it was held that the insurance Company has no liability. In view of the aforesaid two decisions of this court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matter afresh in the light of what has been stated by this court in Smt. Yallwwa‟s case (supra) & Brij Mohan‟s case (supra). .” On this point that the Insurance Company has no liability to pay any compensation to a person who is not a driver or Khalasi or the owner of the goods or the representative of the owner of goods vehicle relied upon various other decisions including a decision reported in 2008(3) BBCJ 280. In 2008(3) page 280 (United India Insurance Company vs. Satiya Devi @ Sundri Devi & Ors), this court has held as follows:- “The insurance company is not at all responsible to pay any compensation, when the commercial vehicle was being plied by the driver, in the manner and the deceased met his 7 end, while he was sitting on the back portion of the truck. The Insurance Company had not insured any person except the driver and Khalasi of the truck.” On the otherhand, the learned counsel appearing on behalf of the owner as well as the driver submitted that the case proceeded ex parte against the owner and the driver and therefore, the insurance paper could not be filed by the owner to show that the insurance policy also covers other persons. Learned counsel further submitted that because of the fact that the case proceeded ex parte; the matter may be remanded back to the court below. I do not agree with the learned counsel for the respondent, owner and the driver, that, the case is required to be remanded because the facts of this case are completely covered by the decisions passed by the Hon’ble Supreme Court as well as by this court as stated above. Admittedly, in the present case, the deceased, Md. Akbar was a tailor master and was sitting on the top of the truck at the time of the accident. In the said truck, Barat party was also boarding. In view of the above facts and circumstances of the case and the decisions cited on behalf of the appellant, in my opinion, the insurance company i.e. the appellant is not liable to pay any compensation to the claimant. The learned court below has not considered this 8 aspect of the matter and passed the award against the appellant. It is submitted that Rs 50,000/- has already been paid by the appellant under section 140 of M.V. Act to the claimant., Since it is held that the appellant is not liable to pay any compensation, the insurance company is at liberty to recover the same from the owner. So far the rest of the compensation is concerned; the claimant may recover the same from the owner of the vehicle in question. With the above observations, this Miscellaneous Appeal is allowed and the impugned judgment and award are set aside. The statutory amount of Rs 25,000/- (twenty five thousand) which has been deposited by the appellant at the time of filing this appeal, may also be returned to the appellant. AKV/ (Mungeshwar Sahoo,J.)