SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. 1. S.B. CIVIL MISC. APPEAL NO.495/1995 Oriental Insurance Company Limited Versus Kanji and ors. 2. S.B. CIVIL MISC. APPEAL NO.565/1995 Oriental Insurance Company Limited Versus Roopji and ors. 3. S.B. CIVIL MISC. APPEAL NO.566/1995 Oriental Insurance Company Limited Versus Veerji and ors. 4. S.B. CIVIL MISC. APPEAL NO.567/1995 Oriental Insurance Company Limited Versus Bhanji and ors. 5. S.B. CIVIL MISC. APPEAL NO.568/1995 Oriental Insurance Company Limited Versus Roopji and ors. SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 2/7 6. S.B. CIVIL MISC. APPEAL NO.569/1995 Oriental Insurance Company Limited Versus Dhanji and ors. 7. S.B. CIVIL MISC. APPEAL NO.570/1995 Oriental Insurance Company Limited Versus Hakri. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.L.D.Khatri, for the appellants. Mr. Parikshit Nayak, for the claimants. DATE OF JUDGMENT : 9th July, 2009. JUDGMENT 1. Heard the learned counsels. 2. These appeals have been filed by the Insurance Company being aggrieved by the award of the MACT, Banswara dtd.3.8.1995 deciding claim petitions no.125/1992, 126/1992, 153/1992, 138/1992, 127/1992, 155/1992, 156/1992. 3. The learned counsel for the Insurance Company submits that the controversy is covered by the decision of the Hon'ble Supreme SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 3/7 Court in the case of f National Insurance Company V/s Asha Rani reported in 2003 ACJ 1 and the judgment of this Court given today in the case of New India Assurance Company Limited V/s Smt. Kamla Devi and ors. - S.B. Civil Misc. Appeal NO.564/1995 and therefore, the present appeal deserves to be allowed qua the appellant Insurance Company. 4. This legal position is not disputed by the learned counsel for the claimants. However, he supports the impugned award and submits that the award against the owner of the vehicle may be maintained and he may be given right to recover the compensation from the owner of the vehicle. 5. This Court has also decided the similar controversy by the judgment given today itself in which relying upon the decision of Hon'ble Supreme Court in the case of Asha Rani (supra), the relevant extract of which is reproduced hereunder also, the said appeal has been allowed: “Per G.B. Pattanaik, C.J.I (For himself, H.K. Sema and S.B. Sinha JJ) : Prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorized representative being carried in a goods vehicle. It is no doubt true that sometimes the legislature amends the law by way of SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 4/7 amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorized representative carried in the vehicle' which was added to the pre-existing expression 'injury to any person' is either clarificatory or amplification of the pre- existing statute. On the other hand, it clearly demonstrates that the legislature wanted to bring within the sweep of section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. Per S.B. Sinha, J. (concurring) : Section 2(35) of the Motor Vehicles Act, 1988, does not include passengers in goods carriage whereas section 2(25) of 1939 Act did, as even passengers could be carried in a goods vehicle. The difference in the definitions of the 'goods vehicle' in SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 5/7 1939 Act and 'goods carriage' in 1988 Act is significant. By reason of that change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words 'in addition to passengers' occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under 1988 Act. Section 147 of 1988 Act, inter alia, prescribes copulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's compensation Act. It does not speak of any passenger in a 'goods carriage'. Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clause (a) (i) © of sub-section (2) of section 149 of the Act, one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 6/7 defence available to the insurer would be obliterated in view of the decision of this court in Satpal Singh's case, 2000 ACJ 1 (SC).” 9. In view of the aforesaid, these appeals of the Insurance Company are allowed in the same terms and it is held that the Insurance Company is not liable to pay compensation in question and the amount already paid by them to the claimants shall be recoverable by them either from the owner of the vehicle or the claimants. The claimants shall be free to recover the balance amount from the owner of the vehicle. No order as to costs. CROSS OBJECTIONS IN SBCMA NO.495/1995 10. In the present appeal, the claimants – parents of the deceased Ms. Dariya have filed cross-objections seeking enhancement of compensation of Rs.60,000/- in the said cross objections. 11. The learned counsel for the claimants Mr. Parikshit Nayak submits that the learned Tribunal has erred in awarding meagre compensation of Rs.60,000/- for the death of the only daughter of the present claimants who was about 14-15 years of age at the time of said accident and was doing regular business of selling vegetables and even at the time of death, she was carrying her vegetables for sale and the learned Tribunal has also erred in holding that after few years SBCMA NO.495/1995 – THE ORIENTAL INSURANCE COMPANY LIMITED V/S KANJI AND ORS.. AND 6 CONNECTED APPEALS :JUDGMENT DTD.9.7.2009 7/7 she would have got married and after her marriage, there would be no loss of income to the present appellants - parents. 12. No body appears on behalf of the owner of the vehicles for arguing the matter. The appeal of the Insurance Company has however been allowed by this Court relying upon the decision of Hon'ble Supreme Court in the case of Asha Rani (supra). However the amount of compensation in the present case is considered to be rather on lower side looking to the facts and circumstances of the case. The said daughter was admittedly selling vegetables at the time of death and was doing regular business and factum of her marriage also does not necessarily mean that parents would be deprived of her income altogether. In view of these facts, it is considered reasonable that the amount of compensation is enhanced from Rs.60,000/- to Rs.1,00,000/-. The amount of compensation is, accordingly enhanced to Rs.1,00,000/- by modifying the award of the Tribunal to that extent. The said amount along with interest shall also be recoverable by the claimants from the owner of the vehicles. 13. The cross-objections are accordingly allowed. No order a to costs. (Dr.VINEET KOTHARI)J. Item No.3 to 8 Ss/-