1 F.A.NO.53/1995. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO.53 OF 1995. New India Assurance Co. Ltd., having it's registered and Head Office, at New India Assurance Building 87, M.G.Marg, Fort, Bombay-1 and Divisional Office at Aurangabad and Branch Office at Jalgaon. ...Appellant. (Ori.N.A.No.3.) Versus 1. Shri Isaq Ahmad Shaikh, Age: 42 years, Occ: Agriculture, & Service, R/o: Pimpalkothe Bk., Tq.Erandol, At present Laxmibai Bhandari Niwas, Room Nos.2 and 3, Simpoli, Borowali, Bombay-92. 2. Nisar Nuruddin Shaikh, Age: 23 years, Occ: Private Service, Truck Driver, R/o: Moulavi Ganja, Near Jainni Manzil, Dhulia. 3. Mr.Paresh Pati Govindji Shah, P.K.Patil's house at Balapur, Post Fagana, Dist.Dhulia. (Appeal is dismissed as against Respondent No.3 as per Addl.Registrar's order dated.20.03.2001.) ...Respondents. (Respondent No.1-Ori.applicant. Respondent Nos. 2 & 3-Original N.A.Nos. 1 and 2.) 2 F.A.NO.53/1995. ... Mr.S.L.Kulkarni, Advocate for the appellant. Mr.S.V.Gangapurwala for the respondent No.1. ... CORAM: A.V.NIRGUDE,J. Date of reserving the judgment: 30th July, 2009. Date of pronouncing the judgment:6th August, 2009. JUDGMENT: 1. This appeal is filed against the award dated 27th September, 1994 passed by the Motor Accident Claims, Tribunal, Jalgaon in Motor Accident Claim Petition No.38 of 1986. 2. The appellant is the Insurance Company, which had insured (IIIrd party insurance) the vehicle, which met with the accident. The respondent No.1 was traveling in it. The respondent No.2 was driving it. The respondent No.3 is the owner. 3. The Court below held on facts and I am not going to disturb the finding that the respondent No.1 was traveling in the vehicle from Jalgaon to Pimpalkothe being owner of some of the goods loaded in the vehicle. The respondent No.2 was negligent in driving the vehicle and the accident took place. The respondent No.1 sustained injuries, which resulted into permanent disability to some extent. The lower Court held that he was entitled to compensation of 3 F.A.NO.53/1995. Rs.41,500/- including "NFL" amount and in addition, costs and interest etc.. 4. The appellant before the lower Court contended that they were not liable to pay the compensation, firstly because, the insurance was only third party and there was no cover for the passengers in the goods vehicle, besides the driver. The lower Court, overruled the objections in view of the judgment of the Supreme Court in the case of National Insurance Company V/s Dundamma ( 1992 ACJ 1) a passage of it is quoted below. "Under a motor vehicle insurance policy issued by an insurance company in conformity with S.95 of the M.V.Act, 1939, the insurance company is not- liable by the force of clause (ii) of the proviso to section 95(1) (b) of the Act to pay compensation in respect of death of or bodily injury to any person travelling in a vehicle which is not a - vehicle constructed or adapted and meant in law for carrying passengers for hire or reward such a goods vehicle even to the extent of number of person/passengers permitted to be carried in the vehicle, except in respect of the owners of the goods travelling in a goods vehicle having engaged the vehicle under an agreement with the owner for carrying goods for hire or reward, and the goods carried are those as defined in section 2(7) of the Act, subject to the condition that such liability shall cover only up to the extent of the number of persons permitted to be carried in the goods-vehicle under rule 161 of the Karnataka Motor Vehicles Rules, 1963." 5. Since the accident took place in the year 1985, the Motor Vehicles Act,1939 is applicable to this 4 F.A.NO.53/1995. case. Section 95 of the said Act, reads as under: "Sec.95. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance may be a policy which,- (a) is issued by a person who is an authorised insurer or by a co-operative society allowed under section 108 to transact the business of an insurer, and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place; 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 employees of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's 5 F.A.NO.53/1995. Compensation Act, 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 a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods vehicle, being carried in the vehicle; or (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of 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, or (iii) to cover any contractual liability. Explanation. - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person, or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1) a policy of insurance shall cover any 6 F.A.NO.53/1995. liability incurred in respect of any one accident up to the following limits, namely:- (a) where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;) (b) 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,- (i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger; (c) save as provided in clause(d), where the vehicle is a vehicle of any other class, the amount of liability incurred; (d) irrespective of the class of the vehicle, a limit of rupees (six thousand) in all in respect of damage to any property of a third party." (3)........... (4)............." 6. The provisions clearly laid down as to what 7 F.A.NO.53/1995. extent the policy would hold the insurer liable. The proviso to clause (b) of sub-section (i) enumerates the liabilities that are not to be covered compulsorily. It lays down that the owner of the vehicle is not under legal obligation to insure risk in respect of persons carried in a goods vehicle. It further lays down, the owner of the passenger carrier for hire or reward etc., is under legal obligation to cover the liability of death or injury to the passenger. 7. Prior to 1988, despite of this provisions, there was lot of controversy in respect of the owner's and insurer's liability in respect of death or bodily injury caused to the owner of the goods traveling in same vehicle that carried goods. This controversy, however, was finally settled in the case of Smt.Mallawwa etc. V/s Oriental Insurance Co.Ltd., and others (AIR 1999 Supreme Court 589). The supreme Court accepted the view on this subject of the Orissa High Court and rejected that of Rajasthan High Court. The Supreme Court quoted paragraph No.23 from the judgment of Orissa High Court, which I quote as under: "23. There is another aspect of the matter which had led us to differ from the Full Bench decision of Rajasthan High Court. The same is what finds place in sub-section (2) of Section 95. That sub-section specifies the limits of 8 F.A.NO.53/1995. liability and clause(a) deals with goods vehicle; and in so far as the person traveling in goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also." 8. The Supreme Court also held that the 1939 Act and the interpretation of the same will govern the cases which have arisen under the 1939 Act. The Supreme Court allowed the appeals of Insurance Company. 9. This view of the Supreme Court in Smt.Mallawwa etc. V/s Oriental Insurance Co.Ltd., and others (supra) case on this subject is probably the last word. I am not shown any other judgments of the Supreme Court delivered after this judgment, taking the contrary view. It is thus clear that the appellant Insurance Company can not be held liable to pay any compensation to the respondent No.1. This, however, does not mean that the respondents No.2 and 3 are relieved of the award and it's liability. 10. In 1988 a new Motor Vehicles Act was introduced. Section 147 of the new Act, is almost similar to Section 95 of the old Act. Even under Section 147 of 9 F.A.NO.53/1995. the New Act, there arose difference of opinion between the High Court and even between some judgments of Supreme Court about the insurance companies liability in respect of the death or bodily injury caused to a person travelling in a goods vehicle either as gratuitous traveler or for reward or as an owner of goods carried in the vehicle at the time of the accident. There was conflict in the view of the Supreme Court expressed in the case of New India Assurance Co. Ltd. V/s Asha Rani (AIR 2003 Supreme Court 607) and in the case of New India Assurance Co.V/s Satpal Singh ( (2000) 1 SCC 237 ). The controversy was set at naught with the larger Bench Judgment in the case of National Insurance Co.Ltd. V/s Baljit Kaur and others (2004) 2 SCC-1. Probably because of this conflict in the views of the Supreme Court in 1994 Section 147 of the Act, was amended and the liability arising out of death or bodily injury of the owner or representative of the owner of goods travelling in a goods vehicle at the time of accident was made compulsorily insurable. The Supreme Court in the case of National Insurance Co.Ltd., V/s Baljit Kaur and others (supra) finally held that a gratuitous passenger in a goods vehicle is not compulsorily insured. 11. However, this judgment of the Supreme Court in the case of Baljit Kaur and more recent judgment 10 F.A.NO.53/1995. of the Supreme Court in the case of Oriental Insurance Co.Ltd. V/s Brij Mohan and others ( 2007) 7 Supreme Court Cases 56 are pressed into service by the respondent No.1 mainly to high light a peculiar order the Supreme Court had passed in both the cases. On one hand, the Supreme Court held that the Insurance Company was not liable to pay the compensation to a person who was gratuitous passenger in a goods vehicle but on the other hand, the Supreme Court used it's powers under Article 142 and 136 of the Constitution of India and directed the Insurance Company to first pay the compensation to the applicants and then to recover the same from the owner of the vehicle in the execution of the award. 12. The learned Advocate, appearing for respondent No.1, urged that despite of the finding mentioned above, against him, I should also follow the way the Supreme Court passed the order directing the Insurance Company to pay the compensation to the applicant and then recover it from the owner of the vehicle, the respondent No.3. He even pointed out a recent judgment of the learned single Judge of this Court in the case of United India Insurance Co.Ltd. V/s Branch Office at Riassl Toly & others ( 2008 (4) Bom.C.R. 851 ). In which similar was the situation and my learned Brother passed similar order directing the insurance company to first pay the compensation 11 F.A.NO.53/1995. to the applicant and then to recover it from the owner of the vehicle. 13. I am unable to follow this line of action. In my view, it is only the Supreme Court, which could pass such direction utilizing it's power under Article 142 of the Constitution of India, which reads as under: "Article-142-Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.- (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. . (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself." 14. The Article is very clear in stating that it is 12 F.A.NO.53/1995. only the Supreme Court which can make such order being "necessary for doing complete justice in any cause pending before it". I am not shown any other provisions of law giving such powers to this Court. I am, therefore, holding that the appellant is not liable to pay the compensation to the respondent No. 1. To that extent, the appeal should be allowed. Accordingly, the appeal is allowed. Award, as against the appellant shall stand set aside. (A.V.NIRGUDE,J.) lkp