ORDER
1. MFA No. 452 of 1990 and MFA No. 959 of 1990 arise against a common order passed by the Claims Tribunal, Dharwad in MVC No. 302 of 1988.
2. MFA No. 452 of 1990 is filed by the United India Insurance Company challenging that portion of the award of the Tribunal holding it liable to pay the compensation while MFA No. 959 of 1990 is filed by the legal representatives of Sannabheemappa for enhancement of compensation.
3. The deceased Sannabheemappa along with his wife Shivagangamma and the grandchild Netravathi were travelling in the lorry bearing No. MYT 5554 with their goods on the Poona-Bangalore Road. The lorry met with an accident on account of the rash and negligent driving of the driver and in the ensuing accident all the 3 of them died. Legal Representatives of the deceased filed separate claim petitions for compensation in MVC Nos. 301, 302 and 303 of 1988.
4. Tribunal after notice and enquiry awarded compensation as follows:
(a)
MVC No. 302 of 1988 —
Rs. 1,17,220/-
(b)
MVC No. 301 of 1988 —
Rs. 5,500/-
(c)
MVC No. 303 of 1988 —
Rs. 33,200/-
5. MFA Nos. 959 and 721 of 1990 are filed for enhancement of compensation for the death of Shivagangamma and the grand child.
6. Tribunal after notice and enquiry has held that the lorry capsized on account of the rash and negligent driving of the driver and in the ensuing accident, 3 persons died.
7. While awarding compensation insofar as MVC No. 302 of 1988 is concerned, it has awarded a sum of Rs. 1,17,220/-. This amount Tribunal has directed the owner and the Insurance Company which was appellant in MVC No. 452 of 1990 to jointly and severally to pay the same. As stated, this order is under challenge.
8. The main ground on which the Insurance Company has filed this appeal is that since the deceased Sannabheemappa was a passenger with goods in a goods vehicle, in view of the decision of this Court in National Insurance Company Limited v Dundamma, and that of Smt. Mallawwa v Oriental Insurance Company Limited and Others , of the Supreme Court, Tribunal was not correct in law to have saddled the company with the liability.
9. Learned Counsel appearing for the Insurance Company in support of the contention contended that in Mallawwa’s case, supra, the Supreme Court has enunciated the law on the point which is to the following effect:
“Para 10: For the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers have carried if the vehicle was of that class. Keeping in mind the classification of vehicles, by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95(1)(b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. The High Courts have expressed divergent views on the question whether a passenger can be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods. It is not
necessary to refer to those decisions which were cited at the Bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other. We may only refer to the decision of the Orissa High Court in New India Assurance Company Limited v Kanchan Bewa and Others, where Hansaria, J., speaking for the Full Bench observed as under:
“18. The aforesaid is not enough to take any view as to whether goods vehicle can or cannot come within the fold or proviso (ii) with which we are concerned. Our primary reason for differing, with respect, with Rajasthan Full Bench is that allowing goods vehicle to be taken within the fold of proviso (ii) would introduce uncertainties in law as that would depend upon various factors to which we shall advert; the result would be that the law would cease to be certain which it has to be at least in a case of the present nature. We have said so because reference to the definition of goods vehicle shows that the first part of it does not deal with carrying of passengers. It is the second part which speaks about the same and that too when the vehicle is used for such a purpose. The word “USE” has been defined in Chambers English Dictionary in its intransitive sense to mean to be accustomed; (to; used chiefly in the past tense), to be in the habit of so doing’; ‘to resort’. Reference to the meaning of this word, as given in Black’s Law Dictionary, 5th edition, would show that even one use may amount to use or it may be that for a thing being said to be used, it has to he employed habitually.
19. Being concerned with a beneficial legislation like the one at hand, we would have normally preferred liberal interpretation, but the question is whether, without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. This would perhaps robe the third proviso dealing with coverage of contractual liability lame.
22. Thus, to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough, it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive
to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.
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 liability and clause (a) deals with goods vehicle; and insofar as the person travelling 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 employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also”.
11. Though, the conclusion was arrived at after taking into consideration, the Orissa Motor Vehicle Rules, in our opinion the said view is correct, even otherwise also. In view of what we have said, the contrary view expressed by other High Courts has to be regarded as incorrect”.
10. He therefore submitted that Supreme Court has made it clear that any contrary view expressed by any other High Court is held to be not a good law. It leaves no room for doubt that the Insurance Company is not liable to pay in a situation like the one on hand.
11. Per contra, learned Counsel appearing for the respondents submitted that in view of the observations of this Court in Dundamma’s case, supra, if a person who travels in a goods vehicle enter a contract along with his goods becomes a victim of an accident, which accident occurred between the period 1979 to 1-7-1989, and in view of the Karnataka High Court following consistently the decision in Channappa Chanavirappa Katti and Another v Laxman Bhimappa Bajantri and Others, whereunder the Company was held liable, the Tribunal was right in holding the Company liable.
12. It is not disputed that the deceased Sannabheemappa was travelling in the ill-fated truck under a contract along with his goods when the accident occurred. In order to appreciate the contention, it is necessary to briefly narrate the law on the point that prevailed in the State of Karnataka by judicial pronouncements. A similar question like the one had come as early as on 1979 for consideration before the Division Bench of this Court in Channappa’s case, supra, interpreting Section 95(1)(b) of the Motor Vehicles Act, 1939, it was held “That the owner of goods travelling in a goods vehicle could be regarded as a passenger travelling in the goods vehicle for hire or reward, therefore there was compulsory coverage of risk under Section 95(1) of the M.V. Act”. Large number of claim cases were decided on the basis of this decision and even the subsequent cases also accepted and followed the said decision like in
T.M. Renukappa v Famida, United India Insurance Company Limited v Gangamma. However a later Division Bench in MFA No. 2902 of 1987, in Dundamma’s case, supra, disagreed with the ratio of Channappa’s case, supra and referred the matter for a Larger Bench for reconsideration of Channappa’s case, supra. Accordingly the Full Bench of this Court in “Dundamma’s case, supra, elaborately considered the entire question including the decision of Supreme Court in Pushpabai Parshottam Udeshi v M/s. Ranjit Ginning and Pressing Company Private Limited, and held:
“Para 31: In the result, we answer the question referred for our opinion as follows:
Under motor vehicle insurance policy issued by an Insurance Company in conformity with Section 95 of the M.V. Act, 1939, the Insurance Company is not liable; by the force of clause (ii) of 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 as a goods vehicle even to the extent of number of passengers/persons 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 Stability shall cover only upto 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″.
13. But however having regard to the fact that from the year 1979 when the decision in Channappa’s case, supra, was rendered, Insurance Companies were paying compensation when they were saddled with liability without challenging the award and large number of cases were being decided on the basis of Channappa’s case, supra. Applying the principle of stare decisis, the Full Bench held that in respect of the accident occurring for the period 1979 to 1989, the Insurance Companies will be liable subsequently they were not. This is what the Court has said:
“Para 29: The learned Counsel for the claimants, however, submitted that even in the event of our taking the view that on a correct interpretation of clause (ii) of the proviso to Section 95(1)(b) of the Act, the risk in respect of passengers in a goods vehicle is not covered by the insurance policy taken in conformity with the statutory requirement only i.e., Act Policy. We should apply the principle of stare decisis and hold that at least in respect of the owner of the vehicle travelling in a goods vehicle with his
goods, the Insurance Company was liable, as that is the view prevailing in this Court for the last twelve years after the decision in Chanriappa’s case, supra. The learned Counsel also further pointed that the 1939 Act has since been replaced by the provisions of the 1988 Act and in the corresponding section the exception incorporated in clause (ii) of the proviso to Section 95(1)(b), which has given rise to the controversy has been omitted and therefore in respect of accidents occurring on and after 1-7-1989, on which date the new Act came into force, the controversy arising in these cases do not arise. The learned Counsel for the Insurance Company as stated earlier, had submitted that actually the said clause should have been deleted in the 1939 Act by the Amending Act 56 of 1959, when sub-clause (ii) was incorporated creating statutory liability in respect of death of or bodily injury to passengers travelling in a public service vehicle, as to some extent the two provisions overlapped each other. This fact has been taken note by the legislature, as is evident from non-incorporation of a similar provision in the 1988 Act. They, however, do not dispute that right from 1979 till now as far as the owner of the goods travelling in the vehicle concerned, the Insurance Companies have been required to pay and have been paying the compensation in view of the ratio of the judgment in Channappa’s case, supra.
Para 30: In the circumstances, we are of the view that though the Question of Law referred for our opinion has to be answered in favour of the Insurance Company, there is justification to apply the principle of stare decisis regarding the liability of the Insurance Company in respect of owner of goods travelling in a goods vehicle, as the said view is holding the field for the last nearly twelve years and particularly in view of the replacement of the 1939 Act by the 1988 Act, in answer to the passengers travelling in a goods vehicle other than the owner of the goods. In this behalf, we should also make it clear, the owner of the goods in respect of whom liability could be foisted against the Insurance Company in respect of cases arising prior to 1-7-1989 should be persons who have entered into an agreement with the owner of the vehicle for carrying goods, and the goods carried should be those as defined in Section 2(7) of the Act, and the liability shall not cover the number of persons carried in excess of what is permitted by Rule 161 of the Karnataka Motor Vehicles Rules, 1963″.
(emphasis supplied)
14. Thus it could be seen that there is no conflict between Dundamma’s case, supra, rendered by this Court and Mallawwa’s case, supra. But because of the peculiar situation that prevailed in this State the principle of “stare decisis” was invoked in the interests of “Certainity and Uniformity”. At this stage, learned Counsel appearing for the Insurance Company Sri Seetharama Rao submitted that in view of the deci-
sion in Mallawwa’s case, the principle of store decisis invoked by this Court in Dundamma’s case, supra, also gets overruled.
15. It is difficult to appreciate the said contention. A reading of the decision of the Supreme Court in Mallawwa’s case, supra, discloses that Supreme Court was considering the claim cases arising from different States including one from the State of Karnataka, one of such case was C.A. No. 3659 of 1993. In the said appeal, the Hon’ble Supreme Court has considered a case where an accident occurred on 6-11-1990 and the deceased in the said accident was one Suresh who was travelling in a goods carriage. An application for interim compensation filed by the widow was allowed by the Tribunal and the Insurance Company was made liable to pay under Section 140 of the 1988 Act. This award was challenged by the Insurance Company unsuccessfully before the High Court and thereafter before the Supreme Court. But, this question viz., “Whether the principle of stare decisis invoked by this Court on account of peculiar situation that prevailed in Karnataka in view of the decision of the Division Bench decision of this Court in Channappa’s case, supra, which held the field for a period of 12 years the Insurance Company was made liable to pay, had become a settled law”, had not come up before the Supreme Court either directly or remotely for consideration; However, learned Counsel, tried to submit that even the principle of “stare decisis” invoked by this Court in Dundamma’s case, supra, should be deemed to have been overruled by the Supreme Court in Mallawwa’s case, supra, relying on a decision of the Full Bench decision of Rangoon High Court in Ma Mya v Ma Thein, whereunder it has been held as under:
“It may be laid down as a general rule that that part alone of a decision of a Court of law is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often called ratio decidendi. Statements which are not necessary to the decision, which go beyond the occasion, and lay down a rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy”.
16. The Court in this case was only stating the difference between the ratio decidendi and obiter dicta. I am unable to understand how this decision in any way helps. The Principle of stare decisis is not the same as ratio decidendi. “Stare decisis” means: “To stand upon decisions”, or “To abide by precedents”. The concept, principle and the application of stare decisis is elaborately dealt and stated by the Supreme Court in Waman Rao and Others v Union of India and Others . The relevant paragraphs are extracted hereunder:
The doctrine of stare deems is the basis of common law. It originated in England and was used in the colonies as the basis of their judicial decisions. According to Dias, the genesis of the rule may be sought in factors peculiar to English legal history, amongst which may be singled out the absence of a Code. The Normans forbore to impose an alien code on a half-conquered realm, but sought instead to win as much widespread confidence as possible in their administration of law, by the application of near uniform rules. The older the decision, the greater its authority and the more truly was it accepted as stating the correct law. As the gulf of time widened, says Dias, judges became increasingly reluctant to challenge old decisions. The learned Author cites the example of Bracton and Coke who always preferred older authorities. In fact, Bracton had compiled a notebook of some two thousand cases as material for his treatise and employed some five hundred of them.
The principle of stare decisis is also firmly rooted in American jurisprudence. It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability. The legal system, it is said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise. It is important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case. When the weight of the volume of the decisions on a point of general public importance is heavy enough, Courts are inclined to abide by the rule of stare decisis, leaving it to the legislature to change longstanding precedents if it so thinks it expedient or necessary. In Burnet v Coronado Oil and Gas Company , Justice Brandeis stated that stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right”.
17. Again the Court at para 40 of the judgment states:
“For the purposes of applying the rule of stare decisis, it was sufficient for invoking the rule of “stare decisis” that a certain decision was arrived at on a question which arose or was argued no matter on what reason the decision rests or what is the basis of the decision. It is unnecessary to enquire or determine as to what was the Rationale of the earlier decision which is said to operate as stare decisis”.
18. The doctrine is regarded as the rule of policy which only promotes predictability and certainty.
19. As stated in Dundamma’s case, supra, the Court felt that having regard to large number of cases being decided on the basis of Channappa’s case, supra and the Insurance Company being made liable and Company’s also honouring the awards, “It is not a prudent policy to
disturb such a settled law”, the Court however restricted the application of the doctrine only for the period when the accidents occurred between 1979 till 1989 when the new Motor Vehicles Act, 1988 came into force, though holding Insurance Company is not statutorily liable to cover cases if persons, travelling in a goods vehicle and become victims of accidents.
20. Sri Seetharama Rao, learned Counsel however submitted that judicial policy and discipline clearly requires pronouncements by the Supreme Court must be treated as binding by the Courts in India and since in Mallawwa’s case, supra, it has been authoritatively held that Insurance Company is not liable, it is not open for the Courts to rely on Dundamma’s case and hold Insurance Company liable during the period stated therein and relied on the decision of the Supreme Court in C.N. Rudramurthy v K. Barkathulla Khan and Others . In the said case, Supreme Court held that where the Supreme Court lays down the law applicable to a particular case it was not open to the High Court to consider or rely on any supposedly conflicting decision. It has to be said that there is no conflict in the laws laid down between Mallawwa’s case and Dundamma’s case, supra, as already stated above.
21. Learned Counsel nextly relied on the decision in Central India Spinning, Weaving and Manufacturing Company Limited, the Empress Mills, Nagpur v Municipal Committee, Wardha, of the Supreme Court and read to me the following passage:
“The argument that in accordance with the current authority of the different Courts of India, a different interpretation should not be placed on the words of the section is of little avail in a case where the decision has not been acquiesced in for long or the authorities are not absolutely unanimous and moreover it is not a case of disturbing the course of construction which has continued unchallenged for such a length of time as to acquire the sanction of continued decisions over a very long period and in such a case therefore there is no principle which will preclude the Supreme Court from correcting the error”.
22. I am unable to understand how the said decision could have any application to the question involved.
23. For the reasons stated above, the findings of the Tribunal that the Insurance Company is liable cannot be faulted.
24. I do not find therefore any merit in the appeal. Appeal is dismissed.
25. Coming to Appeal No. 959 of 1990 is concerned, this appeal is filed for enhancement of compensation.
26. The claimants are the son and daughter of the deceased Sannabheemappa. Tribunal has held that Sannabheemappa was earning Rs.
1,930/- per month as salary but his take home salary was Rs. 1,477/-. The deceased was aged 52 years. Tribunal after adopting a multiplier of 9 has awarded a sum of Rs. 1,04,220/- towards loss of dependency, Rs. 5,000/- towards loss of estate and Rs. 5,000/- towards pain and suffering, Rs. 1,500/- towards funeral expenses, Rs. 1,500/- towards medical expenses and in all Rs. 1,17,200/- as compensation.
27. It is not in dispute that the deceased had still 6 years of service left and would have reached a higher salary. Taking this factor into consideration, ends of justice will be met if a sum of Rs. 1,25,000/- is awarded under all the headings as against the sum of Rs. 1,17,220/-. This appeal is partly allowed and the award of the Tribunal is modified to the extent indicated above. Respondents are liable to pay the same with interest at 6% p.a. from the date of the petition till the date of payment after deducting such sum, if any, already paid or deposited.
28. MFA No. 925 of 1990:
This appeal is filed by the same claimants as in MVC No. 302 of 1988.
29. This appeal arises against an order in MVC No. 303 of 1988. Claimants in this appeal are also the claimants in MVC No. 302 of 1988 i.e., son, daughters of deceased Shivagangamma filed the claim application seeking compensation for the death of Shivagangamma. Shivagangamma also died in the same accident that occurred on 31-1-1988 while she was travelling in the same lorry. Tribunal has awarded a sum of Rs. 33,200/- as compensation but however has held that the Insurance Company is not liable as she was admittedly a passenger in a goods vehicle travelling without any goods.
30. Insofar as the quantum of compensation awarded by the Tribunal is concerned, Tribunal has held that claimants are deprived of the loss of service of the mother and that Shivagangamma was only a housewife.
31. Having regard to the facts stated by the Tribunal that Shivagangamma was only a housewife and the children are only deprived of her services till they attained majority, compensation awarded cannot be held to be inadequate.
32. Tribunal has exonerated the Insurance Company from its liability on the ground that the deceased was travelling as a paid passenger in the goods vehicle without any contract to carry her goods.
33. This finding also cannot be faulted as the benefit of the principle of stare decisis in Dundamma’s case, supra can extend only to a passenger travelling with goods in a goods vehicle. Hence the findings does not call for interference.
34. Appeal dismissed.
35. MFA No. 721 of 1990:
The deceased in the case was a child of 3 years travelling in the same lorry along with Sannabheemappa and Shivagangamma.
36. Tribunal has awarded a sum of Rs. 5,500/- as compensation.
37. Having regard to the minimum compensation that was required to be paid for the death of a person under Section 92-A of the M.V. Act, 1939, claimants are entitled to a compensation in a sum of Rs. 15,000/-. This sum, the owner of the lorry alone is liable to pay as held by the Tribunal with interest at 6% p.a.
38. Appeal is partly allowed and the compensation is enhanced to Rs. 15,000/- as against the sum of Rs. 5,500/- awarded by the Tribunal.
39. In the result, the following order is passed:
MFA No. 452 of 1990 is dismissed.
MFA No. 959 of 1990 is partly allowed.
MFA No. 925 of 1990 is dismissed.
MFA No. 721 of 1990 is partly allowed.