JUDGMENT
Shiv Kumar Sharma, J.
1. Cluster of these appeals raises meaningful question -Whether the insurer is liable to pay compensation to the dependents of the passengers who were travelling in a goods vehicle (without any authority of owner of the goods) that met with an accident, on account of which some passengers died and others suffered bodily injury.
2. This question arises in the circumstances set out below:
On May 19, 1997 about 50-60 persons along with three ‘TAZIAS’ were proceeding from Dug to Vinayka Bandh in a truck No. RJ 20G 0978. Around 7.15 PM upper Canopy of TAZ1A touched electric wire and truck caught fire as a result of which several persons died and many others sustained injuries. As many as 32 claim petitions were filed in the Motor Accident Claims Tribunal Jhalawar (for short ‘Tribunal’). Learned Tribunal passed the award in favour of claimants on September 13, 2005 holding that since driver carried passengers in the truck without the knowledge of the truck owner, it cannot be said that terms and condition of the policy had been violated willfully. The learned Tribunal held appellant Insurance Company liable to pay compensation to the dependents of the deceased and the injured.
3. Before considering rival submissions it would be appropriate to notice the provisions contained in Section 147 of the Motor Vehicles Act, 1988 after being amended by the Motor Vehicles (Amendment) Act, 1994, that reads as under:
147. Requirements of policies and limits of liability-
(1) In order to comply with the requirements of this chapter, a policy of insurance must be a policy which-
(a) x x x
(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, including owner of the goods or his authorised representative carried in the vehicle 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)x x x
4. Before the Tribunal it was urged on behalf of the appellant insurer that the insurer would not be liable to pay compensation for the death of the deceased or the injuries sustained by the persons who were going in a goods vehicle and met with death and received injuries on account of an accident. The Tribunal did not find merit in the contention and decided against the insurer.
5. Learned Counsel for appellant made following submissions:
(i) The vehicle insured by the appellant was Goods Carriage and no premium had been charged by the appellant for liability of any passengers being carried therein.
(ii) The Tribunal committed error in holding that the driver of the truck having carried passengers therein without the consent/knowledge of the owner and consequently the terms and conditions of the policy of insurance having not been willfully violated by the owner of the truck, therefore, the appellant was liable to pay the compensation.
(iii) The Tribunal erred to hold that since the persons travelling in the truck had not paid fare the appellant was liable to pay the compensation.
(iv) The factum of insured’s knowledge was immaterial since the instance case was not of breach of the policy.
6. I have pondered over the submissions advanced before me and scanned the case law placed for my perusal.
7. The Apex Court had occasion to consider the Motor Vehicle (Amendment) Act, 1994 in New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 : RLW 2003(2) SC 213 and it was indicated in para 9 thus:
In Satpal case the Court assumed that the provisions of Section 95(1) of the Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amendment Act of 1994 is examined particularly Section 46, by which the expression “injury to any person” in the original Act stood substituted by the expression “injury to any person including owner of the goods or his authorised representative carried in the vehicle.” the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expression “to any person” it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of Clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purpose of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of 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 object 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 authorised representative carried in the vehicle” which was added to the preexisting expression “injury to any person” is either clarificatory or amplification of the preexisting 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. The judgment of this Court in Satpal case therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of the goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or has representative dies of suffers any bodily injury.
8. It is therefore manifest that even after the amendment of 1994, the effect of Section 147 in regard to persons other than the owner of the goods or his authorised representative, does not change. Now the owner of the goods or his authorised representative would be covered by the insurance policy of goods vehicle but the insurer would not be liable with respect of gratuitous passenger.
9. View expressed by three Judge Bench of Hon’ble Supreme Court in New India Assurance Co. v. Asha Rani (supra) was reiterated in National Insurance Co. v. Bommithi Subbhayamma 2005 (2) TAC 1 (SC) National Insurance Co. v. Challa Bharathamma Pramod Kumar Agrawal v. Mushtari Begum and National insurance Co. v. V. Chinnamma .
10. Undeniably the deceased and the injured persons travelling in Truck No. RJ 20 G 0978 were neither the owner of goods nor were the authorised representatives of the owner, therefore it was not compulsory for the insurer in view of Section 147 even after amendment of 1994, to get the goods vehicle insured for the passengers who do not come within the definition of authorised representative of the owner. It was not the intention of the Legislature while amending Section 147 in 1994 to provide for the liability of the insurer with respect to passengers who were not authorised by the owner of the goods. In such a situation the vehicle owner cannot be permitted to plead that since he had no knowledge of the fact that his driver was carrying the passenger, he was not liable to pay compensation, Ratio indicated in Sohan Lal Passi v. P. Sesh Reddy is not applicable to the facts of the instant case.
In that case their Lordships of the Supreme Court propounded as under:
While interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had willfully violated the condition of the policy by allowing a person not duly licensed to driver the vehicle when the accident took place, the insurer shall be deemed to be a judgment debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act.
The question of violation of condition of the policy is not involved in the instant case.
11. In view of the aforesaid pronouncements of the Hon’ble Supreme Court, the impugned award qua the appellant New India Assurance Co. cannot be sustained and I set it aside only to the extent of liability of the appellant. I however make it clear that the claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accident Claims Tribunal from the owner of the vehicle. The appeals are allowed as indicated above. No costs.