JUDGMENT
V. Jagannathan, J.
Page 1614
1. The Insurance Company is in appeal being aggrieved by the liability being put on it by the MACT, Bangalore City, to satisfy the award amount of Rs. 37,920/- in favour of the claimant sand the main ground urged in the appeal is that the claimant travelled as a passenger in a goods vehicle and therefore, the risk is not covered by the policy in question.
2. I have heard the learned Counsel for the parties and perused the evidence on record. The appellant’s counsel Shri. Jaiprakash submitted that it is not in dispute that the claimant travelled in the lorry in question as a gratuitous passenger and this is evident from the very evidence of the claimant himself and therefore, the Tribunal could not have put the liability on the Insurance Company. On the other hand, the learned Counsel for Respondent No. 4, i.e. owner of the lorry submitted that the claimant travelled in the lorry in question because the lorry driver was new to Bangalore and was looking for an address and to help the lorry driver, the claimant being a Traffic Policeman, got into the lorry and on the way, the accident occurred when the said lorry bearing ND. KA-17 1931 collided with the Engine No. KA-01-G 42. Therefore, it cannot he said that the claimant was a passenger in a goods vehicle and as such, the liability put on the appellant-Insurance Company by the Tribunal cannot be termed as erroneous in law.
3. Learned Counsel Sri. Shripad Shastri, for respondent-claimant, on his part submitted that, though the claimant travelled in the lorry in question, he was travelling in the said lorry in the capacity of a ‘police officer’ and as he was asked to show the address, the respondent-claimant, therefore, had to assist the driver in showing the address and as such it is to be deemed that the respondent-claimant was travelling in the vehicle in question as a ”police officer on duty and having regard to Rule 100 of the Karnataka Motor Vehicles Rules, 1989 (for short ‘Rules 1989’), the Insurance Company cannot escape its liability. In support of the said submission learned Counsel placed reliance on a decision of this Court in the case of United India Insurance Co. Page 1615 Ltd. v. Sri. Chandranna and Ors. ILR 1998 KAR. 523 contend that in the said decision it was held that where it was found that two Police Constables after completing their duty, ware proceeding towards the Police Station and when the accident occurred in between the two vehicles, the liability of the insurer cannot be avoided. It was also submitted that a plain reading of Section 147 of the Rules 1989 would also make it clear that the liability will arise in respect of ‘any person’ including the owner of the goods or his authorised representative and therefore the case of the claimant herein comes within the expression ‘any person’ and as such, the Insurance Company cannot be absolved of it’s liability.
4. It is settled law that in respect of a person travelling in a goods vehicle, unless it is established that the said person travelled as a owner of the goods or comes within any of the categories mentioned in Section 147(1)(b)(i), the question of making the Insurance Company liable, will not arise. It is also settled law that in respect of a person travelling as a gratuitous passenger in a goods vehicle, the Insurance Company cannot be made liable. This is the legal position emerging from various decisions of the Apex Court including the decision in the case of National Insurance Co. Ltd. v. Bommithi Subbrayanna and Ors. . In the case of Oriental Insurance Co. Ltd. v. Meena Variyal and Ors. 2007 ACJ 1284, which is referred to by the learned Counsel for the Insurance Company, the Apex Court while dealing with the scope of Section 147(1) of the Motor Vehicles Act, 1988, has observed at paras 10 and 11 thus:
10. “Chapter XI of the Act bears a heading “Insurance of Motor Vehicles Against Third Party Risks”. The definition of ‘third party’ is an inclusive one since Section 145(g) only indicates that ‘third party’ includes the Government. It is Section 146 that makes it obligatory for an insurance to be taken out before a motor vehicle could be used on the road. The heading of that section itself is ‘Necessity for insurance against third party risk’. No doubt, the marginal heading may not be conclusive. It is Section 147 that sets out the requirement of policies and limits of liability. It is provided therein that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which is issued by an authorised insurer; or which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by the owner in respect of the death of or bodily injury or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. With effect from 14.11.1994, injury to the owner of goods or his authorised representative carried in the vehicle was also added. The policy had to cover 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. Then, as par the proviso, the policy shall not be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in Page 1616 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 Workman’s Compensation Act, 1923 in respect, of the death of, or bodily injury to, an employee engaged in driving the vehicle, or who is a conductor, if it is a public service vehicle or an employee being carried in a goods vehicle or to cover any contractual liability. Sub-section (2) only sets down the limits of the policy. As we understand Section 147(1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless, it be a liability arising under the Workmen’s Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as a owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by a authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under Workmen’s Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under Clause (h) (sic (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act.
11. The object of the insistence on insurance under Chapter XI of the Act thus a seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen’s Compensation Act, 1923, in respect of the driver the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficult to hold that the insurance company, in the case on hand, was liable to indemnify the owner, the employer company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted, that the liability is not one arising under the Workmen’s Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant whether the deceased could be understood Page 1617 as a workman coming within the workmen’s Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that insurance company is not liable to indemnify the insured in the case on hand.
5. Having regard to the above proposition of law laid down by the Apex Court and in the case on hand, as there is nothing to indicate that the respondent-claimant travelled as owner of the goods or for that matter “as a police officer in uniform and on duty”, it is difficult to agree with the contentions put forth by the learned Counsel Sri. Shripad Shastry, for respondent-claimant. No doubt, Rule 100 of Rules 1989 provides that the police officer in uniform travelling on duty, may be carried in a goods vehicle. But in the case on hand, there is no evidence to show that, first of all, the claimant travelled in the lorry in question in uniform and secondly, even if it is taken as having travelled in uniform in the said vehicle, there is no material placed to show that the claimant travelled on duty. On the other hand, the evidence of the claimant clinches goods to establish, that after his duty got over and while he was walking on the footpath, the vehicle coming from Shivajinagar side, asked him an address of Kalasipalya, and in order to show the place, the claimant got into the lorry and sat in the cabin and on the way the said vehicle dashed to a Fire Engine near Raj Bhavan. Therefore it is clear that the claimant was not on duty at the time of travelling in the lorry in question. No evidence is also placed to show that the duty of the Police Constable encompasses the duty of showing the address to anybody and every body who travels within the City. Therefore, the arguments of the learned Counsel for the respondent-claimant that the claimant was travelling on duty, cannot be accepted. It has to be held that the claimant was travelling as an unauthorised passenger or as a gratuitous passenger in a goods vehicle. The case, therefore, does not come within the ambit of Rule 100 of Rules 1989 also. The Rule cited by the learned Counsel for the respondent-claimant also does not come to his aid as the facts and circumstances of the said case and the one which we are dealing now, are entirely different. Since the claimant has failed to establish that at the time of his travelling in the lorry in question, he was on duty, the only inference can he drawn is that, he trevelled as a gratuitous passenger in the vehicle.
6. For the foregoing reasons, the liability put on the appellant-Insurance Company by the MACT is unsustainable in law and accordingly, the said part of the order of the MACT is set aside and consequently, the liability will be on the owner of the lorry, in which the claimant travelled as a passenger, to satisfy the award amount.
7. In view of the above, the Appeal, therefore, stands allowed and the amount in deposit shall be refunded to the appellant-Insurance Company.
The award amount shall be deposited by the insured before the Tribunal, within a period of there months from this date of this order.