JUDGMENT
Page 1040
1. Notices were issued to respondent No. 6 both in the limitation matter as also in the admission matter. The limitation petition was not opposed by the respondent by filing any rejoinder. Hence, the limitation petition is allowed and the delay in filing the appeal is condoned.
2. We have heard learned Counsel for the appellant and the respondents.
3. This appeal is directed against the Judgment and Award dated 24.12.2001 passed by 1st Additional District Judge-cum-Motor Vehicle Accident Claims Tribunal, Saraikela in Compensation Case No. 53 of 1997 whereby the Tribunal has allowed the claim application and awarded a sum of Rs. 1,37,000/- to the claimants/respondents.
4. The facts of the case lie in a narrow compass:
The claimants filed compensation case No. 53 of 1997 claiming compensation of Rs. 5,30,000/-(rupees five lacs thirty thousand) for the death of the deceased Kashi Nath Mandal who died in a motor vehicle accident. It was alleged that on the relevant date i.e. 29.1.1997 a truck bearing registration No. BHN 5609 was engaged for delivery of bricks to the Customer. The deceased as owner of goods was travelling in the truck for delivery of goods. While he was returning back, the vehicle met with an accident due to rash and negligent driving of the truck. The deceased received multiple injuries and ultimately succumbed to the injuries in the hospital. The owner of the truck contested the case on the ground that the vehicle was not being driven rashly and negligently. It is stated that at the time of accident the vehicle was insured with the respondents-Insurance Company vide policy No. 31/54100/04676 and therefore compensation, if any, is payable by the Insurance Company. Respondent-Insurance Company also contested the case on the ground inter alia that the truck in question was a goods carrying vehicle and the deceased was a gratuitous passenger in the vehicle and, therefore, the Insurance Company has no liability under the policy.
5. Various documents including F.I.R., charge sheet, driving license etc. were filed and proved in this case. The Tribunal found that the truck had valid road permit and the owner of the truck has not violated any of the terms and conditions of the policy. It has come in the evidence that the deceased was doing brick Klin business and other business and he was earning Rs. 4500/- per month. The Tribunal came to a finding that the deceased was accompanying with the truck as owner of the goods to supply brick to the customer. However, the Tribunal relied upon the decision of the Supreme Court in the case of “Krishna Kumar Agarwal and Anr. v. Mostt. Komiya Devi and Ors.”. (1999)1 PLJR-870 and held that Insurance Company is not liable to pay compensation. Hence this Appeal by the owner of the vehicle.
6. Mr. R.S. Mazumdar, learned Counsel for the appellant assailed the impugned award as being contrary to the facts and evidence on record. Learned Counsel submitted that admittedly the deceased was traveling in the truck as owner of the goods for supply of brick to the customer. Alter delivery of brick he was returning back and the vehicle met with an accident. According to the learned Counsel, the Insurance Company is liable to pay compensation.
7. On the other hand, Mr. Alok Lal, learned Counsel appearing for the Insurance Company submitted that the vehicle in question is a goods carrying vehicle, the Page 1041 Insurance Company is not liable to pay compensation. According to the learned Counsel the deceased was a gratuitous passenger. In this connection learned Counsel relied upon the decision of the Supreme Court in the case of “National Insurance Company Ltd. v. Bommithi Subbhayamma and Ors.“(2005)2 TAC-1. and in the case of “M.V. Jayadevappa and Ors. v. Oriental Fire and General Insurance Co. Ltd., and Ors.“(2005)2 TAC-5
8. Section 147 of the M.V. Act, 1988 enjoins the insurer certain requirements in relation to the use of particular motor vehicle. Those requirements inter alia are that a policy must satisfy a person or class of persons who are insured with respect to their liability to third party, policy must satisfy extent of liability which must extend to the extent specified in Sub-section (2) and (3) of Section 147 of the Act. Sub-section (1) of Section 147 which is relevant in the instant case is quoted herein below:
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) is issued by a person who is an authorized insurer; and
(b) insures the person of 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 authorized 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) 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:
9. The word “injury to any person, including owner of the goods or his authorized representative carried in a vehicle” has been inserted by virtue of 1994 amendment in the Act (Act 54 of 1994). A perusal of Section 147(1)(b)(i) clearly shows that the insurer is liable to indemnify the owner of the goods vehicle against any liability which may be incurred by him in respect of death or bodily injury to any person including owner of the goods or his authorized representative carried in the vehicle. The said amendment came into effect from 14.11.1994. The law has now been set at rest by the Supreme Court that the Insurance Company and the owner of the vehicle are liable to indemnify the claimants for death or bodily injury sustained by the owner of the goods, traveling in a goods carrying vehicle along with his goods, for hire or reward.
10. In the case of “National Insurance Company Ltd. v. Baljit Kaur“, the amended provisions of Section 147 of the Act has been considered by the Supreme Court and their Lordships observed :
It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to Page 1042 provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.
11. Now, we shall discuss the ratio decided by the Supreme Court in the case of “”National Insurance Company Ltd. v. Bommithi Subbhayamma and Ors. (Supra) and in the case of “M.V. Jayadevappa and Ors. v. Oriental Fire and General Insurance Co. Ltd., and Ors. (Supra) as relied upon by the learned Counsel appearing for the Insurance Company. In National Insurance Company v. Bommithi case (supra) the fact was that the deceased was traveling in a lorry which met with an accident resulting in death of passenger. The Tribunal was of the opinion that the Insurance Company was not liable to pay compensation as the deceased was traveling in a lorry as a gratuitous passenger. The said award passed by the Tribunal was however, reversed by the High Court. The matter came to the Supreme Court. Their Lordships held that by reason of amendment made in Section 147 of the Act the position of gratuitous passenger has not been changed. However, their Lordships following the earlier decision referred in Asha Rani Case” (2003) 2 SCC 223 held that the owner of the goods or his authorized representative have been included by amendment and they shall be covered by the policy of insurance in respect of the goods vehicle. Similar view has been taken in M.V. Jayadevappa (Supra) case. In that case also the deceased was traveling in a lorry as a gratuitous passenger and not as an owner of the goods and therefore, their Lordships held that the Insurance Company is not liable for payment of compensation.
12. In the instant case, the only question that falls for consideration is as to whether the deceased was traveling as a gratuitous passenger or as owner of the goods in the said vehicle.
13. In the claim application it has been categorically stated in Column 23 that on 29.1.1997 the deceased Kashi Nath Mandal reserved the truck bearing registration No. BHN 5609 to transport bricks from his own klin to different place as per demand of the customer. Because the employees of the aforesaid truck were not knowing the delivery place, the deceased was traveling as the owner of the goods in the aforesaid vehicle, which met with an accident. The owner of the vehicle in his written statement/show cause has not disputed the facts. In paragraph 9 of the show cause, it is admitted that deceased had gone to village Kalapathal along with his bricks to deliver the same and after delivery when the truck was returning the accident took place. It was also stated that the deceased had reserved the truck for transportation of bricks. The Insurance Company in their show cause has not denied the statements made in the claim petition, rather it is stated that plea of the claimant that the deceased was traveling along with bricks cannot be accepted.
14. The claimants have led both oral and documentary evidence and examined witnesses. P.W.1 who is widow of the deceased has narrated the story and deposed that her husband was brick klin owner and on the relevant date he was traveling in a vehicle along with his brick for delivery to the customer when accident took place. P.W.2 and 3 have also supported the aforesaid facts. In the F.I.R (Ext. 1) lodged by the brother of the deceased, it was alleged that on 29.1.1997 deceased was traveling with his bricks for delivery to the customer and the accident took place. Neither the owner nor the insurer has examined any witness to contradict the evidence adduced by the claimants.
Page 1043
15. From the pleadings and the evidence adduced by the claimant it is manifestly clear and proved that the deceased was traveling in the truck in question reserved for transportation and delivery of bricks of his own klin and while he was returning after delivery of goods to the customer, accident took place which resulted in his death. In our view, therefore, the Insurance Company cannot disown its liability for payment of compensation inasmuch as the amendment made in Section 147 came into effect on 14.11.1994 and the accident took place on 29.1.1997.
16. Considering the facts of the case and the law discussed herein above, this appeal is allowed and it is held that respondent-Insurance Company is liable to pay the entire amount of compensation together with interest. Accordingly, the Insurance Company is directed to pay the compensation amount together with interest by handing over a cheque to the claimant on 7.5.2006 before the Lok Adalat, which is scheduled to be held in the High Court premises.