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FA/2557/2007 11/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2557 of 2007
=========================================================
SOMABEN
WD/O RANIYABHAI MANIYABHAI GANAVA & 3 - Appellant(s)
Versus
KALUBHAI
JIVABHAI PARMAR & 2 - Defendant(s)
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Appearance
:
MR
RAJESH K SHAH for
Appellant(s) : 1 - 4.
None for Defendant(s) : 1 - 2.
MR RAJNI H
MEHTA for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/09/2008
ORAL
ORDER
Heard
learned advocate Mr. RK Shah on behalf of appellants claimants,
learned advocate Mr. SB Parikh for learned advocate Mr. RH Mehta
appearing for respondent no. 3 Insurance company.
In
the present appeal, appellants have challenged award passed by Motor
Accident Claims Tribunal, Kheda at Nadiad in MACP no. 1856/1992 exh
32 dated 7/4/2003. The claims Tribunal has exonerated insurance
company and directed that award of compensation of Rs. 3,37,000/- to
be recovered from driver and owner with 9% interest.
Learned
advocate Mr. Shah submitted that deceased was an employee of owner
traveling with goods. Therefore, insurance company is liable for
payment of compensation. He submitted that claims Tribunal has not
considered evidence, which are on record and come to contrary
conclusion. Therefore, tribunal has committed gross error in passing
an award. Therefore, present appeal is filed.
Learned
advocate Mr. Parikh appearing for respondent no. 3 insurance company
raised contention that written statement was filed by insurance
company vide exh 25 denying the averment made in claim petition and
also raised contention that accident occurred on 2/8/1992 at about
9.00 hrs on public road between village Nawali and Napad with
vehicle tempo being a No. GJ-7-T-4819 driven by opponent no. 1 in
rash and negligent manner but deceased was traveling in said tempo
being an unauthorized passengers. Therefore, insurance company is
not liable to pay compensation.
He
submitted that it is a clear breach committed by owner. Therefore,
terms and conditions of insurance policy is violated by owner and
there was no statutory insurance available in favour of claimants
because of old act applicable to the said accident. Therefore, he
submitted that claims Tribunal has rightly exonerated insurance
company.
I
have considered submissions made by both learned advocates and
considering award passed by claims Tribunal, Nadiad. The claim was
made by claimant of Rs. 7,50,000/-. The deceased Raniyabhai
Maniyabhai Ganava died in said accident dated 2/8/1992. According
to claimants, deceased was going for work of his employer Sheth
Lakhubhai Contractor with his goods after fixing the fare for
transportation. The driver of said tempo had driven tempo in rash
and negligent manner and at the place of accident tempo went of the
road and deceased was fell down from tempo and received injuries.
The deceased was taken to Krishna Hospital at Karamsad. Thereafter,
he referred to SSG Hospital, Baroda, where he died during treatment
about 14.30 hrs.
In
the written statement, vide exh 25, insurance company denied
averment made in claim petition. According to insurance company,
deceased was traveling as an unauthorized passenger in goods
vehicle, it amounts to breach of policy. Therefore, company is not
liable to pay compensation to claimants.
The
claims Tribunal has framed the issue vide exh 20 and thereafter
matter has been examined by claims Tribunal on merits.
The
claims Tribunal has come to conclusion that accident took place due
to rash and negligent driving of opponent no. 1 driver of tempo No.
GJ-1-T-4819. The claims Tribunal has examined issue whether
insurance company is liable or not? That aspect has been discussed
in detailed in para 8 and 9, which are relevant, therefore, quoted
as under:
?S8. The
opponent no. 1 driver of the vehicle tempo is liable to pay
compensation to the petitioners for his tortious act. The opponent
no. 2 is the owner of the said tempo and opponent no. 2 has not
denied the ownership of said tempo. The R.T.O. certificate and the
permit of the vehicle show the name of the opponent no. 2 as a
registered owner of the said vehicle. The insurance policy is also
taken in the name of the opponent no. 2 for the said tempo.
Therefore, the opponent no. 2 being the owner of vehicle involved in
the accident and the opponent no. 1 having driven vehicle while he
is employment of the opponent no. 2 with consent and convince of the
opponent no. 2, the opponent no. 2 would be liable to pay the
compensation under the principles of vicarious liability.
Therefore, both the opponent no. 1 and no. 2 are held liable to pay
the compensation to the petitioners as their joint and several
liability.
9. The
learned advocate Shri C. G. Patel for the opponent no. 3 Insurance
company has submitted that the deceased was traveling in the goods
vehicle of tempo with the goods of scenting as per allegations of
the petitioners. The said allegations of petitioner is supported by
the deposition of petitioner no. 1 Samaben exh 26. So according to
the petitioners themselves the deceased was traveling in a goods.
The traveling with the goods by owner of the goods of the agent of
the owner of the goods the liability of the Insurance company would
not arise as there would be a breach of the policy. The learned
advocate Shri. C. G. Patel has relied on the decision of Supreme
Court in case of Smt. Mallawwa vs. Asha Rani AIR 2003 SUPREME COURT
607. It is held in para 9 and para 24 to 29 that:-
9. …
If the Motor Vehicles Amended Act of 1994 is examined,
particularly Section 46 of Act 6 of 1991 by which 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 authorized representative carried in the vehicle’ the
conclusion is irresistible that prior to that aforesaid amendment
Act on 1994, even if widest interpretation is given to the
expression ‘to any person’ it will not cover either the owner of
the goods or his authorized representative being carried in the
vehicle. The objects and reasons of clause 46 also states that it
seeks to amend authorized representative carried in the vehicle
for the purpose of liability under the insurance policy. It is no
doubt true that sometimes the legislation amends the law by way of
amplification or 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 amendment of 1994, and as it stands
subsequent to its amendment in 1994 and bearing in mind the
objects and reasons engrafted in the amended provisions referred
to earlier, it is difficult for use to construe that the
expression including owner of the goods or his authorized
representative carried in the vehicle which was added to the pre-
existed expression ‘injury to any person’ is either clarificatory
or amplification of the pre-existing statute. On the other hand
it clearly demonstrates that the legislature wanted to bring
withing 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 authorized representative being carried in a
goods vehicle when that vehicle meet with an accident and the dies
or suffers bodily injury. The judgement of this Court in Satpal’s
case, therefore, must be held to have not been correctly decided
and the impugned judgement 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 goods of his authorized
representative on being carried in a goods vehicle when that
vehicle meets with an accident, and the owner of goods or his
representative dies or suffers any bodily injury.
24. We
have further, noticed that section 147 of 1988 Act prescribing the
requirements of an insurance policy does not contain a provision
similar to clause (ii) of the proviso appended to section 95 of
1939 Act. The decisions of this Court in Mallawwa’s case, (supra)
must be held to have been rendered having regard to the
aforementioned provisions.
25. Section
147 of 1988 Act, inter alia, prescribes compulsory coverage
against the death of or bodily injury to any passenger of ‘public
service vehicle’. Proviso appended thereto categorically states
tat compulsory coverage in respect of drivers and conductors of
public service vehicle and employees carried in a goods vehicle
would be limited to the liability under the Workmen’s Compensation
Act. It does not speak of any passengers in a ‘goods carriage.’
26. In
view of the changes in the relevant provisions in 1988 Act
vis-a-vis 1939 Act, we are of the opinion that the meaning of the
words ?Sany person?? must also be attributed having regard to
the context in which they have been used i.e. ‘a third party’.
Keeping in view the provisions of 1988 Act, we are of the opinion
that as the provisions thereof do not enjoin any statutory
liability on the owner of a vehicle, to get his vehicle insured
for any passengers traveling in a goods vehicle insured for any
passengers traveling in a goods vehicle, the insurers would not be
liable therefore.
27. Furthermore,
sub-clause (1) of clause (b) of subsection (1) of Section 147
speaks of liability which may be incurred by the owner of a
vehicle in respect of 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 he vehicle in a public place, whereas sub-clause (1)
thereof deals with liability which may be incurred by the owner of
a vehicle against the death of or bodily injury to any passengers
of a public service vehicle caused by or arising out of use of the
vehicle in a public place.
28. An
owner of a passenger carrying vehicle must pay premium for
covering the risks of the passengers. If a liability other than
the limited liability provided for under the Act is to be enhanced
under an insurance policy, additional premium is required to be
paid. But if the ratio of the Court’s decision in new India
Assurance Company Vs. Satpal Singh & ors. (2001) 1 SCC 237 is
taken to its logical conclusion, although for such passengers, the
owner of a goods carriage need not take out an insurance policy,
they would be deemed to have been covered under the policy where
for even no premium is required to be paid.
29. We
may considered the matter for another angle. Section 149(2) of the
1988 Act enables the insurers to raise defences against the claim
of the claimants. In terms of clause (s) of subsection (2) of
Section 149 of the Act one of the defences which is available to
the insurer is that the vehicle in question has been used for a
purpose not allowed by the permit under which the vehicle was
used. Such a statutory defence available to the insurer would be
obliterated in view of the decision of this Court in Satpal
Singh’s case (supra).
The
Supreme Court in case of Oriental Insurance Co. Ltd., Vs.
Devireddy Konda Reddy (2203) 2 Supreme Court Cases held that:-
?SThe
difference is the language of ?Sgoods vehicle as appearing in the
Motor Vehicles Act 1939 and ?Sgoods carriage?? in the Motor
Vehicles Act, 1988 if of significance. A bare reading of the
provisions makes it clear that the legislative intent was to
prohibit a goods a vehicle from carrying any passenger. This is
clear from the expression ?Sin addition to passengers?? as
contained in the definition of ?Sgoods vehicle?? in the old Act.
The position becomes further clear because the expression used is
?Sgoods carriage?? which is solely for the carriage of ?Sgoods??,
carrying of passengers in a goods carriage is not contemplated in
the Motor Vehicles Act, 1988. There is no provision similar to
clause (ii) of the proviso appended to Section 95 of the old Act
providing requirement of insurance policy. Even section 147 of
the 1988 Act mandates compulsory coverage against death of or
bodily injury to any passenger of ?Spublic service vehicle??.
The proviso makes it further clear that compulsory coverage in
respect of drivers and conductor of public service vehicle and
employees carried in goods vehicle would be limited to liability
under the workmen’s compensation Act, 1923 (in short ?Sthe WC
Act??). There is no reference to nay passengers, therefore, is
that provision of the Act do not enjoin any statutory liability on
the owner of a vehicle to get his vehicle insured for any
passenger traveling in a goods carriage and the insurer would have
no liability therefore.??
In
view of the above decisions of Supreme Court, the new Motor
Vehicles Act, 1988 came into force and even after amendment of
1994 the insurer will not liable for paying the compensation to
the owner of goods of his authorized representative or in a goods
vehicles meets with an accident and the owner of goods dies and
suffers injuries. Therefore, in this case the opponent no. 3
insurance company will not be liable to pay the compensation to
the petitioners. Therefore, the issue No. 1 is partly held in
affirmative for opponent no. 1 and 2 only.??
The
claims Tribunal has considered the case of Smt. Mallawwa, Asha Rani,
Oriental Insurance Co. Ltd., Vs. Devireddy Konda Reddy and case of
Satpal Singh. The Tribunal has also considered amendment made in
Act of Motor Vehicles Act 1988 on 14/11/1994 that insurer will not
liable for paying compensation to owner of goods or his authorized
representative in goods vehicle meets with accident then owner of
the goods died or suffers injuries.
Therefore,
claims tribunal has come to conclusion that insurance company
opponent no. 3 is not liable to pay compensation to claimants.
Ultimately, claims Tribunal has exonerated insurance company.
Therefore,
according to my opinion, the view taken by claims Tribunal is
perfectly justified. Looking to the amendment made in motor
Vehicles Act on 14/11/1994 prior to that accident occurred on
2/8/1992. Therefore, if any person traveling in goods vehicle even
along with owner of goods not entitled for any amount of
compensation from insurance company as it amounts to clear breach of
insurance policy, because in goods vehicle passenger is not
permitted to travel and for that no insurance is to be taken by
owner and according to insurance policy being a contract between
insured and insurer, liability for unauthorized passenger is not
accepted by insurance company. There is no statutory liability of
insurance company. Therefore, claims Tribunal has rightly examined
issue of liability.
Therefore,
claims Tribunal has not committed any error, which would require
interference by this Court. Hence, there is no substance in present
appeal. Accordingly, present appeal is dismissed.
Today,
first appeal is dismissed by this Court, therefore, no order is
required to be passed in civil application. Accordingly, civil
application is disposed of.
(H.K.RATHOD,
J)
asma
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