N. Kumar, J.
1. These appeals are taken up together for consideration and disposed of by this common order since, they are preferred against a common judgment, but two different awards, as common questions of law do arise for consideration in these appeals and cross objection.
2. One Sri Ramachandra was the claimant in MVC No. 1140/ 1990, Sri Thukarama Adappa is the claimant in MVC No. 1442/ 1990. Both were injured in a motor vehicle accident and they preferred two independent claim petitions and both the claim petitions were disposed of by a common judgment on 6.12.2000 after holding a common trial. The insurance company on whom the liability to pay the award amount is foisted has preferred these appeals challenging the liability to pay the entire amount and contend their liability is limited to the extent mentioned in the Contract of Insurance. They are not challenging the quantum of compensation. Ramachandra, the claimant in MVC No. 1140/1990 has preferred Cross Objection No. 74/2001 in MFA 1147/2001 seeking enhancement of compensation. During the pendency of these appeals he died on 16.2.2005.
3. The facts in brief which has given raise to these appeals are as under:
The claimant-Ramachandra was an employee of M/s. Nayak and Sons, the owner of the Matador Van bearing No. CNO 8347. Thukarama Adappa was a representative of the owner of the goods who had hired the aforesaid Matador Van for transporting the goods of the hirer, M/s. Sangrila Biscuit Company. Both these claimants were travelling in the Matador Van from Udupi towards Mangalore on 16.5.1990. When the said Van reached Panambur at about 9.30 PM, a bus bearing registration No. CRX 9059 dashed against this Matador Van. Due to the said accident both the claimants sustained severe injuries and they were shifted to the hospital. Both the claimants have preferred two independent claim petitions seeking compensation for the injuries sustained. To the said claim petition they have made the driver, the owner and the insurance company which had insured the Matador Van, as well as the owner, insurer and driver of the bus as party-respondents. The drivers and the owners of both the vehicles did not contest the matter. However, both the insurance companies filed a detailed written statement contesting the claim of the claimants on all grounds. However, they did not dispute the insurance coverage to the vehicles. The Oriental Insurance Company blamed the driver of the bus for the accident. In addition to that they specifically contended that, they have insured the Van and the liability if any is governed by the terms, conditions and limitations to the use of the policy issued by them. The New India Assurance Company Limited contested the claim accusing the driver of the Van as the cause for the accident. On the aforesaid pleadings, the Tribunal framed the following issues:
Issues In MVC No. 1140/1990 dated 27.12.1993
1. Whether the petitioner proves that while he was travelling in the involved, matador van No. CNO 8347 on 16.5.90 at about 9.30 PM near Deepak Petrol Station at Baikampadi on N.H. 17, the driver of the said matador van drove the same rashly or negligently and dashed against the City bus No. CTX 9059 coming from the opposite direction thereby causing the accident as contended?
2. Whether the third respondent proves that the above accident was entirely due to the rash or negligent driving of the City bus No. CTX 9059 by its driver only as contended?
3. Whether the petitioner proves that in the above accident he sustained grievous injuries to his person resulting in his permanent disability as contended?
4. Whether the petition is bad for non joinder of the owner and insurer of the involved City bus No. CTX 9059 as necessary parties to this petition?
5. Whether the petitioner is entitled to the compensation claimed?
6. If so, to what amount and from whom?
7. What award or order?
Issues dated 4.6.1999
1. Whether the petitioner proves that he sustained injuries due to rash and negligent driving of the driver of matador van CNO. 8347 on 16.5.90 at about 9.30 PM at Baikampady?
2. To what compensation the petitioner is entitled?
Issues In MVC No. 1442/1990 dated 22.6.1994
1. Whether the petitioner proves that while he was proceeding in a matador van No. CNO 8347 on 16.5.90 at about 9.30 AM on N.H. 17 on Mangalore-Udupi main road driven by its driver rashly or negligently in high speed, the driver of the other involved bus No. CRX 9059 drove the said bus rashly or negligently and dashed against the matador van No. CNO 8347 thereby causing the accident as contended?
2. Whether the second respondent proves that the above accident was entirely due to the rash or negligent driving or major contributory negligence of the driver of the bus No. CRX 9059 only in driving the said bus by its driver on the spot at the time of the accident as contended?
3. Whether the fourth respondent proves that the above accident is entirely due to the rash or negligent driving or major contributory negligence in driving the matador van CNO 8347 only by its driver on the spot at the time of the accident as contended?
4. Whether the petitioner proves that in the above accident he sustained grievous injuries to his person resulting in his permanent disability as contended?
5. Whether the petitioner proves that the involved bus No. CRX 9059 is insured under a valid insurance policy at the time of the accident in this case?
6. Whether the petitioner is entitled to the compensation claimed?
7. If so, to what amount and from whom?
8. What order or award?2
4. Both the claim petitions were clubbed, common evidence was recorded. Claimant-Ramachandra was examined asPW1 and the doctor Mahabala Rai who treated him was examined as PW2. The claimant-Thukarama Adapa was examined as PW3 and Doctors K. Ganeshram Kamath and Ranjan R.K who treated him were examined as PWs 4 and 5 respectively. On behalf of the respondents no oral evidence was adduced. However, by consent of parties the insurance policies of both the vehicles were produced and marked as Exs, D1 and D2. On appreciation of the aforesaid oral and documentary evidence on record, the Tribunal held that the accident was on account of the rash and negligent driving of the driver of the Van and the driver of the bus was in no way responsible. It further held that both the claimants sustained injuries in the accident and they have established actionable negligence and, therefore, they are entitled to compensation. Thereafter, it looked into the evidence of the claimants, the doctors who treated them, and also the medical records produced in the case and on the basis of the aforesaid medical evidence on record, awarded compensation under all the conventional heads, The claimant-Ramachandra was awarded a sum of Rs. 1,46,450/ -with current interest at 6% p.a. from the date of petition till realisation of the same from respondents 1 to 3, i.e. the driver, owner and the insurance company in respect of the Matador Van. Similarly, it awarded a sum of Rs. 97,345/- to the other claimant Thukarama Adapa and held respondents 1 and 2, the owner and the insurance company, are jointly and severally liable to pay the aforesaid amount with interest at 6% p.a. from the date of petition till realisation as in this case he had not made driver a party. Aggrieved by these two awards, the insurance company has preferred these appeals. The claimant Sri. Ramachandra has preferred a cross appeal against the very same Judgment and award seeking enhancement of compensation.
5. Learned Counsel for the appellant contended that, in so for as claimant-Ramachandra is concerned, as he is an employee of the owner of the goods vehicle, the liability of the insurance company to pay the compensation for the injuries sustained in terms of the policy is only to the extent of the liability arising under the Workmen's Compensation Act, 1923 and not more. The insurance company is liable to pay Rs. 43,694/- as against the award of Rs. 1,46,450/- and, therefore, he submits the aforesaid award requires to be modified. In so far as the other claimant Thukarama Adapa is concerned, he is a representative of the owner of the goods which was carried in the goods vehicle and there is no statutory liability on the insurance company to indemnify the insured in so far as compensation payable to him is concerned as the accident was prior to amendment to the new Act. But he contends that, under the terms of the policy, the insurance company had undertaken to indemnify the insured only to the extent of Rs. 10,000/- and, therefore, they are not liable to pay Ra. 97,345/- as ordered by the Tribunal. As such the award requires to be modified and the liability is to be restricted to only Rs. 10,000/-. In support of his contention he relied on several judgments of the Supreme Court, this Court and the statutory provisions.
6. Per contra, the learned Counsel appearing for the claimants contended that, as the accident has taken place after 1.7.1989 when the Motor Vehicles Act, 1988 came into force and before 14.11.1994 when Section 147 was amended, the words 'injury to any person' contained in Sub-clause (i)(b) of Sub-section (1) of Section 147 included any person travelling in the vehicle and all that has been done by way of amendment in 1994 is to amplify and clarify the meaning of the expression 'injury to any person' and, therefore, as the law stood under the old Act or under the new Act or after amendment, the insurance company is liable to pay compensation to the authorized representative of the owner of the goods carried in the vehicle. Therefore, there is no error committed by the Tribunal in foisting the entire liability on the insurance company.
7. I have gone through the judgment, awards and the entire records of the Tribunal. It discloses that the accident, actionable negligence, the injuries sustained, the treatment given, the age of the claimants, income of these claimants, the extent of disability are all not in dispute. In fact, the insurance company do not dispute the quantum of compensation awarded to both the claimants. Their challenge is only to the extent of their liability under the terms of the contract. Therefore, the questions that arise for consideration in this appeal are as under:
1) What is the liability of the insurance company in the event of any employee of the insured of the goods vehicle is injured, who is carried in the vehicle, when the said vehicle is the cause of the accident which took place on 16.5.1990?
2) What is the liability of the insurance company in so far as payment of compensation for the injuries sustained by an authorized representative of the owner of the goods carried in a vehicle, when the goods carrying the vehicle is the cause of the accident which took place on 16.5.1990?
8. Point No. (1): The date of the accident is 16.5.1990. Therefore, the Motor Vehicle Act, 1988 is the law which governs the claimant arising under this accident, Section 147 of the Act deals with requirements of policies and limits of liability. Before amendment in 1994 the said section read 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) is issued by a person who is an authorised insurer; and
(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 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:
Provided that a policy shall not be required-
(i) 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 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 the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation - For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in Sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely,-
(a) save as provided in Clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
PROVIDED that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) xxx xxxxx(4) xxx xxxxx(5) xxx xxxxx(Underlining by me)
9. By Act 54/1994 which came into effect from 14.11.1994 for words 'injury to any person' found in Sub-clause (i)(b) of Sub-section (1) of Section 147 the following words are substituted 'injury to any person, including owner of the goods or his authorized representative carried in the vehicles'.
10. The answer to the aforesaid two questions raised depend upon the interpretation to be placed to Section 147 before amendment and after amendment.
11. In this context it is useful to note what was the legal position under the old Act, A full bench of this Court in the case of National Insurance Company v. Dundamma : ILR1991KAR2045 dealing with liability of a fare paying passenger, gratuitous passenger and a passenger who is the owner of the goods held that, the insurance company is not liable 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 passenger a 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 liability shall cover only up to the extent of the number of persons permitted to toe carried in the goods vehicle under Rule 161 of the Karnataka Motor Vehicles Rules, 1963. Thus, the gratuitous passengers and fare paying passengers were held to be not covered under the insurance policy whereas a passenger who is the owner of the goods was held to be covered.
12. In the present enactment a substantial departure from the old law has been made. The definition of 'goods vehicle' contained in the old Act was omitted in the new Act and in its place 'goods carriage' is defined. The legislative intent was to prohibit goods vehicle from carrying any passenger. Carrying of passengers in a goods carriage is not contemplated in the Act whereas the same was permitted under the old Act. Section 147 of the Act mandates compulsory coverage against the death or bodily injury to any passenger of a public service vehicle. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923. There is no reference to any passenger in goods carriage. However, the Supreme Court in the case of New India Assurance Company Limited v. Satpal Singh and Ors. : AIR2000SC235 after comparing the provisions contained in Section 95 of the old Act and the corresponding new provision of Section 147 of the new Act has held that, under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passenger in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a-vis gratuitous passengers, are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force. In other words interpreting the word death or bodily 'injury to any person' it was held every one is now statutorily covered under the new Act. In other words a gratuitous passenger, fare paying passenger, passenger who is the owner of the goods who is travelling in the vehicle along with the goods, the employee, representative, everyone is covered under the new Act.
13. The Supreme Court in the aforesaid judgment was interpreting Section 147 as it stood before the Amendment Act 54 of 94 which came into force on 14.11.1994. After the said amendment the question arose when Parliament specifically covered the risk of the owner of the goods or his authorized representative carried in the vehicle, what was the intention of the parliament prior to its amendment. In a batch of writ petitions which went up to Supreme Court, the Supreme Court had an occasion to consider this question. In the case of Ramesh Kumar v. National Insurance Company Limited : AIR2001SC3363 the Supreme Court categorised the batch of cases which were pending before them into three categories. They are:
1] Cases covered under the provisions of Motor Vehicles Act, 1939.
2] Cases covered after the new Act came into force on 1.7.1989 and before the Amendment Act came into force on 14.11.1994
3] Cases which ere covered after Amendment Act came into force, i.e., from 14.11.1994 onwards.
The question raised for all these categories is,Whether the insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passengers including owner of the goods or his representative travelling in a goods vehicle?
In Ramesh Kumar's case the Supreme Court did not answer the cases arising under the second category. However, they answered the first and third category of cases. In so far as first category of cases are concerned, the Supreme Court answered in the following manner.
The cases under this category need not detain us long as this question has been directly raised and decided in the case of Mallawwa v. Oriental Insurance Company Limited : AIR1999SC589 . The Court held in the said case that, the insurance company is not liable for any damage in cases the gratuitous passengers including owner of the goods or his representative who traveled in a goods vehicle. So this category of cases are disposed of in term of this declaration that liability to pay compensation to the claimants of such person is not on the insurance company but, on the owner of the goods vehicle.
In so far as third category was concerned the Supreme Court answered as under:
The claim for the owner and his representative is not disputed even by the learned Counsel for the insurance company, after its aforesaid 1994 amendment, that insurance company is liable to pay compensation for such person even when they were travelling in a goods vehicle. This is in view of 1994 amendment in Sub-clause (i) of Section 147(1)(b) of the new Act in which the following words were brought in:...Injury to any person, including owner of the goods or his authorised representative carried in a vehicle.
Thus, this category of cases are also disposed of by declaring that compensation awarded in such cases where deceased or injured persons were travelling in a goods carriage who were owner or his authorised representative, the insurance company is liable to pay the compensation.
The second category was answered by the Supreme Court in the case of New India Assurance Company Limited v. Asha Rani and Ors. : AIR2003SC607 as under:
In Satpal's case : AIR2000SC235 , the court assumed that the provisions of Section 95(1) of 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 of Act 54 of 1994 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 authorised representative carried in the vehicle' the conclusion is irresistible that prior to the aforesaid Amendment Act of 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 authorised representative being carried in the vehicle, The objects and reasons of Section 46 also states that it seeks to amend, Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes 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 objects and reasons engrafted in the amended provision 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 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 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's case, therefore, must be held to have not be 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 goods or his authorised 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.
14. The said legal position has been reiterated by the Supreme Court in the case of Oriental Insurance Company Limited v. Devireddy Konda Reddy and Ors. : [2003]1SCR537 wherein it has been held as under:
The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore.
15. Again in National Insurance Company Limited v. Ajit Kumar and Ors. : AIR2003SC3093 the Supreme Court held as under:
The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A hare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicles from carrying any passenger, This is clear from the expression 'in addition to passenger' as contained in definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' is solely for the 'carriage of goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act'). There is no reference to any passenger in 'goods carriage
16. Subsequently, in the case of National Insurance Company Limited v. Baljit Kaur and Ors. : AIR2004SC1340 the Supreme Court held that,
In Asha Rani, it has been noticed that Sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 of the 1988 Act 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 the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
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 authorised representative remains the same. Although the owner of the goods or his authorised 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 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.
17. Last of the series of cases is in the case of National Insurance Company Limited v. V. Chinnamma and Ors. : AIR2004SC4338 where the aforesaid legal position has been reaffirmed.
18. From the aforesaid statutory provisions and the law laid down by the Supreme Court, it is clear that Chapter 11 of the Act deals with the insurance of Motor Vehicles against third party risk. Section 145 deals with the definitions whereas Section 146 deals with necessity of insurance against third, party risk. The requirement of policies or limits of liabilities are found in Section 147, Before any liability could be foisted on the insurance company, a policy of insurance must be a policy which is issued by a person who is authorized insurer. Sub-section (2) of Section 147 deals with the extent of liability of a third party covered under the said policy. In respect of damage to any property of a third party, the liability of the insurance company is limited to Rs. 6000/ -. In. respect of the liability of the 3rd parties and any passenger of a public service vehicle, the liability incurred is unlimited. The cover of insurance is against any liability, which the insured may incur in respect of death of or bodily injury to any person. By amendment Act 54/1994 which came into effect from 14.11.1994 the injury to any person includes the owner of the goods or his authorized representative carried in the vehicles.
19. The Proviso to Section 147 makes it clear the aforesaid policy shall not be required to cover liability in respect of the death, arising out of and in the course of employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of employment other than the liability arising under Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to such employee who is engaged in driving vehicle, or as a conductor or examining tickets in a public service vehicle or who is carried in a goods carriage.
20. Therefore, it follows that under Section 147, the following class of persona are covered in the case of death or bodily injury. They are:
(1) Third parties.
(2) Owner of the goods or his authorised representative carried in the goods vehicle.
(3) Any passenger of a public service vehicle.
(4) The driver who is employed by the insured who is engaged in driving the vehicle,
(5) An employee employed by the insured of a public service vehicle engaged as conductor of the vehicle or in examining the tickets of the vehicle.
(6) All employees of the insured carried in a goods carriage.
In respect of injured falling under class (1) to (3) the liability of the insurance company is unlimited. In respect of injured falling under class (4) to (6) the liability of the insurance company is restricted to the liability arising under Workmen's Compensation Act, Though in respect of class (1) to (3) referred to above, the premium is to be paid as per the terms of the contract, in respect of class (4) to (6) no premium is liable to be paid. The premium paid while taking the policy covering the risk of class (1) to (3) would be sufficient to cover the risk of class (4) to (6). In other words, the liability to pay compensation in respect of class (1) to (3) arises out of contract and the liability to pay compensation in respect of class (4) to (6) arises statutorily once the aforesaid contract is entered into. Therefore, it follows all persons who fall outside these classes/categories are not covered under the policy. They may be fare paying passengers, gratuitous passengers, employees who do not fall under the aforesaid categories, etc.,
In Satpal Singh's case, under the Act, the Supreme Court interpreting the word 'injury to any person' held, every one injured in the accident is now statutorily covered under the new Act. The liability declared as aforesaid in Satpal Singh's case is now expressly over-ruled as laying down not good law. In Asha Rani's case, Devi Reddy Konda Reddy's case, Ajit Kumar's case and Baljit Kaur's case, the Supreme Court has held that the legislative intent was to prohibit goods vehicle from carrying any passenger. Carrying passengers in a goods vehicle is not contemplated under the Act. Though the Act mandates compulsory coverage against death of or bodily injury to any passenger of a public service vehicle and compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle, the liability was limited to liability under the Workmen's Compensation Act, 1923. The legislature never intended to cover the risk of any passenger in goods carriage. The premium paid under the new Act would only cover a third party, any passenger of a public service vehicle as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. However, once such a policy is taken toy paying the premium, statutorily the employees of the insured such as driver, conductor, ticket collector and who are carried in the goods carriage, are also covered to the extent of the liability under the Workmen's Compensation Act, 1923. The legislature never intended to provide for the liability of the insurer with respect to passengers in a goods carriage, 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. Therefore, it was held injury or death to any person has to be confined only to persons who are expressly mentioned in the Section and the risk of all other persons whose name do not find a place in the section are not covered under the policy. Therefore, fare paying passengers, gratuitous passengers or even employees other than conductor and ticket collector in a public service vehicle, passengers in a goods carriage who are not employees of the insured are not covered under the policy.
21. From the aforesaid discussion the following position emerges.
1) In claims covered under the provisions of the Motor Vehicles Act, 1939, ore concerned, the Insurance Company is not liable to pay any compensation for injury sustained or death caused to gratuitous passengers, fare paying passengers, and owner of the goods or his representative who travels in the Goods vehicle, when that vehicle meets with an accident.
2) In claims covered under the provisions of the Motor Vehicles Act, 1988, arising from 1-7-1989 till 14-11-1994, the day the amendment Act came into force, the Insurance Company is not liable to pay any compensation, to the injury sustained or death caused to gratuitous passenger, fare paying passengers and owner of the goods or his authorised representative on being carried in goods vehicle, when that vehicle meets with an accident.
3) In claims covered under the provisions of the Motor Vehicles Act, 1988, after amendment i.e. from 14-11-1994 onwards, the Insurance Company is liable to pay compensation for the injury sustained or death caused to owner of the goods or his authorised representative carried in a vehicle.
4) The insurance company is statutorily liable to pay compensation to the employee of the insured engaged in driving the vehicle i.e., driver of the vehicle, employee engaged as a conductor or examining tickets of the public service vehicle, and an employee carried in goods carriage, to the extent of liability payable under the Workmen's Compensation Act, 1923 only.
22. In the light of the aforesaid legal principles, in the instant case in so far as claimant in M.V.C.No. 1140/ 1990 is concerned he is an employee of the owner of the goods vehicle. Under the Workmen's Compensation Act, 1923 he is entitled to compensation of Rs. 43,694/- whereas under the Motor Vehicles Act, he is held to be entitled to Rs. 1,46,450/-. In view of Clause (b) of Sub-section 1 of Section 147 the liability of the insurance company to indemnify the insured is limited only to the extent of Rs. 43,694/- and the amount in excess of the said amount awarded by the Tribunal is to be paid by the owner of the vehicle.
23. In so far as the other claimant Thukaram who is the claimant in M.V.C.No. 1442/1990 he is the representative of the owner of the goods, which was carried in the goods vehicle. In view of the aforesaid discussion the insurance company was not liable statutorily to indemnify the insured as the accident is prior to amendment. However, a perusal of the insurance policy shows that the insured has covered the risk of persons who are carried in the vehicle not for hire or reward, the relevant Clause 14(b) reads as under:
In consideration of the payment of an additional premium as stated in the schedule and notwithstanding anything to the contrary contained in Section-II-1(c) it is hereby declared and agreed that the company will indemnify the insured against his legal liability other than liability under statute (except Fatal Accident Act 1855) in respect of death of or bodily injury to any person not being an employee of the insured nor carried for hire or reward provided the person is
(a) The Owner or Representative of the owner of the goods.
(b) The Charterer or Representative of the Charterer of the truck.
(c) Any person directly connected with the journey in one form or another
Whilst being carried in or upon or entering or mounting or alighting from the Motor Vehicle but such indemnity is limited to the sum of rupees as mentioned in the schedule in respect of any one such person and subject to the aforesaid limit in respect of any one person to the sum of rupees as mentioned in the schedule in respect of any number of claims in connection with any one such vehicle arising out of one cause. Subject otherwise to the terms exceptions conditions and limitations of this policy.
24. A reading of the aforesaid clause makes it clear as the policy did not statutorily cover the risk of a non-fare paying passenger who is not an employee of the insured, the insured paid a sum of Rs. 18/- as additional premium to cover the liability arising out of in respect of or bodily injury to any person not being the employee of the insured Whilst being carried in or upon or entering or mounting or alighting from the Motor Vehicle but such indemnity is limited to the sum of Rs. 10,000/- in respect of any number of claim a in connection with anyone such arising out of one cause.
25. Therefore, though the insurance company is not statutorily liable to indemnify the insured in. respect of the claims of such representative of the owner who was travelling in the vehicle with the goods by virtue of this contract the insurance company is liable to indemnify the insured to the extent agreed upon. The total liability fixed in so far as this claimant is concerned at Rs. 97,345/-, out of the said amount the insurance company is liable to pay Rs. 10,000/- with interest and the amount in excess of the same is liable to be paid by the owner of the Matador.
26. In the result I pass the following:
ORDER
The appeals are partly allowed. The awards passed by the Tribunal are modified only to the following extent.
(a) In M.V.C No. 1140/90 out of the total amount awarded as compensation in a sum of Rs. 1,46,450/ - with interest, the liability of the insurance company is only to the extent of Rs. 43,694/- with interest at 6% p.a from the date of petition till the date, of payment. The amount in excess of the said amount is payable exclusively by the owner of the vehicle.
(b) As the claimant Ramachandra is no more and his L.R.s, are already brought on record the compensation is payable to the L.Rs.
(c) It is open to the appellant to file before this Court, calculating the amount as aforesaid due by them to be paid to the respondents and if the amount deposited before this Court is in excess of the said amount, the office is directed to refund the said excess amount and then transmit the amount deposited herein to the Tribunal for being paid to the claimants.
(d) In M.V.C NO. 1442/90 out of the amount of Rs. 97,345/- awarded by the Tribunal, five insurance company is liable to pay Rs. 10,000/- with interest at 6% from the date of petition till the date of payment. The amount in excess of the said amount is payable exclusively by the owner of the vehicle.
(e) In so far as the cross-appeal preferred by Sri. Ramachandra in M.F.A.Cr.Ob.1147/2001 is concerned, it is an appeal filed by the insurance company challenging only the extent of liability. In such an appeal five claimants cannot maintain the cross objection seeking enhancement of compensation. More over the claimant has also died during the pendency of the appeal. Hence, it is dismissed as not maintainable.
(f) Parties to bear their own costs.