J.N. Sarma, J.
1. This is an appeal by the insurance company against the award dated 25.4.1994 passed by the Member, M.A.C.T., Kamrup at Guwahati in MACT Case No. 348 (K) of 1992. The brief facts of the case are as follows:
2. The claimant No. 1 is the wife of late Niranjan Das and the claimant Nos. 2 to 5 are his sons and daughters. The claim was filed for awarding total compensation of Rs. 3,00,000 for the death of her husband who died in motor accident near Rangjuli in Goalpara District on 7.6.1988. The deceased along with his friend was returning in a private Ambassador car No. AXA 4773 belonging to O.P. No. 1 from a village near Rangjuli. The driver due to his rashness and negligent driving dashed the vehicle on the railing of a wooden bridge and Niranjan Das died on the spot. The vehicle was insured by the O.P. No. 3 against third party risk.
3. The insurance company filed a written statement and additional written statement denying the liability of compensation on the ground that there was no comprehensive insurance policy in respect of the vehicle and that the deceased was a gratuitous passenger. The deceased was a fisherman and he used to earn about Rs. 1,000 per month and he was maintaining the family consisting of six members including himself. The deceased was aged about 45 years at the time of death. The learned Tribunal by using the multiplier of 18 assessed the compensation at Rs. 1,50,600. Hence this appeal.
4. I have heard Mr. S. Dutta, learned advocate for the appellant and Mr. J. Sarma, learned advocate for the respondents. The learned advocate for the respondents takes a preliminary objection that this is an appeal with regard to the quantum of compensation and as such in view of the Full Bench judgment of this court in United India Insurance Co. Ltd. v. Member, M.A.C.T., Lakhimpur, 1993 ACJ 828 (Gauhati), the insurance company is not entitled to file this appeal and on this ground alone this appeal should be dismissed. This contention of learned counsel has force but as it is urged by the learned advocate for the appellant that even if this appeal is not maintainable, this appeal should be considered as an application under Article 227 of the Constitution of India inasmuch as there is patent error on the face of the record and there was flagrant violation with regard to the law to be applied. It is the contention of learned advocate for the appellant that this accident occurred in the year 1988 when the Act of 1939 was in force. No damage could have been given with regard to the gratuitous passengers. This aspect of the matter was changed in the Act of 1988 which came into force from 1.7.1989. That is the law that can be gathered from Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531 (SC), wherein the Supreme Court pointed out as follows:
The liability of the insurer in this case depends on the terms of the contract between the insured and the insurer as evident from the policy. Section 94 of the Motor Vehicles Act, 1939 compels the owner of a motor vehicle to insure the vehicle in compliance with the requirements of Chapter VIII of the Act. Section 95 of the Act provides that a policy of insurance must be one which insures the person against any liability which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of third party caused by or arising out of the use of the vehicle in a public place. The section does not however require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injury suffered by the occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. But that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could also be covered. In such cases where the policy is not merely a statutory policy, the terms of the policy have to be considered to determine the liability of the insurer.
In New India Assurance Co. Ltd. v. Satpal Singh, (2000) 1 SCC 237: 2000 ACJ 1 (SC), the Supreme Court pointed out as follows:
Under the Clause (ii) of the proviso to Section 95 (1) of the Motor Vehicles Act, 1939 (for short 'the old Act') the insurance policy was not required to cover liability in respect of the death of or bodily injury to persons who were gratuitous passengers of that vehicle. But the proviso to Section 147(1) of the Motor Vehicles Act, 1988 (for short 'the new Act') shows that it is a recast provision by placing the erstwhile Clause (iii) as the present Clause (ii). In other words, Clause (ii) of the proviso to Section 95 (1) of the old Act is totally nonexistent in the proviso to Section 147(1) of the new Act. Moreover, under Section 147(2) of the new Act there is no upper limit for the insurer regarding the amount of compensation to be awarded in respect of death of or bodily injury to a victim of the accident. It is, therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle.
In Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 (SC), the Supreme Court pointed out in paras 10 and 12 as follows:
(10) For the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers are carried if the vehicle was of that class. Keeping in mind the classification of vehicles by the Act, the requirement of registration with particulars including the class to which it belonged, the requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95 (1)(b), the correct test to determine whether a passenger was carried for hire or reward would be whether there has been a systematic carrying of passengers.
xxx xxx xxx
(12) We will now consider whether the decision of this court in Pushpabai's case, 1977 ACJ 343 (SC), requires reconsideration. That was a case of a passenger travelling in a motor car. He was not travelling for hire or reward. The vehicle was neither a public service vehicle nor a goods vehicle, but it was a different class of vehicle. It was in that context that this court made the following observations in paras 21 and 22:
'The plea that the words 'third party' are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers is made clear by the proviso to Sub-section which provides that a policy shall not be required:
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.
(22) Therefore, it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act.'
What was held in that case is, with respect, consistent with our interpretation of Section 95 as it stood before and after its amendment by Act 56 of 1969.
5. In that view of the matter any policy which is a third party policy, the gratuitous passengers shall not be entitled to any compensation. The learned advocate for the respondents in this connection places reliance on New India Assurance Co. Ltd. v. Satyanath Hazarika, 1989 ACJ 685 (Gauhati), wherein the Full Bench of this court pointed out as follows:.an insurer would be liable to indemnify the insured in respect of compensation awarded against him for the death of or bodily injury to a gratuitous passenger in all those cases which are pending before the Claims Tribunal or appellate authorities since 25.3.1977. In other cases, the insurer would be liable in cases of the present nature if the particular policy covered the risk, and it shall be the burden of the insurer to satisfy by producing the policy that such a risk was not covered by the policy, if that was its case before the Claims Tribunal.
6. That is not the position in the case in hand. In this case the policy was produced and it is the finding of the learned Tribunal that the policy was only for a third party risk policy and it was not a comprehensive policy. So, the award of compensation of the Tribunal for the death of the deceased is liable to be set aside and quashed being a patent error on the face of the record. Further, this application is converted as an application under Article 227 of the Constitution of India.
7. Mr. S. Dutta, learned advocate for the appellant submits that in terms of the order of this court already more than half of the awarded amount has been paid to the claimant. In view of the fact that the claimant is a widow and she has minor sons and daughters, I direct that the insurance company shall not be entitled to recover the amount which has already been paid.
8. Conversion of this application to an application under Article 227 may not be necessary as it is violation of the condition of the policy.