Judgment:
R.G. Vaidyanatha
1. This is an appeal filed by the Insurance Company against the judgment dated 12th October, 1988 in M.A.C. Petition No. 13/86 on the file of District Judge & Ex-officio Member M.A.C.T., Solapur. Heard both sides.
The Respondents Nos. 3 to 5, the original claimants, filed petition in the court below against the appellant and Respondents Nos. 1 and 2 for compensation under Section 110A of the Motor Vehicles Act. The Claimants are the widow and children of deceased Shri Jangam. It is their case that the deceased was travelling in Truck No. MHD/5520 on 20th July, 1985. The truck was being driven by the first Respondent and it was owned by the second Respondent. It is alleged that due to rash and negligent driving of the Truck by the First Respondent, the truck met with an accident in a road between Akkalkot and Akkalkot railway station. As a result of accident, Shri Jangam sustained injuries and died. Hence, the claimant filed a Claim Petition in the Court below.
2. The Respondent No. 1 admitted the accident and death of Shri Jangam as a result of an accident. But he has denied that he has driven truck in rash and negligent manner and pleaded that the deceased had boarded the truck of his own and he was not allowed to be carried in the truck by the driver. The owner filed separate written statement disputing his liability for the claim.
The appellant who was Respondent No. 3 in the Court below filed separate written statement stating that it is not liable for the compensation claimed in the petition. Clear plea is taken that a risk of a passenger in goods vehicle is not covered by the insurance policy.
3. The learned Trial Court framed the following issues.
(1) Do petitioners prove that on 20th July, 1985, Opponent No. 1 was driving Truck No. MHD-5520 rashly and/or negligently and under the influence of liquor?
(2) Do they prove that the said vehicle met with the accident by falling in a ditch and on its one side?
(3) Do opponents Nos. 1 and 2 prove that the deceased was travelling in the truck without their express permission?
(4) Does Opponent No. 3 prove that there was breach of terms and conditions of the Insurance Policy as the deceased was travelling as a passenger in the said truck?
(5) Do petitioners prove the age and income of the deceased?
(6) Whether the Petitioners are entitled to the compensation? If yes, what amount?
(7) What order, costs and interest?
4. After recording evidence, the trial court held that Shri Jangam died as a result of the accident and that the accident was due to rash and negligent driving on the part of driver of the truck. A finding was recorded that the deceased was travelling in the lorry with the permission of the driver. The learned Trial Court held that all the three respondents in the Court below are liable for the amount. The learned Trial Court fixed the quantum of compensation at Rs. 20,000/-. Hence claim petition came to be allowed against the appellant and the respondents Nos. 1 & 2 in a sum of Rs. 20,000/- with interest.
5. Being aggrieved by the judgment and order the Courts below, the original third Respondent namely the Oriental Insurance Co. Ltd. has come up in appeal.
6. Mrs. Anita Agarwal, the learned Counsel for the appellant, has questioned the correctness and legality of the impugned judgment. It was argued that the appellant - insurance company is not liable for the claim, since, the deceased was travelling as a passenger in a goods vehicle, which is forbidden by law. It was pointed out that the insurance policy also does not cover a risk of passenger in a goods vehicle.
On the other hand, the learned Counsel appearing for the owner i.e. Respondent No. 2 contended that the owner is not liable since, he had given specific instructions to the driver not to carry any passenger. in the lorry. But the learned Counsel for the claimants respondents Nos. 3 to 5 supported the impugned judgment.
7. In the light of the arguments addressed before me, the only point for consideration is whether the appellant/insurance company is liable for the suit claim or not?
8. Before considering the claim of the appellant, I must dispose of the objection taken by the learned Counsel for the second respondent for the decree against him on the ground that the owner had given instructions to the driver not to carry any passenger. The decree is joint and several against the appellant and the Respondents Nos. 1 & 2. The second respondent has not filed any appeal against the impugned judgment, therefore, as far as the second respondent is concerned, the judgment has become final and it cannot be challenged in the appeal filed by the insurance company. Even otherwise, there is no evidence on record to show that the second respondent had given any such instruction to his driver. The second respondent did not enter the witness box to give any such evidence. Further in written statement of the Respondent No, 3 I do not find any such specific plea taken that the owner had given instructions to the driver not to carry any passenger. Therefore, there is neither plea nor evidence in support of this contention and further, the decree against the defendants Nos. 1 & 2 has become final and cannot be questioned at this stage.
9. Now coming to the case of the appellant, it is an admitted case that the vehicle in question was a goods vehicle. The evidence is that there was rain on that day and the deceased and some others got a lift in the lorry to go to Akkalkot. Whether the deceased was a gratuitous passenger or a fare paying passenger is immaterial, as far as, the liability of the Insurance Company is concerned. The fact that he was travelling in the lorry on that day is not disputed, though the driver would say that in spite of his prohibition the deceased had boarded the vehicle, which he noticed after the accident. When he had permitted other persons to travel in the lorry his assertion that he asked the deceased not to board the lorry cannot be accepted. No third person would board a lorry without the permission of the driver.
10. It is well settled and there cannot be any dispute that the passenger in a vehicle is not a third party. The matter is no longer reintegrate and is covered by the direct authority of the Apex Court in Pushapabai's case reported in 1977 A.C.J. 343. In that case, the deceased was a passenger in a car. The Supreme Court held that the passenger in the car is not a third party and therefore, the Insurance Company is not liable under the statute. But, however, in that particular case, the Insurance Company had taken liability for passenger only to the extent of Rs. 15,000/- by collecting additional premium. In view of that, the claim petition against the Insurance Company was allowed only to the extent of Rs. 15,000/-.
Now as far as, goods vehicles are concerned, we have number of decisions of our High Court taking the view that the passenger in the goods vehicles is not covered by the Insurance policy and therefore, the insurance company is not liable for compensation. The Division Bench of this Court in Maimuna Begum and Ors. Taju and Ors. 1988 ACJ 417 : 1989 ML.J. 1025 : 1989 (1) BC.R. 673 has held that the Insurance is. not liable to pay compensation in the case of death of a passenger in goods vehicle.
Then the matter is also covered by Full Bench decision of this Court reported at Oriental Fire & Gent Ins. Co. Ltd. v. Hirabai Vithal Nikam and Ors. : (1988)90BOMLR103 . Here, the Full Bench held that in cases of passenger carrying in goods vehicles for hire or reward, then Insurance Company is not liable for the death or injury to such passengers.
The learned Counsel for the Appellant also brought to my notice an unreported judgment of the learned Single Judge of this Court dated 11.1.1989, in First Appeal No. 1073/84 Oriental Insurance Co. v. Tukaram Appa Mali and Ors.; Here it has been held that where the passenger is a gratuitous passenger or fare paying passenger in a goods vehicle the insurance company is not liable for the death or injury to such passenger.
11. The learned Counsel for the Respondents was not able to point out any authority taking contrary view on this point.
For the above reasons, I hold that the Insurance Company is not responsible to pay compensation to the deceased Jangam, who was a passenger in goods vehicle, which is not covered by the insurance policy.
12. It may be mentioned here that by an order dated 2.4.1988, under Section 92(A) of the M.V. Act, the learned Tribunal had granted interim compensation on no fault liability of Rs. 15,000/-. No appeal was filed by the appellant against that order. That order has become final. The appellants/respondents. Nos. 3 to 5 herein are poor people being widow and children of the deceased, who was working as a labourer. I, therefore, feel that notwithstanding the legal position stated above, the claimants should not be burdened with this liability of repairing the furniture. The Respondents Nos. 1 & 2 will have to pay the balance of Rs. 5,000/- together with interest as directed in the impugned order.
13. In the result, the appeal is partly allowed. It is held that the appellant/Insurance Company is not liable for the claim in question, which arises out of the deceased travelling in the goods vehicle as a passenger. However, there is no order for refund of the amount of Rs. 15,000/-deposited by the appellant in the court below under Section 92(A) of the Motor Vehicles Act. The Respondents Nos. 1 & 2 are liable to pay the balance of Rs. 5000/- together with interest as directed in the impugned order. In the circumstances of the case, there will be no order as to costs in this appeal.