Judgment:
R.P. Sethi, C.J.
1. In these Civil Revision Petitions and Miscellaneous First Appeals filed on behalf of the Oriental Insurance Company Limited, a prayer has been made to set aside the award in so far as it pertains to the insurance company, mainly on the ground of a Full Bench judgment of this Court in NATIONAL INSURANCE CO. LTD., v. DUNDAMMA, : ILR1991KAR2045 read with Rule 161 of the Karnataka Motor Vehicles Rules, 1963.
2. The admitted facts of the case are that the lorry involved in an accident, which resulted in the death of Gangu Bai and Laxmi Bai, on whose behalf claim petition Nos. MVC 69/87 and 87/87 were filed, and injury to 22 passengers, was not a vehicle meant for the purposes of carrying passengers, but was a goods vehicle. The Motor Vehicles Accidents Tribunal, vide the order impugned in these CRPs and MFAs, found that as the passengers in the goods vehicle were carrying firewood, for which they had paid fare and luggage charges, were entitled to be paid compensation for the deaths caused and injuries suffered on account of the accident. It was further held that besides the owner and driver, the petitioner, appellant-Insurance Company was vicariously liable. Various amounts were awarded to the claimants for the injuries suffered and the deaths caused.
3. The Full Bench of this Court, in National Insurance Company's case supra, considered the question of liability of the insurance company and found that the statutory liability of the insurance company is to depend on the statutory provisions and not on what a driver or owner had done, i.e., collecting hire or fare or not collecting such hire or fare. After referring to various judgments, it was concluded:
'Under motor vehicle insurance policy issued by an Insurance Company in conformity with Section 95 of the Motor Vehicles Act, 1939, the Insurance Company is not liable; by the force of Clause '(ii) of the Proviso to Section 95(1)(b) of the Act; 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 passengers 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 be carried in the goods vehicle under Rule 161 of the Karnataka Motor Vehicles Rules, 1963.'
Rule 161 of the Rules prescribes:
'Carriage of persons in goods vehicles; Subject to the provisions of this rule, no person shall be carried in a goods vehicle;
Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle may be carried in a goods vehicle, the total number of persons be carried in a light transport goods vehicle not being more than three and in any other goods vehicle not being more than seven including the driver.'
4. It is not disputed that the vehicle involved in the accident was a goods vehicle and also not a light vehicle. If follows, therefore, that the vehicle was eligible to carry six persons along with the goods and the driver. In view of this legal position, the insurance company cannot be held liable to pay compensation for more than six passengers travelling in the goods vehicle, which met with an accident, resulting in the death of two and injuries to 22 other passengers.
5. The learned counsel appearing for the insurance company has been fair, to concede that the petitioner/appellant may be burdened with the liability to make the payment of the maximum amount of compensation awarded to various claimants in MFAs filed by them.
6. A perusal of the whole record shows that in MFA Nos. 1349/ 1990 and 1460/1990, the claimants were held entitled to the payment of Rs. 31,000/- as compensation for the death of two young girls. Similarly, in MFA Nos. 1457/1990, 1461/1990 & 1467/1990, the claimants were held entitled to the grant of compensation to the extent of Rs. 19,000/-, on account of the injuries sustained by them. In MFA 1468/1990, the claimant was held entitled to the grant of Rs. 18,600/- on account of the injuries sustained by him.
7. The award of the Motor Vehicles Claims Tribunal, Bellary, in so far as the awardees in MFA Nos. 1349/90, 1460/90, 1457/90, 1461/90, 1467/90 & 1468/90 are concerned, is upheld, holding the appellant/petitioner - insurance company liable to pay the compensation in terms of the award passed against it.
8. In so far as the other CRPs & MFAs are concerned, only the driver and the owner are held jointly and severally liable to pay compensation to the claimants to the extent of the amounts awarded to them, as compensation by the Tribunal. The driver and the owner cannot escape their liability to make the compensation or the plea that as the vehicle was a goods vehicle, they could not be held liable for making the compensation. No such defence is available either to the driver or to the owner in view of the Full Bench judgment referred to hereinabove and various other pronouncements made by the High Courts in the country. The plea of the learned counsel appearing for them that the amount awarded against them in excessive, is without any substance. The Tribunal has already been very cautions in awarding lesser amounts to the claimants, despite the fact that the passengers had sustained various injuries, as noted in the award, the subject-matter of the present proceedings.
9. For the reasons stated hereinabove, MFA Nos. 1349/1990, 1457/1990, 1460/1990, 1461/1990, 1467/1990 and 1468/1990 are dismissed and the award passed by the Tribunal is upheld. All other Civil Revision Petitions and Miscellaneous First Appeals are allowed in so far as the award pertains to the insurance company. The amount awarded in such cases shall be payable by the owner and the driver as per directions contained in the impugned award.