P.S. Narayana, J.
1. The Civil Miscellaneous Appeal is filed by the claimant being aggrieved of the quantum of compensation fixed by the Motor Accidents Claims Tribunal-cumAdditional District Judge, Nizamabad in O.P. No. 346 of 1995 at Rs. 30,000/- with proportionate costs and interest on the ground that the same is unjust and unreasonable.
2. The appellant-claimant filed the abovesaid O.P. on the file of Motor Accidents Claims Tribunal-cum-Additional District Judge, Nizamabad, hereinafter in short referred to as Tribunal for the purpose convenience, claiming compensation of Rs. 1,50,000/- for the injuries and fractures sustained by him in a motor vehicle accident on 20.2.1995.
3. The learned Counsel for the appellant-claimant had taken this Court through the findings, which had been recorded, and would maintain that in the facts and circumstances of the case the quantum of compensation awarded being unjust and unreasonable, the same to be enhanced.
4. On the contrary, the learned Counsel for the 2nd respondent would maintain that as against 1st respondent, the Civil Miscellaneous Appeal had been dismissed for default, and enhancement of compensation, at any rate, cannot be granted as against the United India Insurance Company-2nd respondent in the light of the views expressed by this Court in Chejerla Munichandraiah v. Shaik Noorjahan and Anr. 2008(1) ALD 35 and also by the Apex Court in National Insurance Co. Ltd. v. Cholleti Bharatamma and Ors. SC-2007-1135.
5. Heard the learned Counsel.
6. In view of the facts and circumstances, the following points arise for consideration in this Civil Miscellaneous Appeal:
1. Whether the appellant is entitled to enhanced compensation as prayed for in the facts and circumstances of the case?
2. If so, to what relief the parties would be entitled to?
POINTS 1 and 2:
7. The parties hereinafter would be referred to as petitioner and respondents as shown in O.P. No. 346 of 1995 on the file of the Tribunal.
8. It was averred that on ill-fated day, date of accident, i.e., on 20.2.1995 at about 6 AM, the petitioner along with others were traveling in the lorry bearing No. ADQ.5112 as a labourer of 1st respondent from Hyderabad towards Armoor side. When reached at Argul village shivar on Hyderabad to Nagpur road on N.H.7, District Nizamabad, at the same time, the driver of the lorry drove it in a rash and negligent manner with a high speed and dashed against road side tree, due to which the petitioner received fracture to both legs, both hands injured, head injuries, face was injured, and also received injuries on other parts of the body. It was further stated that immediately after the accident, the petitioner was shifted to Headquarters Hospital, Nizamabad, where he was treated by Duty Medical Officers, and so far he spent Rs. 50,000/- towards the medicines and for extra nourishment. It is also stated that the accident occurred due to rash and negligent driving of lorry No. ADQ.5112 by its driver only. Due to the injuries and fractures, the petitioner got permanent disability and hence he is claiming compensation of Rs. 1,20,000/- from the respondents.
9. Respondent No. 1 remained ex parte. Respondent No. 2-United India Insurance Company filed written statement denying the averments. Further it was averred that the respondent company does not admit the age, avocation and earnings of the petitioner and it also does not admit that the petitioner met with motor vehicle accident on 20.2.1995 at 6 AM and P.S. Jakranpally issued FIR 3/.95 under Sections 337 and 338 IPC. It is also denied that the petitioner and others were traveling in the lorry bearing No. ADQ.5112 as labourers of 1st respondent from Hyderabad towards Armoor and when the lorry reached Argul village shivar, the driver of lorry drove it in a rash and negligent manner and dashed to road side tree. The respondent company also does not admit the injuries and fractures alleged to have been sustained by the petitioner. It also does not admit the vehicle of 1st respondent was insured with their company and even if the vehicle is insured with their company, the liability of 2nd respondent has to be strictly governed by the provisions of M.V. Rules, terms and conditions of relevant insurance policy, and moreover the 1st respondent has not informed the insurance company regarding the alleged accident and that the quantum of compensation as claimed by the petitioner is highly excessive.
10. On the strength of the above pleadings, the following issues were settled:
1. Whether the accident has occurred due to rash and negligent driving of lorry No. ADQ-5112 by its driver only?
2. Whether the petitioner is entitled to any compensation. If so, to what amount and from which of the respondents?
3. To what relief?
11. On behalf of claimant, PWs.1 to 3 were examined and Exs.A1 to A4 were marked. RW.1 also had been examined. The evidence of PW.2 no doubt had been eschewed from consideration. On appreciation of the evidence of PWs.1 and 3, the Tribunal awarded compensation as specified above.
12. In a similar fact situation, this Court in Chejerla Munichandraiah's case (1 supra) observed at paragraphs 21 to 25, as hereunder:
The apex Court in New India Assurance Co. v. Asha Rani 2003 (1) ALD 18 (SC) : 2003 ACJ 1 (SC), held that:
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 authorized 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.It was further held:
The applicability of decision of this Court in Mallawwa (Smt.) and Ors. v. Oriental Insurance Co. Ltd. and Ors. (1999) 1 SCC 403 : 1999(1) ALD (SCSN) 2, in this case must be considered keeping that aspect in view. Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the 'goods vehicle' in 1939 Act and 'goods carriage' in 1988 Act is significant. By reason of the change in the definitions of the terminology, the Legislature intended that a goods vehicle could not carry any passenger, as the words 'in addition to passengers' occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under 1988 Act.The above decision was reiterated by the Apex Court in National Insurance Co. Ltd. v. Bommithi Subbayamma and Ors. 2005(2) ACJ 721 : 2005 AILD 213 (SC), wherein, it was held as follows:
Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of 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 any premium was paid to the extent of the benefit of insurance to such category of people.In New India Assurance Co. Ltd. v. Vedawati and Ors. 2007(1) DT (SC) 389 : 2007 AILD 86 (SC), the Apex Court held:
The provisions of the Act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger traveling in goods carriage and the insurer would have no liability therefor.In view of the principles laid down by the apex Court in the above decisions and in the light of the evidence on record clearly establishing that the claimant was traveling in the lorry only as unauthorized passenger with his personal luggage, which does not answer the description of 'goods', within the meaning of M.V. Act, and the policy Ex.B1 not covering the risk of any such unauthorized passenger, it must be held that no liability can be fastened on the second respondent-insurance company for the enhanced amount of compensation. As the second respondent has not preferred any appeal against the award, the liability imposed on the second respondent to the extent of Rs. 25,000/- by the Tribunal is left undisturbed.
In the circumstances and for the reasons stated above, the claimant is held entitled for a total compensation of Rs. 1,00,000/- claimed by him with interest at 12% per annum on the original amount awarded by the Tribunal and at 9% per annum on the enhanced amount from the date of filing of the appeal. The second respondent-insurer is held not liable to pay the enhanced amount of compensation and the claimant is at liberty to recover the same from the first respondentowner of the vehicle. The award dated 6.11.2000 passed by the Tribunal in O.P. No. 649 of 1996 is modified accordingly.
13. The counsel for the appellant also relied upon the Apex Court decision in National Insurance Co. Ltd. (2 supra), wherein the Apex Court held at paragraphs 6 to 14, as hereunder:
In Satpal Singh (supra) interpreting the provisions contain ed in Sections 147 and 149 of the Motor Vehicles Act, this Court held:
Hence, under Section 149(2), there is no upper limitation for the insurer regarding the amount of compensation awarded in respect of death or bodily injury of 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 authorized representative carried in the vehicle. The legislature has also taken care of even the policies which were in force on the date of commencement of the Act by specifically providing that any policy of insurance containing any limit regarding the insurer's liability shall continue to be effective for a period of four months from commencement of the Act or till the date of expiry of such policy, whichever is earlier. This means, after the said period of four months, a new insurance policy consistent with the new Act is required to be obtained.The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis--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 Ramesh Kumar v. National Insurance Co. Ltd. and Anr. , this Court categorized the cases arise out of the Motor Vehicles Act, 1939, stating:
The first category of cases arise out of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the old Act'). The question raised for this category is:
Whether the insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passengers including the owner of the goods or his representative, traveling in a goods vehicle under Section 95 of the said Act? The second category of cases arise out of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the new Act') prior to its amendment in 1994. In this category also a similar question is raised. The third category of cases also arises under the new Act but after its amendment by Act 54 of 1994. In this category also the same question is raised.The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative.
Correctness of the decision in Satpal Singh (supra) came up for consideration before a three Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani and Ors. (2003) 2 SCC 223.
In Asha Rani (supra), having regard to various definitions involving the legal question, it was held:
The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd. In this case must be considered keeping that aspect in view. Section 2(35) of the 1988 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of 'goods vehicle' in the 1939 Act and 'goods carriage' in the 1988 Act is significant. By reason of the change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words 'in addition to passengers' occurring in the definition of goods vehicle in the 1939 Act were omitted.Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under the 1988 Act.
We have further noticed that Section 147 of the 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 the 1939 Act. The decision of this Court in Mallawwa case must be held to have been rendered having regard to the aforementioned provisions.
Section 147 of the 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 that 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 passenger in a 'goods carriage'.
In view of the changes in the relevant provisions in the 1988 Act vis-- vis the 1939 Act, we are of the opinion that the meaning of the words 'any 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 the 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 passenger traveling in a goods vehicle, the insurers would not be liable therefore.
Furthermore, Sub-clause (i) of Clause (b) of Sub-Section (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 the vehicle in a public place, whereas Sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle 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.
An owner of a passenger-carrying vehicle must pay premium 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 this Court's decision in New India Assurance Co. v. Satpal Singh 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 wherefor even no premium is required to be paid.
The effect of 1994 amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur and Ors. , wherein this Court following Asha Rani (supra) opined that the words 'injury to any person' would only mean a third party and not a passenger traveling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. wherein upon taking into consideration a large number of decisio0ns, the said view was reiterated.
Yet again in New India Assurance Co. Ltd. v. Vedwati and Ors. this Court held:
The difference in the language of 'goods vehicle' as appear in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' 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'. This 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'.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 traveling in a goods carriage and the insurer would have no liability therefor.
(See also Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. 2007(7) Scale 753).
14. It is not in serious controversy that in the light of the aforesaid legal position, the enhancement prayed for as against the 2nd respondent-insurance company cannot be granted. It may be true that the appellant-claimant may be entitled for some enhancement as against the owner, 1st respondent, but as against the owner-1st respondent, the appeal had been dismissed for default. Hence, no relief granted in the present Civil Miscellaneous Appeal.
15. Accordingly, the Civil Miscellaneous Appeal is hereby dismissed. There shall be no order as to costs.