B.K. Somasekhara, J.
1. These appeals arise out of the awards of the Motor Accidents Claims Tribunal, Ongole, in O.P. Nos. 154, 155, 167 and 153 of 1988 in regard to a motor vehicle accident that occurred on 17.3.1988. All are death claim cases filed under Section 110-A of the Motor Vehicles Act, 1939 (for short, 'the Act'). The claimants are the legal heirs of the deceased persons respectively, viz., Pedda Pothanna, Katte Ankulu, B. Lakshmaiah and Pedda Petanna. The lorry bearing No. ABG 4129 was involved in the accident. The lorry belonged to the respondent No. 1 and was insured with the respondent No. 2 under a policy of insurance, the certified copy of which is Exh. B1. Exh. B2 is the copy of the permit in regard to the vehicle involved in the accident. The Tribunal held that the accident was due to the rash and negligent driving of the lorry by its driver and that the respondent No. 1 was liable to pay the compensation and at the same time held that the respondent No. 2 being the insurer is also liable to indemnify the respondent No. 1 in paying the compensation. The Tribunal fixed joint and several liability on the part of the respondents. Aggrieved by that the respondent No. 2 insurer has filed these appeals.
2. The respondent No. 2 insurer in all the appeals raised the contention that as the terms of the policy and the permit were breached it had no liability to pay the compensation. Mr. Hanumaiah, the learned standing counsel for the appellant insurer in these cases, has contended that the defence of the insurer in these cases is not merely the breach of the terms of the policy but basically one of questioning the coverage of insurance in regard to the persons who died in the accident or the persons who were the victims of the accident. According to him Exh. B1 categorically excludes such a risk under the policy in regard to such persons travelling in the lorry at the relevant time. He has also pointed out that when the number of persons who could travel in the lorry was restricted as per the permit Exh. B2, the driver of the lorry carried number of persons over and above the said number leading to the accident. The learned standing counsel has also contended that the Tribunal instead of relying upon several precedents including one of our own High Court has come to a wrong conclusion in applying the principles of law to the admitted and proved facts in this case.
3. Mr. Venkateswara Reddy, learned Counsel for the respondent No. 1 owner in all the claim petitions, has contended that the question in these cases is not one of the coverage of the insurance policy nor the breach of the terms of the policy, but one of the statutory liability on the part of the insurer to indemnify the respondent No. 1 owner of the vehicle when once it has been established that the vehicle had been insured with the particular insurer which has been established through the copy of the policy Exh. B1 and the settled law that it is for the insurer to establish that there has been a breach of the terms of the policy by the insured owner of the vehicle in regard to the vehicle, but not the driver as it has happened in this case, even assuming that the driver outstepped the implied or express authority in carrying the persons in the lorry and according to him as per settled law the insurer in these cases could not have avoided the liability to indemnify the owner to pay the compensation.
4. Mr. Krishnamurthy, learned Counsel for the claimants in the claim petitions, who are the other respondents in these appeals, has in effect adopted the arguments of Mr. Venkateswara Reddy, inasmuch as tried to improve it by contending that judging the matter from any angle, the interpretation of the contents of the policy cannot be done technically much less so as to exclude the basic liability of the insurer to indemnify the owner in paying the compensation when once it is established that the accident occurred in the course of the employment regarding which the owner has no control after the entrustment of the vehicle and secondly that there has been an implied coverage of the risk for the third parties as per settled law and further-more even assuming that the insurer may be allowed to avoid the fault liability, it cannot be allowed to escape the no fault liability under Section 92-A of the Act. All the three learned advocates in these cases have put all their efforts in placing their respective contentions supported by so many precedents which they have tried to make use of to the best of their ability to convince this Court about their respective contentions. Their assistance to deal with the matter commends all the appreciation. However, with such controversies, these points arise for consideration in these appeals:
(1) Whether the policy Exh. B 1 covered the risk of the deceased person in each of the cases?
(2) Whether there is breach of the terms of the policy and the permit by the owner of the vehicle?
(3) Whether the owner, respondent No. 1 in the claim petitions, is vicariously liable for the negligent act of the driver in regard to the accident?
(4) Whether the respondent No. 2 insurer in the claim petitions is liable to indemnify the respondent No. 1 owner of the vehicle in paying the compensation to the claimants?
(5) Whether the award against the respondent No. 2 insurer is illegal, unenforceable and deserves to be set aside?
5. Although it was pleaded that the deceased persons travelled in the lorry along with their goods, such a factor is not found from the evidence and on the other hand not only it was categorically admitted in all the claim petitions that the deceased persons were travelling in the lorry as fare paying passengers, but also PW 2 categorically stated on oath that the deceased were travelling in the lorry by paying fare to the driver. In other words, the finding that the deceased were travelling in the lorry as fare paying passengers has become conclusively unassailable. The deceased having met their destiny while travelling in the lorry as fare paying passengers is the question which determines the liability or not of the insurer appellant. The Tribunal has dealt with the matter in the judgment and while referring to the precedents Ambaben v. Usmanbhai Amirmiya Sheikh 1979 ACJ 292 (Gujarat); C. Narayanan v. Madras State Palm Gur Sammelan 1974 ACJ 479 (Madras); Dashrathlal Jesinghbhai Brahmbhatt v. Bai Ganga 1985 ACJ 410 (Gujarat); Bhoi Vanaji Dhulaji v. Patel Shivabhai Kashibhai 1981 ACJ 107 (Gujarat); New India Assurance Co. Ltd. v. Shaik Jaffer 1982 ACJ 344 (AP); National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat) and 1989 (1) LS 48 finding that all such precedents except the last one took the view that the insurer is not liable where fare paying passengers are carried in a goods vehicle, by following the last of the precedents held that the insurer-appellant is liable in all the cases to indemnify the owner in paying the compensation. It is such a view which is being assailed by Mr. Hanumaiah, the learned Counsel for the insurer, which according to him has been settled in law, conflicting with the view of the Tribunal. Obviously, Mr. Venkateswara Reddy and Mr. Krishnamurthy, learned advocates for the owner and the claimants, have argued that the law settled is other way about and not as propounded by Mr. Hanumaiah.
6. In these cases, the insurer has tried to discharge the burden of no liability on its part by producing Exh. B1, a copy of the insurance policy and also Exh. B2, a copy of the permit in regard to the vehicle and also by examining RW 1, an officer of the insurer. In other words, we are having the contract of insurance between the parties before us. Fundamentally, it should be noted that the right of the claimants to recover the compensation from the insurer in a motor vehicle claim case arises out of the provisions of Sections 95 and 96 of the Act and other relevant provisions of the Act by virtue of the legal fiction established through the law of Indemnity and law of Torts of vicarious liability on the part of the owner who has been indemnified by the insurer under the law of Indemnity and not by virtue of vinculum juris or the legal bond between the claimants and the insurer. In other words, it is insurance or the contract of insurance the stipulation of which determines such a right on the part of the claimants and the liability on the part of the insurer. This legal proposition is not only not res integra but also unassailable nor it has been successfully assailed in these cases. Section 110-A of the Act which deals with an application for compensation does not think of an insurer to be a party to the claim proceedings. Section 110-B of the Act which enjoins the duty on the Tribunal to pass an award which it thinks just to satisfy the person or persons to whom compensation shall be paid by the insured or the owner or the driver of the vehicle involved in the accident or by all or any of them, as the case may be. This provision also excludes the insurer. Therefore, it is only at the stage of passing the award, the Tribunal thinks of the liability of the insurer. Under Section 110-C(2-A) the insurer gets a right to be impleaded as a party where there is collusion between the person making the claim and the person against whom the claim is made and such a thing should come out only when the Tribunal comes to the conclusion that there is a collusion between the person making the claim and the person against whom the claim is made (i.e., the claimant and the owner of the vehicle) and the Tribunal can direct the insurer to be impleaded as a party in such a situation for the reasons to be recorded in writing. If we read Section 110-C(2-A), it is patently clear that unless such a contingency occurs, the insurer will not be in the picture at all. Normally speaking, whenever a party is before the Court or Tribunal in any proceedings and if a liability is fastened on such a party including the insurer, there may not be any need for the law-makers to say that such a party is liable to satisfy the decree or the award as the law is settled that an authority which has jurisdiction to do something has all the incidental powers to compel the task which includes enforcement of such an order. Otherwise, it amounts to academic decision becoming unenforceable or a dead letter. But the law makers by incorporating Sections 95 and 96 of the Act in the statute book have provided for the limit of liability of the insurer, the obligation of the insurer to satisfy such awards whether impleaded as a party or not, however, subject to notice under Section 96(1) of the Act or by getting itself impleaded after a notice is issued under Sub-section (2) of Section 96 of the Act. Section 96(6) mandatorily imposes that no insurer to whom a notice is given as per Sub-section (2) or Sub-section (2-A) of Section 96 shall be entitled to avoid the liability to any person entitled to the benefit of such judgment as is referred to in Sub-section (1) otherwise than in the manner provided for in Sub-section (2) or the corresponding law of the reciprocating country as the case may be. That takes us back to Section 95(2) about the limits of liability and the defences available to an insurer under Sections 96(2)(a) to (c) of the Act. A perambulation into these provisions has been to stress on the legal position in the law of motor vehicle accidents under the Act that insurer as such could be neither a necessary party in such proceedings nor would become liable pro tanto, thereby meaning that unless there is a contract of insurance between the owner of the vehicle and the insurer, there cannot be any initial liability on the part of the insurer. Such a proposition has further support from Sections 95(4) and (4-A) of the Act which contemplates as to how a contract of insurance between the owner of the vehicle and the insurer becomes effective, viz., the policy, shall have no effect for the purpose of the Chapter unless and until that is issued by the insurer in favour of the person by whom the policy is effected, a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters and different forms, particulars and matters may be prescribed in different cases. Sub-clause (4) is contemplative of a conclusion of the contract of policy between the parties if the conditions contemplated therein are not satisfied by the insured within the stipulated time. To conclude on the question, it must be emphasised that unless there is a contract of insurance between the owner of the vehicle and the insurer containing the stipulations, there is neither statutory liability nor contractual liability on the part of the insurer. The Supreme Court has also considered the above question while dealing with a particular situation in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC), which is followed in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC). In Pushpabai's case (supra), the Court was dealing with the effect of Sections 95(1)(a) and (b) (i) of the Act and also the question of liability of the insurer regarding the risk of the passengers and dealt with the stipulations in the policy to examine the liability on the part of the insurer. Therein, the question of the risk for such passengers whether it was compulsory or not was also considered. Similarly, in Jugal Kishore's case (supra), the question of limit of liability under Section 95(2)(b) of the Act was being considered and on facts it was found that the insurer in that case was not seeking to avoid the liability but wanted determination of extent of liability which has to be determined in the absence of any contract but according to the statutory provisions contained in Section 95(2)(b) of the Act. It was found that the owner of the vehicle in that case has not undertaken the payment in excess of the statutory liability awarded which was found to have been not in excess of the statutory liability. Obviously, these precedents of the Supreme Court are taken aid of only to point out that the liability of the insurer is subject to the stipulations in the insurance policy, being the contract of insurance and subject to Sections 95 and 96 and Section 110-C(2-A) of the Act and nothing beyond that. Therefore, Mr. Hanumaiah, the learned Counsel for the insurer, is right in contending that in order to know whether the insurer is liable or not in a particular case, the Tribunal or the Court has to look into the stipulations in the policy and the statutory provisions contained in the Act as above. The analogy flowing from such a sound legal postulation has been expressed in various ways in precedents including New India Assurance Co. Ltd. v. Hurmat Begum ; United India Insurance Co. Ltd. v. Murugan : ILR1993KAR403 ; Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP). A legal expression based on such legal postulations that the best to show the extent of liability of the insurance company is the insurance policy itself is well founded. However, it may be hastened to add that the burden of proving want of liability is on the insurance company when such a defence is set up on any of the defences available in law or on facts by producing a copy of the insurance policy or other relevant documents as has been emphasised by the Supreme Court in Jugal Kishore's case (supra). Mr. Hanumaiah, the learned Counsel, is also not thinking of ignoring the latest pronouncement of the Supreme Court in Sohan Lal Passi v. P. Sesh Reddy : AIR1996SC2627 , that as long as there is liability established both under law and on facts on the part of the insurer, it cannot be avoided on technical grounds or on mala fides without reference to the stipulations in the insurance policy and the facts of the case and the proof given by the insurer. With the Passi's case (supra) of the Supreme Court and Section 96(2) of the Act, it may be concluded that when once there is an award of the Tribunal, the status of the insurer would be that of a judgment-debtor suffering a decree and cannot be avoided except in accordance with the statutory stipulations mentioned in Sections 95 and 96(1) and (2)(a) to (c) of the Act. Then, it becomes a question in each case whether the insurer has set up a particular defence and has proved it in accordance with law to avoid the liability. Now we have to judge the facts and circumstances of this case to know whether the insurer can avoid the liability in these cases.
7. As has been rightly pointed out by Mr. Venkateswara Reddy, the learned Counsel for the owner of the vehicle, that all the pages of Exh. B1, if available, were not before the Tribunal. At no stage the production of any other paper connected with Exh. B 1 was insisted or sought to be produced before the Tribunal by any of the parties. Mr. Venkateswara Reddy and Mr. Krishnamurthy, the learned Counsel for the owner of the vehicle and the claimants did their best to interpret Exh. B1 to demonstrate that it is a comprehensive policy and there is no prohibition for the driver of the lorry to carry fare paying passengers or non fare paying passengers in the lorry. They have also depended upon RW 1, an officer of the insurer, to call Exh. B 1 as a comprehensive policy in addition to the finding of the Tribunal that it is a comprehensive policy. It is true that RW 1, an officer of the insurer/appellant, has out-spelled the contents of Exh. B 1 in saying that it is a comprehensive policy and that there is no prohibition to carry passengers in the vehicle. The Tribunal has been led into the trap by such an expression without examining the contents of Exh. B 1. Both the facts as above are beyond the contents of Exh. B 1. Part-A in the policy mentions the premium collected for any damage to the vehicle including the terrorist coverage and Part-B mentions the liability to public risk and adding A+B, the comprehensive premium is said to be Rs. 6,290/- and deducting 5 per cent, the total premium is fixed at Rs. 5,976/-. The expression comprehensive premium of A+B is misread as comprehensive policy. The meaning of comprehensive policy has been explained in Jugal Kishore's case 1988 ACJ 270 (SC), not to mean that it covers everything on this earth including the limit of liability, but it should be within the stipulations of the policy itself. Section 3 of the Insurance Act, 1938, concerns with the kinds of insurance business which will be marine, aviation, transport, personal accident insurance, property insurance, motor vehicle insurance, pecuniary loss, war risk, natural risk, etc. The classification of risk is also to be borrowed from the said provision. It is unaxiomatic to think that every policy of insurance can be called as comprehensive policy to cover all the risks which are any number of varied depending upon the nature of the risk involved or the nature of the risk covered under the policy. That is how the premiums are collected for different kinds of risks as has been done in the present case. It is so categorically shown therein that Rs. 10,000/- is the limit of liability fixed relating to non fare paying passengers collecting Rs. 18/- as premium, Rs. 50,000/- limit for one passenger in regard to any accident by collecting Rs. 36 as the premium and other premiums in regard to the driver, cleaner and five coolies. The contents are so clear that the risk covered under the policy is for non fare paying passengers up to Rs. 10,000/- (for each person as per settled law), in regard to Section 2(1), unlimited and in regard to Section 2(2) Rs. 5,00,000/- which covers the risk for driver, cleaner and five coolies. Possibly the coverage of non fare paying passengers should be meant to include the person accompanying the goods or any person travelling in the lorry for the purpose of the business for which the lorry is engaged or employed. Such an inference has to be made from the specific stipulation in the schedule of premiums stated above. This can be strengthened from the stipulation at the top, viz., limitations as to use, i.e., use only as a public carrier within the meaning of the Act. The policy does not cover (1) use for organised racing, pace making, reliability trial or speed testing, (2) use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle, and (3) use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of the Workmen's Compensation Act, 1923. There is a clear prohibition to carry passengers except as per the contract stipulated to carry non fare paying passengers, as the law is that the contract of insurance can be over and above or beyond the statutory limitations. With all this, if either RW 1 the officer of the insurer or the Tribunal said that it is a comprehensive policy covering all types of risks including the third parties and the fare paying passengers, the inference is that either they are not serious in interpreting the document or that they lacked the proper understanding of the contents of the document. Particularly RW 1 being the officer of the insurer having said so, he must be open to all consequences in law provided the insurance company takes any action in accordance with law. Even in regard to the prohibition to take passengers or fare paying passengers under the stipulation, though the Tribunal and RW 1 have said so, this Court in its appellate powers cannot shut its eyes to the realities to perpetrate such illegalities committed by such persons through such expressions. It must be impressed from the fundamental principles of evidence, if not Evidence Act, that the document speaks for itself and no oral evidence can be adduced in regard to the contents of a document in view of Section 59 of the Evidence Act inasmuch as Sections 91 and 92 of the Evidence Act also. Therefore, if RW 1 said something beyond the contents of Exh. B 1 and the Tribunal accepted it, the law will not tolerate it and such expressions should be eschewed. Therefore, on facts and from the stipulations in Exh. B 1, it is apparent that the risks of the fare paying passengers and the third parties are not covered under the policy and also there is a clear prohibition to carry passengers in the lorry in the normal sense. If that is the test to be adopted, fundamentally the insurer in these cases was not liable to pay the compensation. Exh. B 2, the copy of the premium in regard to the vehicle in question in Clause 10, categorically fixes the number of persons as six in all in addition to the driver to be carried in the vehicle except with the permission of the transport authority. That is also an added circumstance showing that the driver or the owner would not have permitted any person more than that number to be carried in the lorry.
8. Now we are to consider the precedents which are depended upon by the learned advocates in support of their respective cases. New India Assurance Co. Ltd. v. Posini Ramulamma 1997 ACJ 664 (AP), depended upon do not apply to the facts and circumstances of this case as it was a case dealing with traders in vegetables accompanying them in the vehicle which met with an accident. National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat), dealt with the question as to what the insurer should prove when it sets up the defence of 'no liability' in a case where persons are carried in a goods vehicle for hire wherein it was held as follows:.The insurer, if he wants to disclaim the liability to satisfy the decree that may be passed in favour of the claimant in such an action, will have to establish:
(1) that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to ply for hire or reward, i.e., by a permit to carry any passenger for hire or reward,
(2) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of passengers for hire or reward, and
(3) that the vehicle was, in fact, used in the breach of such specified condition on the occasion giving rise to the claim.
If all these facts are established by the insurer, by virtue of Section 96(2)(b)(i)(a), he may succeed in avoiding the liability to satisfy the decree that may come to be passed in the action.
This precedent instead of supporting the owner and claimants, supports the insurer appellant. Madras Motor & Genl. Ins. Co. v. Nanjamma 1977 ACJ 241 (Karnataka), was a matter dealing with overloading in a bus and even following the above decisions, it was held in the negative. On facts, this decision cannot be utilised for the present case. In a passenger bus, the purpose is to carry passengers where more than the number the purpose is important. As long as the purpose is fulfilled, breach of carrying more than the number permitted will not absolve the insurer from paying the compensation as long as the accident occurs in the course of the employment as has been settled in law. Ragunath Eknath Hivale v. Shardabai Karbhari Kale 1986 ACJ 460 (Bombay) and United India Insurance Co. Ltd. v. Shekamma : AIR1994AP338 , concern with the question about carrying more persons in the vehicle than permitted. Such an act of the driver or the owner of the vehicle is held not violation of the conditions of the policy as it would be a technical violation as has been spelt out by the Supreme Court in Passi's case : AIR1996SC2627 .
9. Then coming to the question whether carrying passengers in a goods vehicle not covered by the insurance policy, whether to the limit or beyond, would mulct the liability on the insurer, the law appears to be more than settled. The Tribunal itself referred to umpteen number of precedents detailed above except one short note precedent of this Court which was made a basis to hold to the contrary. The precedents of this Court covering such a question apart from the Law Summary are: Kannekanti Varamma v. Puli Ramakotaiah and Oriental Fire & Genl. Ins. Co. Ltd. v. M. Bhanumathi 1990 ACJ 1043 (AP) and other decisions referred to in the Division Bench ruling. It is true that in Varamma's case (supra), it was held that within the provisions of Sections 95(2)(a) and 96(2), where an accident was caused by a motor vehicle carrying more than 6 persons resulting in the death of three persons, there was no contravention of the covenants of the policy though it is a contravention of the conditions of the statute. It was highlighted therein that the breach of condition of permit is not the same as the breach of the purpose for which it is issued and in that situation, the insurer was held to be liable to indemnify the owner regarding the accident and the compensation. The facts and circumstances of the said precedent do not apply to the facts of this case. Even if they appear to be similar, such a law declared therein would be no longer good or binding in view of the authoritative pronouncement of the Division Bench ruling of this Court in Bhanumathi's case (supra) which categorically declared the law that when passengers are carried for hire or reward in a lorry, viz., a goods vehicle, the contract of insurance not providing for such carriage, the insurer is not liable for death or bodily injury to such passengers. Therein a number of single Judge precedents have been referred to, one of which is Oriental Fire & Genl. Ins. Co. Ltd. v. Malta Chandra Rao 1987 ACJ 174 (AP), which is overruled. Incidentally it was also held therein that even non fare paying passengers are also subject to the same consequences. Apart from this precedent being a Division Bench one having binding force in preference to single Judge precedents, the strength of it is also enhanced due to the reliance on the Supreme Court pronouncement in Pushpabai's case 1977 ACJ 343 (SC) and Jugal Kishore's case 1988 ACJ 270 (SC). In that view of the matter, it must be taken that not only this Court with its binding precedent of the Division Bench but also the Supreme Court in more than one precedent has concluded the question that normally speaking the risk for the passengers in a goods vehicle is not covered as a rule unless it is proved that such a risk is covered by the stipulations in the policy itself, however, subject to proof of the same. Mr. Krishnamurthy, the learned Counsel for the claimants and Mr. Venkateswara Reddy, the learned Counsel for the owner of the vehicle, think that either Pushpabai's case or Jugal Kishore's case (supra) support their contention in view of Section 94 of the Act where the coverage of the insurance is compulsory, called the Act policy, the liability of the insurer to satisfy the award is implied in the statute notwithstanding the specific coverage under the terms of the policy. Dealing with the very question with regard to Sections 95(1)(a) and (b)(i) and (2) of the Act, holding that it does not cover the risk of persons carried for hire or reward, the Supreme Court in para 21 of Pushpabai's case concluded as follows:
Sections 95(a) and 95(b)(i) of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960, and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death 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. 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.
If this is read properly, it means that there is no compulsion in law to cover the risk of the third parties unless they are passengers in the vehicle carried for hire or reward or by reason of or in pursuance of contract of employment to cover the liability in respect of death or injury. In other words, meaning that in regard to the passengers carried in the goods vehicle, the coverage of the risk by contract is compulsory in order to put the insurer to the liability and not otherwise. It can be concluded that there is no implied statutory liability on the part of the insurer to cover the risk of fare paying or non fare paying passengers in the vehicle unless that is the subject or stipulation of the contract of insurance. Such a law having been declared by the Supreme Court and adopted by this Court in a Division Bench judgment should bind not only this Court but also all the Courts and Tribunals in the country, not merely in the State. Even assuming that there is any other precedent contrary to such a declaration of law by the Supreme Court and approved by this Court in the Division Bench, such law so declared should be taken as no longer good law nor having any binding force. Incidentally, it should also be categorically stated that for the same reasons, the law laid down in Varamma's case (supra) of this Court that the risk of such passengers carried in a goods vehicle is also covered, can never be accepted as good law under the circumstances. It must be pointed out that the precedent of the Supreme Court in Jugal Kishore's case (supra) is almost similar to the Division Bench precedent of this Court in Bhanumathis case (supra). Under the circumstances the reliance on New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 (SC), regarding the risk to third parties on the part of the insurer covered under the statute is neither relevant nor useful to this case. It can be added with caution that if the deceased were the third parties within the meaning of the law declared as above and not passengers in the goods vehicle, the law settled so far covers the risk of such passengers also. But at no stretch of imagination the passengers in a goods vehicle can be treated as third parties. At this stage, it can be concluded that Mr. Hanumaiah, the learned Counsel for the appellant in these cases, is totally right in contending that by virtue of Exh. B 1, there could not have been any liability on the part of the insurer to indemnify the owner of the vehicle to pay the compensation in these cases and that the finding of the Tribunal in this regard has no legal basis.
10. The last of the contentions of Mr. Krishnamurthy, the learned Counsel for the claimants, that by virtue of Section 92-A of the Act, the insurer in these cases cannot escape the 'no fault liability' comes up for consideration. He has strongly relied upon a latest pronouncement of this Court in this regard in Oriental Fire & Genl. Ins. Co. Ltd. v. Kodipally Mallaiah . At the outset, it must be mentioned that this precedent authoritatively dismissed the contention of the learned Counsel for the owner and the claimants that the passengers carried in a goods vehicle for hire or reward are also to be covered by the liability of the insurer to indemnify the owner. In para 4 while referring to K. Ramulu v. Shaik Khaja 1991 ACJ 359 (AP), of this Court, it has been categorically stated that as persons travelling in the lorry are carried contrary to the conditions in the policy, the insurance company would not be liable to pay the compensation. However, it was stated as follows:.The learned Counsel for the respondent Nos. 1 and 2, who are claimants, has, however, tried to contend that even if the insurance company cannot be said to be liable to pay the compensation on merits in view of such circumstances, it is liable to pay the minimum compensation under the theory of no fault liability as contemplated in Section 92-E of the Motor Vehicles Act (old). He has also tried to rely upon the decision of our High Court in K. Ramulu v. Shaik Khaja 1991 ACJ 359 (AP), in this regard. It is held in the said decision of our High Court that as Section 92-E has got overriding effect, and when the intendment under Section 94 is to have insurance coverage in all cases where the owner is statutorily liable, it is just and proper to hold that the insurer is also liable in regard to the compensation payable under Section 92-A. The learned Counsel for the appellant also did not try to dispute this proposition....
In the first place such a statement of law is based on the facts in the case that the claimants in that case were accompanying the goods. Secondly, a careful reading of the decision cannot be meant to mean that such a legal effect flows borrowing Section 92-A of the Act to fix the 'no fault liability' on the insurer. Even assuming that such a rule is laid as law of precedent, it is covered by the Division Bench decision of this Court in Bhunumathi's case 1990 ACJ 1043 (AP) and also of the Supreme Court in Pushpabai's case 1977 ACJ 343 (SC) and Jugal Kishore's case 1988 ACJ 270 (SC) and cannot be held to be either good law or binding precedent. This can be elaborated little more for proper understanding of the matter. As already pointed out, the liability of the insurer in a given case under the Motor Vehicles Act flows from the contract of insurance and the statutory provisions, Section 110-C(2-A), Section 95 and Section 96 of the Act and not otherwise. Section 92-A cannot be taken to be isolated from such provisions. If such a postulation is accepted, it may lead to absurdities. Because if such interpretation is given in all claim cases where there is no insurance policy, but the owner becoming liable to pay the 'no fault liability', then the insurance company would automatically become liable under Section 92-A of the Act to indemnify the owner of the liability to pay the compensation, viz., 'no fault liability'. Admittedly, there are at least four insurance companies, as can be judicially noticed, dealing with such insurance business. The question arises as to which insurance company should be made liable to pay the compensation or whether all of them should be made liable. Secondly, a proper reading of Section 92-A and Section 92-B shows that it is intended to be an interim measure or an interim compensation to merge in the final compensation to be determined under Section 110-A of the Act. Sections 92-A and 92-B of the Act read as follows:
Section 92-A. Liability to pay compensation in certain cases on the principle of no fault.-(1) Where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of seven thousand five hundred rupees.
(3) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under Sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
Section 92-B. Provisions as to other right to claim compensation for death or permanent disablement.-(1) The right to claim compensation under Section 92-A in respect of death or permanent disablement of any person shall be in addition to any other right (hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force.
(2) A claim for compensation under Section 92-A in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 92-A and also in pursuance of any right on the principle of fault, the claim for compensation under Section 92-A shall be disposed of as aforesaid in the first place.
The sum and substance of the above provisions appears to be, notwithstanding the proof of the fault or the proof of insurance and the stipulations as required and notwithstanding the defences available to the insurance company to be agitated under the fault liability, the Tribunal or the Court would award a minimum compensation so required in death and injury cases which should be the sum even if the ultimate compensation is less than that, more if it is more than the minimum compensation and at any rate the minimum in case there is no fault liability, Sub-clauses (a) and (b) of Section 92-B(3) in more than clear terms explain this. Basically, the provisions of Section 92-B having nothing to do with the liability of the insurer. It is because of the contract of insurance the insurer comes into picture to satisfy the 'no fault liability' compensation also. That is how Section 92-A(1) categorically states that the owner of the vehicle shall or as the case may be, owners of the vehicles shall jointly and severally be liable to pay the compensation and there is not even a whisper of the insurer in the provision. To read anything beyond the statute is not permissible. The interpretation of the statute should also be within the plain, grammatical interpretation, unless the interpretation is warranted beyond that having due regard to the totality of the provision in an enactment. If we read Sections 92-A and B, 110-A, 110-B, 110-C(2-A) and Sections 95 and 96 no such interpretation is possible to put the insurer to liability under Section 92-A notwithstanding the coverage of the insurance under the contract of insurance or the insurance policy. Judging the matter from any angle, such contention raised by the learned Counsel Mr. Krishnamurthy has no force.
11. That concludes the question in these cases that the appellant insurer cannot be made liable to satisfy the award passed by the Tribunal in the respective claim cases. At the same time, it must be concluded that the respondent No. 1 in the claim cases, viz., the owner of the vehicle cannot be absolved of the liability to pay the compensation. Admittedly and as proved, the accident occurred during the course of the employment of the driver under the respondent No. 1 owner. Both the law of Tons and the jurisprudence have conclusively mulcted the owner of the vehicle in liability to pay the compensation in such cases, the origin of which has been in the history. The law recognises vicarious liability in two different classes, viz., master for the acts of the servant done in the course of the employment and secondly, the representatives of the dead who are liable for the deeds done under the order by those whom they represent. The question does not arise because of the authorisation or otherwise. The authority for servants to act in the course of employment is always implied. To read in the jurisprudential concepts of such a dictum..Modern civil law recognises the vicarious liability in two chief classes of cases, viz., master's responsibility for the acts of his servants done in the course of their employment and secondly representatives of the dead who are liable for the deeds done in the flash by those whom they represent. The question does not arise because of the authorisation or otherwise. The authority for a servant to act in the course of employment is always implied. To read in the jurisprudential concept of such vicarious liability, it has been sometimes said that the responsibility of a master for his servant has its historical source in the responsibility of an owner for his slave. This, however, is certainly not the case. The English doctrine of employer's liability is of comparatively recent growth. It has its origin in the legal presumption, gradually become conclusive, that all acts done by a servant in and about his master's business are done by his master's express or implied authority, and are therefore in truth the acts of the master for which he may be justly held responsible. No employer will be allowed to say that he did not authorise the act complained of, or even that it was done against his express injunctions, for he is liable nonetheless. This conclusive presumption of authority has now, after the manner of such presumptions, disappeared from the law, after having permanently modified it by establishing the principle of employer's liability. Historically, as we have said, this is a fictitious extension of the principle, qui facit per alium facit per se. Formally, it has been reduced to the laconic maxim, Respondent superior.' (Pp. 401 and 402 of Salmond on Jurisprudence, 12th Edn., Reprint 1995).
12. The result is that all the appeals succeed. The awards in each of the cases in the claim petitions are set aside insofar as the appellant insurance company is concerned. However, the awards shall stand modified to the effect that the liability to pay compensation in each of the cases shall be on the respondent No. 1, the owner of the vehicle. In the peculiar circumstances, there shall be no order as to costs in these appeals.