R.K. Varma, J.
1. This order shall also govern (he disposal of Misc. Appeal No. 28/84 (United India Insurance Co. v. The Manager Adim Jati Seva Sahakari Samiti & others).
2. This appeal has been filed by the owner of the truck bearing registration No. MTS-6911 against the Award dated 5-10-1983 passed in Claim Case No. 20 of 1982, whereby the learned Tribunal has awarded Rs. 15,235.33 p. as compensation together with interest for loss of 125 bags of fertilizer which were completely, damaged as a result of overturning of the truck due to rash and negligent driving by its driver.
3. It is not disputed that on 23-11-1981 two hundred bags of chemical fertilizer were being carried for the owner-consignee.of the goods viz., the claimant-respondent-Co-operative Society from Sendhwa to Pansemal and that the truck carrying the goods turned turtle near Bamaniya Nala due to rash and negligent driving of the truck, as has been held by the learned Tribunal. It is also not disputed at this stage that 125 bags of urea costing Rs. 15,235.33 were destroyed having fallen in the Nala as a result of the accident. The owner of the truck in question was insured with the' Insurance Company-respondent No, 4 in respect of the truck, to cover liability in respect of the accidents involving death or bodily injury to persons arising out of the use of the truck in question or damages to any property of a third party so arising. On a claim petition having been filed by the consignee- co-operative society, the learned Tribunal, on appreciation of evidence adduced in the case, found that the truck-owner and the driver were jointly and severally liable to pay compensation for the damages to goods amounting to Rs. 15,235.33 p. with interest amounting to Rs. 772.18 and out of this amount, the insurance Company was held liable to pay Rs. 2,000/- which was the limit of its liability according to Ihe insurance policy. Being aggrieved by the Award, the owner of the truck has filed the present appeal and the Insurance Company has filed the connected appeal No. M.A. No. 28/84.
4. The contention of the learned counsel appearing on behalf of the appellant is that the appellant-owner of the truck was not liable for the damage or loss caused to the consignment of fertilizer bags in the accident as the goods were carried on the risk of the owner of the goods viz., Aadim Jati Sewa Sahakari Sanstha as per the terms of the contract for transport of goods printed on the back-side of the transport-receipt dated 23-11-1981 (Ex. P-1. The learned Tribunal has considered this contention and has held that since the printed terms recorded on the receipt overleaf (Ex. P 1) issued on behalf of the truck owner, were not brought to, the notice of the owner of the goods viz. respondent-co-operative society at the time of booking the same, cannot be held binding on it. The learned Tribunal has, therefore, awarded compensation of Rs. 15,235.33 being the value of fertilizer bags which were completely damaged on account of the accident during the transit of goods. The Insurance Company has been held liable to indemnify the insured appellant-truck-owner lo the extent of Rs. 2,000/- under Section 95(2)(d) of the Motor Vehicles Act (hereinafter referred to as 'the Act'). The learned Tribunal, in my opinion, is right in holding in the circumstances, that the goods were not carried on owner's risk and the truck owner was liable for the damage to their property as a result of the accident caused by rash and negligent driving of the truck driver.
5. But the main contention of the learned counsel for the appellant-truck-owner in this appeal as well as the learned counsel for the Insurance Company in the connected Misc. Appeal No. 28/84 which has been filed by the Insurance Company, is that whereas the claimant owner of the goods could have filed a civil suit for damages against the owner and driver of the truck, no claim petition was maintainable by the Claims Tribunal under the Act since the learned Tribunal had no jurisdiction to adjudicate upon the claim in respect of the damage to the property in question, it being not the property of a third party.
6. According to the submission of the learned counsel for the appellant a Claims Tribunal is constituted under Section 110(1) of the Act for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damage to any property of a third party so arising or both and the Insurance Company under Section 95(2)(d) of the Act was required to cover a liability incurred in respect of any one accident up to a limit of Rs. 2,000/- on the date of accident i.e. prior 10 the amendment Act 47 of 1982 (1-10-82). The contention raised essentially is that the said Co-operative Society, owner of the goods is not a 'third party' and consequently, neither Section 110(1) of the Act nor Section 95 can have any application to the instant case. It is pointed out that Section 95 which provides for requirements of policy and limits of liability, and Section 110(1) which provides for constitution of Claims Tribunal for adjudicating upon claims for compensation fall under Chapter VII of the Act entitled 'Insurance of motor vehicles against 'third party' risks'. The claim of damages in respect of property of the cooperative society in the instant case, according to the submission of the learned counsel, being not of a 'third party' was not entertainable by the Tribunal and consequently, the adjudication by the Tribunal is without jurisdiction. Similar is ihe contention advanced on behalf of the Insurance company in the connected appeal Misc. Appeal No. 28/33.
7. In support of the contention that the claimant-Co-operative Society, owner of the goods was not a 'third party', reliance has been placed on the following observations of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd., AIR 1977 SC 1735: --
'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 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 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'. 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.'
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The observation negativing the plea that words 'third party' are wide enough to cover all persons except the person and the insurer, is particularly relied upon by the learned counsel for respondent-Insurance Company and appellant-Truck-owner. In my opinion, the observation referred to is of no avail to the learned counsel since it does not lay down that the owner of the goods which was under transport cannot be called a 'third party'. In the context the observation only means that risk to person or property every-one who is a 'third party' is not required to be covered by the Insurance Company under the statutory requirment as provided in Section 95. All the same all such persons whose risk on account of the use of vehicle is required to be covered are 'third party' in the sense that they are other than the 'first party' the insurer and the 'second party' the insured. The use of the word 'third party' in Ch. VIII entitled as Insurance of Motor Vehicles against third party's risk' is apparently in relation to the insurer and the insured person who are first and second parties to the contract of insurance. Section 95(1)(b)(i) of the Act requires the insurer to cover in its policy of insurance risk of liability of the insured in respect of the death, bodily injury to person or damage to property of a third party but the proviso to that section makes certain exceptions to the requirement of coverage by policy in respect of persons who also fall in the category of 'third party'. A passenger in a vehicle whose owner is insured is also a 'third party' qua the insurer. The learned counsel for the Insurance Company seemed to suggest that the passenger in a vehicle of the insured does not fall in the category of 'third party', and so also the owner in respect of the goods which were under transport in the vehicle of the insured as in the instant case, cannot be called a 'third party'. Learned counsel, in my opinion, is not right in his submission. In this connection, reference may be made to the following observation of the Supreme Court in M. K. Kunhi Mohammed v. P. A. Ahmed Kutty, (1987) 2 ACC 346 : (AIR 1987 SC 2158).--
'We also do not find any justification for continuing the distinction between the liability of the insurer to pay compensation to passengers and the liability of the insurer to pay compensation to other 'third parties' under the said provisions.''
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This observation makes it clear that passengers are 'third parties' who are compared with other 'third parties' in the matter of liability to pay compensation as provided in the existing provisions.
8. In view of the discussion aforesaid, I find no substance in the contention that the appellant-co-operative society, owner of the goods, was not a 'third party'. The further contention that the Tribunal had no jurisdiction to entertain the claim of the ctaimant-respondent-co-operative society owner of the goods, on the supposition that it was not a 'third party' is, therefore, without merit and must be rejected.
9. Section 110 of the Act before it was amended by the Amendment Act 1969 (Act 56 of 1969, dated 2-3-1970) provided for constitution of Motor Accidents Claims Tribunal for the purpose of adjudication upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles but after the said amendment the Claims Tribunals have also been given the jurisdiction to adjudicate upon claims for damages to property of the 'third party' arising out of such motor accidents subject to the proviso that where such claim includes a claim for compensation in respect of damage to property exceeding Rs. 2,000/- the claimant may at his option refer a claim to the Civil Court for adjudication and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.
10. In the instant case, the claimant-cooperative society, owner of the goods has claimed damages in respect of 120 bags of Urea which were completely destroyed as a result of the motor accident in question. The claimant being a 'third party', its claim for damages is entertainable in the Claims Tribunal a's provided in Section 110 of'the Act. Even though the claim for damages in respect of property in this case exceeded Rs. 2,000/-, the claimant has not opted to refer the claim to a Civil Court for adjudication. Consequently, the claim has been validly entertained by the learned Tribunal and the award given by it in respect of damage to the property of the claimant is within jurisdiction and is valid.
11. As regards the liability of the Insurance Company which has been determined by the learned-Tribunal as limited to Rs. 2,000/-, the learned counsel for the Insurance Company has pointed out that the Insurance Company was under no statutory obligation to cover any contractual liability as has been provided in proviso (iii) to Section 95(l)(b) of the Act and the Insurance Company has in its policy not agreed to indemnify the vehicle owner in respect of damage to goods of the 'third party' arising during transport under contract of carriage.
12. The Insurance Policy produced in evidence in this case, provides for no liability of the Insurance Company to 'third party' in respect of damage to goods under transport. The relevant Clause (d) of Section II of the Policy dealing with liability to 'third parties' states thus :
'The Company shall not be liable in respect of damage to property belonging to or held in trust by or in the custody or control of the insured or a member of the insurer's household or being conveyed by the Motor Vehicle'.
From the Insurance Policy, therefore, it is apparent that the Company has not agreed to indemnify the insured in respect of damage to property being conveyed by the Motor Vehicle. The insured owner of the vehicle was under a contractual obligation to transport the bags of Urea belonging to the owner-co-operative society to destination in safe condition. But because of the damage to the goods in transit, the owner of the vehicle is under contractual liability to compensate for the loss of the goods and this contractual liability has not been covered as aforesaid. As such, the liability to pay damages in respect of the Urea bags damaged in the motor accident during transport, is of the owner of the vehicle and not of the Insurance Company. Reliance has been placed on a decision of this Court in National Insurance Co. Ltd. v. Smt. Kailash Kumari, (M. A. No. 57/83, decided on 1-8-1986) : (reported in 1987 (1) ACC 5) wherein the Insurance Company has been held not liable on account of an identical Clause (d) of Section II in the Insurance Policy pertaining to that case.
13. The learned Tribunal has determined the Act liability of the Insurance Company as Rs. 2,000/- in respect of damage to the Urea bags belonging to the claimant-co-operative society in accordance with Clause (d) of Sub section (2) of S- 95 of the Act as it stood on the date of the accident (i.e. prior to Amendment Act 47 of 1982). But the provision of Sub section (2}pfS. 95 of the Act which provides for limits of insurer's liability is subject to proviso to Sub section (1) of Section 95 of the Act. Consequently, the question of holding the liability of the Insurance Company to a limit of Rs. 2,000/- could arise only if the Insurance Company had covered the liability of the insured in respect of damage to property of 'third party' which was being conveyed by the insured's vehicle under a contract of safe transport of goods to destination. But in the instant case, the Insurance Policy has specifically provided that it shall not be liable in respect of damage to property being conveyed by the Motor Vehicle.
14. On behalf of the claimant-owner of the goods as well as the appellant-owner of the vehicle reliance has been placed on another decision of this Court in the United India Fire and General Insurance Co. Ltd. v. Rehman (M.A. No. 73/76, decided on 3-9-1981) wherein the Insurance Company has been held liable for damage in respect of loss of goat which died during transport in a truck which turned turtle on the way. But that case is distinguishable from the present one inasmuch as the Insurance Policy was not produced there and in the absence of Policy, it could not be said that the insurer had not covered the risk or had limited its liability equal to the Act liability only.
15. In view of the discussion aforesaid, this appeal fails and is hereby dismissed. The connected appeal (Misc. Appeal No. 28/84) filed by the Insurance Company, is allowed and the Insurance Company is held not liable to pay Rs. 2,000/- or any amount the owner of the vehicle Kishori is held liable to pay the entire damages in respect of damage to the goods amounting to Rs. 16,007/- as determined by the learned Tribunal together with interest @ 12% per annum from the date of claim petition till realisation. The award of the learned Tribunal shall stand modified accordingly.
There shall, however, be no order as to costs of both these appeals.