R.K. Patra, J.
1. The Insurance Company has filed this Letters Patent Appeal challenging the judgment of the learned Single Judge dismissing its appeal which was directed against the award of the Second Motor Accident Claims Tribunal. Cuttack.
2. Respondents 1 to 4 as the widow and three minor sons of the deceased-Jadumani Mohanta filed Misc.Case No. 974 of 1989 before the Second Motor Accident Claims Tribunal (in brief Tribunal) claiming compensation of Rs. 1,50,000/-. Their case is that the deceased-Jadumani Mohanta was working as Salesman in the office of the Manager, Livestock Breeding and Dairy Farm, Keonjhar. In the night of 17.9. 1989. he was returning from Cuttack to Keonjhar with some cows procured for that farm in the offending truck bearing registration number OIS 1749. Near Sankharidiha the said truck dashed against another truck, which was coming from the opposite direction. As a result, the deceased, who was sitting in the cabin of the offending truck was seriously injured and later died. According to claimants, the accident took place due to rash and negligent driving of the truck in which the deceased was travelling in course of his employment with the cows.
3. On the basis of the evidence adduced in the case, the Tribunal held that the accident took place due to rash and negligent driving of the offending truck-OIS 1749 because of which the deceased was killed. The Tribunal fixed liability on the appellant holding that it is liable to undertake the risk of a person moving in a goods vehicle as owner of the goods. Having regard to the age of the deceased and other relevant factors, it awarded a sum of Rs. 1,10,000/- as compensation in favour of respondents 1 to 4. Being aggrieved by the aforesaid award, the appellant filed M.A. No. 457 of 1993 and the learned Single Judge by the impugned judgment declined to interfere with the award.
4. The only point urged by Sinha on behalf of the appellant before us is that the offending vehicle being a goods vehicle, it was not obligatory on the part of the insurer to ensure any liability of the owner in respect of death or bodily injury to anyone carried as a passenger in a goods vehicle. This very point was taken by the appellant before the learned Single Judge which did not find favour with him. Before the learned Single Judge, the Full Bench decision of this Court in New India Assurance Company Limited v. Kanchan Bewa, 1994(I) O.L.R. 1 was pressed into service. The learned Single Judge noticed that the Full Bench dealt with a case covered under Section 95 of the Motor Vehicles Act. 1939, whereas the present one is governed by the Motor Vehicles Act, 1988 and there is material difference between the provisions contained in Section 95 of the Motor Vehicles Act. 1939 and its corresponding provisions in Section 147 of the Motor Vehicles Act, 1988. He accordingly observed that the ratio laid down in Kanchan Bewa(supra) is not applicable to the present case and the appellant cannot escape its statutory liability.
5. We may note that the Full Bench decision of this Court in Kanchan Bewa (supra) has been approved by the Supreme Court in Smt. Mallawwa v. Oriental Insurance Co, Ltd.. AIR 1999 S.C. 1939. After construing Section 95 of the Motor Vehicles Act. 1939 their Lordships of the Supreme Court in the aforesaid case held that the Insurance Company is not liable in case of death of the owner of goods carried in a goods vehicle. In para-10 of the judgment, the Court observed as follows :
'For the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers have carried if the vehicle was of that class. Keeping in mind the classification of vehicles, by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to Section 95 (1) (h). the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward.
In that paragraph, the Supreme Court quoted with approval paragraphs 18, 19, 22 and 23 of the judgment of this Court in Kanchan Bewa (supra).
6. The case at hand is governed by the Motor Vehicles Act. 1988. The provisions of Section 147 of this Act (prior to amendment of 1994) was considered by the Supreme Court in New India Assurance Company v. Satpal Singh, AIR 2000 S.C. 235 wherein it was held that under the new Act an insurance policy covering 3rd party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Correctness of the ratio in Satpal Singh (supra) was doubted and the matter accordingly came to be decided by a Three-Judge Bench of the Supreme Court in New India Assurance Co. Ltd. v. Asha Rani, AIR 2003 S.C. 607. Considering Section 147 of the 1988 Act, the Supreme Court held that the owner of the goods or his authorised representative carried in goods vehicle if dies or suffers any bodily injury in the accident, the insurer would not be liable to pay compensation. Accordingly, the decision in the case of Satpal Singh (supra) was over-ruled (see also Oriental Insurance Company Ltd. v. Devireddy Konda Reddy, 2003 AIR SCW 513).
7. In view of the aforesaid, the impugned judgment of the learned Single Judge cannot be supported and is hereby reversed. As a consequence, the award of the Claims Tribunal fixing the liability on the petitioner is hereby vacated. The claimants are. however, free to proceed against the owner of the vehicle for realisation of the compensation.
8. In the result, the appeal is allowed.
P.K. Misra, J.
9. I agree.