Gopal Vs. State of M.P. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - ' 2. the issue arises in none-too happy circumstances. not that we want to break loose or that we fail to grasp the rationale of observations made in these judgments. it is temporary in nature and holds good till the outcome of appeal becomes known. this application cannot be detached or disintegrated from the appeal to be posted before the same bench/judge who had dealt with such like application earlier.b.a. khan, j.1. we are seized of a reference from lord chief justice on :-'whether bail application filed with cr. a. no. 997/98 was to be treated as first bail application or not.'2. the issue arises in none-too happy circumstances. it all started with filing of cr. a. no. 997/ 98 by appellant along with accompanying la. no. 3002/98 under section 389 cr. p.c. praying for suspension of his sentence. the application was rejected by the concerned roaster bench (chitre, j) by order dated 9-9-1998. meanwhile there was a change in roaster and criminal appeal roaster went to vyas, j. appellant filed second application (la. no. 3612/98) again under section 389 cr. p.c. perhaps to try his luck before the new bench. this application was directed to be listed before the same bench who had decided the first application (chitre, j.) the matter was placed before chitre (j) who directed registrar to follow general roaster. the registrar treating the second application as bail application listed it before chitre (j) leading to passing of order dated 16-10-199 8 holding that the application was for suspension of sentence and could not be disintegrated from main appeal. this order suggested that application was to be listed before criminal roaster bench. caught between two fires, registrar referred the matter to lord chief justice resulting in present reference.3. we were taken from pillar to post in search of an answer. our attention was also drawn to supreme court judgment in shahzad hassan khan's case air 1987 sc 1613 : 1997 cri lj 1872 and full bench judgment of this court in 1993 mplj (i) (sic) observing that it was a rule of convenience based on judicial discipline that all subsequent bail applications should be placed before the same bench/judge who dealt with the first application. but we are not impressed. not that we want to break loose or that we fail to grasp the rationale of observations made in these judgments. we only wish to make it clear that observations in these judgments required to be read in their particular context and it cannot be said that these judgments laid down an abstract rule that all subsequent bail applications had to be listed before the same judge/bench who had dealt with first bail application. therefore, as on today there is no law or precedent which prescribes that a subsequent bail application was to be posted before the same judge/bench who handled the first application. nor could there be one because it would just, be not be workable in the present day functioning where roaster was controlled by lord chief justice arid was changeable at the drop of hat. no bench was sure what it would be handling tomorrow, nor could it deal with a subject which was not assigned to it in roaster.4. but all this apart, present controversy appears to be much ado about nothing because both applications stand filed by appellant for suspension of his sentence under section 389 cr. p.c. these are not liable to be treated as bail applications invoking jurisdiction of high court under section 439 cr. p.c. needless to point out that an application for suspension of sentence is different from a bail application simpliciter. the two fall under separate jurisdiction - the first under section 389 of chapter 29 and the other under section 439 of chapter 32, cr. p.c. the first application can only be maintained by a convict in a pending appeal, and an order passed in it, by its very nature, is an interim order which suspends the sentence of a convict and puts it in abeyance pending adjudication of his appeal. it is temporary in nature and holds good till the outcome of appeal becomes known. the fact that it also ends up in a bail order would not change its character, to convert it into a bail application. as against this, an order passed in bail application in exercise of jurisdiction under section 439 is a final order which ends the custody of an accused person finally. therefore, both types of applications stand on a different footing and fall in separate compartments. the one cannot be equated with the other, more so for purposes of listing before a bench. what is important to note is that an application for suspension of sentence is a class by itself maintainable only in a pending appeal and this forms an integral part of the appeal. it would thus sink or swim with the appeal and would receive consideration wherever the appeal does. if the appeal falls under a different roaster from time to time, so would the application for suspension of sentence. this application cannot be detached or disintegrated from the appeal to be posted before the same bench/judge who had dealt with such like application earlier. such a practise, if adopted, would lead to anomalous situations, besides hampering judicial functioning with appeal being handled by one bench and the application for suspension of sentence by the other.5. proceeding on this premise, we accordingly hold that an application for suspension of sentence under section 389, cr. p.c. filed in a pending criminal appeal is an integral part of such appeal and would move, along with the appeal and be posted before the bench holding criminal appeal roaster. it cannot be treated as an ordinary bail application and detached from the appeal for posting before the bench/court who had handled a similar or first such application earlier. the ratio of the full bench judgment of this court in 1993 mplj cannot be overstreched to lay down an abstract rule that a second application for suspension of sentence was to be treated as bail application and posted before the same bench/judge who dealt with the first application.6. viewed thus, the question of any first or second bail application in the present case does not arise because the two applications in the case were for suspension of sentence under section 389, cr. p.c. and liable to be posted before and considered by the bench handling criminal appeal roaster.7. the reference is answered accordingly.