New India Assurance Co. Ltd. Vs. Smt. Badam and Others - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - (2) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable (this would include owner of the goods as well as his employees); (3) the insurer shall not be.orderverma, j. (1) the appeal nos. 449/99, 452/99 and 453/99 have been preferred by the new india assurance company limited against the award dated 27.9.1997 passed by the motor accident claims tribunal, bundi in mact case no. 133/89, in mact case no. 129/89 and in mact no. 110/89 decided by the common order.(2) about 15 persons were travelling in a matador no. rng 1444 on 22.5.1989. the matador over-turned resulting death of four persons and injuries to number of other such travellers. claim applications were filed by different claimants which wereconsolidated and decided by one common order. in the written statement filed by the insurance company, it was pleaded that the matador was insured as a commercial vehicle for cauying the goods whereas at the time of accident it was carrying passengers and there was a breach of condition of policy. another defence being taken by the insurance company was to the effect that the driver of the vehicle had no valid license. afore-mentioned appeals have been fied by the insurance company only on ground that the claimants being passengers were not liable to be compensated by the company for breach of conditions of insurance policy. the tribunal on the evidence had found that the deceased persons must have been travelling in the matador as labourers and not as passengers for hire and reward and, therefore, had held that the insurance company was liable. for the limited question being raised by the insurance company, in the present appeals, there is hardly any necessity to narrate the facts which have been incorporated in the award itself in regard to occurrence of the accident.(3). appeal no. 245/98 has been filed by suresh oil mill, the owner of the vehicle matador against the aforesaid award dated 27.9.1997 in mact case no. 110/89 wherein award has been passed for rs. 1,25,200/-with interest w.e.f. 31.8.1989. the tribunal had made liable the insurance company and other non claimant respondents to the tune of rs. 15,0007 and the remaining amount of rs. l,10,200/ have been fastened on the present appellant. the claim had been preferred by the legal heirs of the deceased nand bharti who was travelling in matador rng 1444. the matador had met an accident. in the said accident, four persons had died and one was injured and total five claim applications were filed. the deceased was of the age of 35 years with income of rs. 1,000/- p.m. a multiplier of 12 was applied.(4). the owner has challenged the award on the ground that the deceased was travelling in the matador along with his goods for which he had paid fare and thus the vehicle was fully covered with the terms and conditions of the policy. it is also stated that even additional premium was paid and causing of the accident actually amounted to un-limited third party liability. the appellant submits that whole of the amount ought to have been paid by the insurance company as compensation and no liability should be fixed on the owner appellant.(5). appeal no. 775/99 had also been filed by suresh oil mill challenging the said award whereby a compensation has been awarded to the tune of rs. 67,000/- with interest. out of the said amount rs. 15,000/- have been ordered to be paid by the insurance company whereas the remaining amount had been fastened on the appellant owner of matador. the challenge to the award is identical as has been made in cma no. 245/98.(6). civil misc. appeal no- 49/98 has been filed by the claimanl kesar baai wife of deceased nand bharti and the sons and daughters of the deceased. the appellants of the deceased had also preferred a joint claim in mact case no. 110/89 with the prayer for enhancement of the award and for granting the interesl from the date of the application and to award the compensation against all the respondents in the claim severally and jointly.(7). in the appeal nos. 245/98, 775/99 and 49/98 respondents had appeared and put in their appearance and arguments were heard.(8). in the appeals filed by the insurance company arguments were heard.counsel for the respondent claimants and the owner had also addressed argumentsafter having accepted notices as they were already appearing in the connectedappeals.(9). all the above-said appeals have been preferred against the common award of the tribunal arising out of the same accident i.e. appeal nos. 449, 452 and 453 of 1999 by the insurance company denying its liability in toto; appeal nos. 245, 775 of 1999 by the owner of the vehicle with the prayer that the insurance company is liablefor whole of the amount whereas misc. appeal no. 49/98 has been filed by the claimant of the deceased for enhancement of compensation arising out of the same accident.(10). in all the above-said cases admittedly, the accident had occurred ori 22.5.1989 when the old act was in force. the new act had come into force on 1.7.1989. counsel for the insurance company states that in view of the judgments of the supreme court in mallawwa & others vs. oriental'insurance co. ltd. and others (1), where the accident had been caused and the injuries were sustained by the persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously, it was held that the insurance company was nol liable. the facts in mallawwa case (supra) before the supreme court in civil appeal no. 880/86 were that one poonam chand when he has travelling with his goods in a goods vehicle died when that vehicle met with an accidenl. on filing the application before the motor accident claims tribunal, kola his application was dismissed on the point that the driver was not rash and negligent in driving the vehicle. it was also observed by the tribunal that the insurance company was exempted from any liability as the deceased was travelling in a goods vehicle contrary to the motor vehicles rules. aggrieved by that order, the claimants filed an appeal to the high court of rajasthan. learned single judge of the high court had referred the matter to the larger bench for deciding the queslion of liability of the insurance company under section 95 and 96 of the act in respect of death or bodily injury caused to persons travelling in a goods vehicle with goods or without goods and pursuant to the contract of service with the owner's vehicle or otherwise. the full bench of the rajasthan high court had held that (1) in case of graluitous passenger going on a joy- ride or on his own responsibility, insurance company is not liable; (2) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable (this would include owner of the goods as well as his employees); (3) the insurer shall not be. liable to cover liability in respect of employee of the insured for death or bodily injury arising out of and in the course of his employment other than the liability arising under the workmen's compensation act, 1923, if such employee is; (a) engaged in driving such vehicle or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or (c) if it is a goods vehicle, being carried in the vehicle; and (4) the insurer shall not be liable to cover any contractual liability. the high court had assessed the compensation of rs. 96,000/- out of which insurance company was liable to pay to the extenl of rs. 50,000/-. the mailer was challenged before the hon'ble supreme court. after discussing the various provisions of the motor vehicles act, the hon'ble apex court had observed that being concerned with the beneficial legislation of the motor vehicles acl, normally liberal interpretation is preferred but the queslion was whether without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. it was observed that this would perhaps robe the third proviso dealing with coverage of contractual liabilily. the supreme court had further observed that to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. the position would thus become very uncertain and would vary from case to case. production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.(11). the full bench judgment of the rajasthan was not found to be in order on the ground that sub-section (2) of section 95 specifies the limits of liabilily and clause (a) deals with goods vehicle; and in so far as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. this is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying ofeither the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also.(12). counsel for the parties also rely on the judgment reported in the case in new india assurance company vs. satpal singh and others (2), wherein it was held 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 of class. hence the decisions rendered under the old act vis-a-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. even though the insurance company was not liable as per the old act and as has been confirmed by the hon'ble supreme' court in the case of mallawwa (supra) too, it was observed that the dictim in satpal singh's case (supra) shall only be made applicable and shall cover the cases which arise under the old act. meaning thereby in the present case, the law laid down as mallawwa's case (supra) is applicable and the insurance company is not liable.(13). in view of the discussions and reasons mentioned above, the three appeals filed by the insurance company being s.b. civil misc. appeal nos. 449/99, 452/99 and 453/99 are to be allowed and that of two filed by the owner being s.b. civil misc. appeal no. 245/98 and 775/99 are to be dismissed.(14). however, for the reason that the case relates to the year 1989 and very nominal amount has been ordered to be paid by the insurance company which amount stands already paid and despite the fact that the appeals of the insurance company are being allowed and those of the owner are being dismissed, in the circumslances of the case, i feel it appropriate in giving a direction to the effect that the amount if already stands paid by the insurance company shall not be recovered from the claimants.(15). in regard to the appeal filed by the claimant for enhancement, in my opinion, on the evidence as led by the parties before the tribunal, the tribunal had rightly assessed the dependency income and also has applied the correct multiplier. no interference is called for. in the circumstances the appeal no. 49/98 for enhancement is also dismissed.(16). consequently, s.b. civil misc. appeal nos. 449/99, 452/99 and 453/99 are allowed and s.b. civil misc. appeal no. 245/98, 775/99 and 49/98 are dismissed. costs are made easy in all the appeals.

Judgment:
ORDER

Verma, J.

(1) The appeal Nos. 449/99, 452/99 and 453/99 have been preferred by the New India Assurance Company Limited against the award dated 27.9.1997 passed by the Motor Accident Claims Tribunal, Bundi in MACT Case No. 133/89, in MACT Case No. 129/89 and in MACT No. 110/89 decided by the common order.

(2) About 15 persons were travelling in a Matador No. RNG 1444 on 22.5.1989. The Matador over-turned resulting death of four persons and injuries to number of other such travellers. Claim applications were filed by different claimants which wereconsolidated and decided by one common order. In the written statement filed by the insurance company, it was pleaded that the Matador was insured as a commercial vehicle for cauying the goods whereas at the time of accident it was carrying passengers and there was a breach of condition of policy. Another defence being taken by the insurance company was to the effect that the driver of the vehicle had no valid license. Afore-mentioned appeals have been fied by the insurance company only on ground that the claimants being passengers were not liable to be compensated by the company for breach of conditions of insurance policy. The Tribunal on the evidence had found that the deceased persons must have been travelling in the Matador as labourers and not as passengers for hire and reward and, therefore, had held that the insurance company was liable. For the limited question being raised by the insurance company, in the present appeals, there is hardly any necessity to narrate the facts which have been incorporated in the award itself in regard to occurrence of the accident.

(3). Appeal No. 245/98 has been filed by Suresh Oil Mill, the owner of the vehicle Matador against the aforesaid award dated 27.9.1997 in MACT Case No. 110/89 wherein award has been passed for Rs. 1,25,200/-with interest w.e.f. 31.8.1989. The Tribunal had made liable the insurance company and other non claimant respondents to the tune of Rs. 15,0007 and the remaining amount of Rs. l,10,200/ have been fastened on the present appellant. The claim had been preferred by the legal heirs of the deceased Nand Bharti who was travelling in Matador RNG 1444. The Matador had met an accident. In the said accident, four persons had died and one was injured and total five claim applications were filed. The deceased was of the age of 35 years with income of Rs. 1,000/- p.m. A multiplier of 12 was applied.

(4). The owner has challenged the award on the ground that the deceased was travelling in the Matador along with his goods for which he had paid fare and thus the vehicle was fully covered with the terms and conditions of the policy. It is also stated that even additional premium was paid and causing of the accident actually amounted to un-limited third party liability. The appellant submits that whole of the amount ought to have been paid by the insurance company as compensation and no liability should be fixed on the owner appellant.

(5). Appeal No. 775/99 had also been filed by Suresh Oil Mill challenging the said award whereby a compensation has been awarded to the tune of Rs. 67,000/- with interest. Out of the said amount Rs. 15,000/- have been ordered to be paid by the insurance company whereas the remaining amount had been fastened on the appellant owner of Matador. The challenge to the award is identical as has been made in CMA No. 245/98.

(6). Civil Misc. Appeal No- 49/98 has been filed by the claimanl Kesar Baai wife of deceased Nand Bharti and the sons and daughters of the deceased. The appellants of the deceased had also preferred a joint claim in MACT Case No. 110/89 with the prayer for enhancement of the award and for granting the interesl from the date of the application and to award the compensation against all the respondents in the claim severally and jointly.

(7). In the appeal Nos. 245/98, 775/99 and 49/98 respondents had appeared and put in their appearance and arguments were heard.

(8). In the appeals filed by the insurance company arguments were heard.Counsel for the respondent claimants and the owner had also addressed argumentsafter having accepted notices as they were already appearing in the connectedappeals.

(9). All the above-said appeals have been preferred against the common award of the Tribunal arising out of the same accident i.e. appeal Nos. 449, 452 and 453 of 1999 by the Insurance Company denying its liability in toto; Appeal Nos. 245, 775 of 1999 by the owner of the vehicle with the prayer that the insurance company is liablefor whole of the amount whereas Misc. Appeal No. 49/98 has been filed by the claimant of the deceased for enhancement of compensation arising out of the same accident.

(10). In all the above-said cases admittedly, the accident had occurred ori 22.5.1989 when the old Act was in force. The new Act had come into force on 1.7.1989. Counsel for the insurance company states that in view of the judgments of the Supreme Court in Mallawwa & Others vs. Oriental'Insurance Co. Ltd. and others (1), where the accident had been caused and the injuries were sustained by the persons carried in a goods vehicle either along with their goods or after paying fare or gratuitously, it was held that the insurance company was nol liable. The facts in Mallawwa case (supra) before the Supreme Court in Civil Appeal No. 880/86 were that one Poonam Chand when he has travelling with his goods in a goods vehicle died when that vehicle met with an accidenl. On filing the application before the Motor Accident Claims Tribunal, Kola his application was dismissed on the point that the driver was not rash and negligent in driving the vehicle. It was also observed by the Tribunal that the insurance company was exempted from any liability as the deceased was travelling in a goods vehicle contrary to the Motor Vehicles Rules. Aggrieved by that order, the claimants filed an appeal to the High Court of Rajasthan. Learned Single Judge of the High Court had referred the matter to the larger Bench for deciding the queslion of liability of the insurance company under Section 95 and 96 of the Act in respect of death or bodily injury caused to persons travelling in a goods vehicle with goods or without goods and pursuant to the contract of service with the owner's vehicle or otherwise. The Full Bench of the Rajasthan High Court had held that (1) in case of graluitous passenger going on a joy- ride or on his own responsibility, insurance company is not liable; (2) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable (this would include owner of the goods as well as his employees); (3) the insurer shall not be. liable to cover liability in respect of employee of the insured for death or bodily injury arising out of and in the course of his employment other than the liability arising under the Workmen's Compensation Act, 1923, if such employee is; (a) engaged in driving such vehicle or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or (c) if it is a goods vehicle, being carried in the vehicle; and (4) the insurer shall not be liable to cover any contractual liability. The High Court had assessed the compensation of Rs. 96,000/- out of which insurance company was liable to pay to the extenl of Rs. 50,000/-. The mailer was challenged before the Hon'ble Supreme Court. After discussing the various provisions of the Motor Vehicles Act, the Hon'ble Apex Court had observed that being concerned with the beneficial legislation of the Motor Vehicles Acl, normally liberal interpretation is preferred but the queslion was whether without any extra premium having been paid, the owner of a goods vehicle can claim indemnification from the insurer just because once in a year the goods vehicle had carried a passenger for hire or reward along with the goods. It was observed that this would perhaps robe the third proviso dealing with coverage of contractual liabilily. The Supreme Court had further observed that to find out whether an insurer would be liable to indemnify an owner of a goods vehicle in a case of the present nature, the mere fact that the passenger was carried for hire or reward would not be enough; it shall have to be found out as to whether he was the owner of the goods, or an employee of such an owner, and then whether there were more than six persons in all in the goods vehicle and whether the goods vehicle was being habitually used to carry passengers. The position would thus become very uncertain and would vary from case to case. Production of such result would not be conducive to the advancement of the object sought to be achieved by requiring a compulsory insurance policy.

(11). The Full Bench judgment of the Rajasthan was not found to be in order on the ground that sub-section (2) of Section 95 specifies the limits of liabilily and clause (a) deals with goods vehicle; and in so far as the person travelling in goods vehicle is concerned, it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that legislature did not have in mind carrying ofeither the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also.

(12). Counsel for the parties also rely on the judgment reported in the case in New India Assurance Company vs. Satpal Singh and others (2), wherein it was held 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 of class. Hence the decisions rendered under the old Act vis-a-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. Even though the insurance company was not liable as per the old Act and as has been confirmed by the Hon'ble Supreme' Court in the case of Mallawwa (supra) too, it was observed that the dictim in Satpal Singh's case (supra) shall only be made applicable and shall cover the cases which arise under the old Act. Meaning thereby in the present case, the law laid down as Mallawwa's case (supra) is applicable and the insurance company is not liable.

(13). In view of the discussions and reasons mentioned above, the three appeals filed by the Insurance Company being S.B. Civil Misc. Appeal Nos. 449/99, 452/99 and 453/99 are to be allowed and that of two filed by the owner being S.B. Civil Misc. Appeal No. 245/98 and 775/99 are to be dismissed.

(14). However, for the reason that the case relates to the year 1989 and very nominal amount has been ordered to be paid by the insurance company which amount stands already paid and despite the fact that the appeals of the insurance company are being allowed and those of the owner are being dismissed, in the circumslances of the case, I feel it appropriate in giving a direction to the effect that the amount if already stands paid by the insurance company shall not be recovered from the claimants.

(15). In regard to the appeal filed by the claimant for enhancement, in my opinion, on the evidence as led by the parties before the Tribunal, the Tribunal had rightly assessed the dependency income and also has applied the correct multiplier. No interference is called for. In the circumstances the appeal No. 49/98 for enhancement is also dismissed.

(16). Consequently, S.B. Civil Misc. Appeal Nos. 449/99, 452/99 and 453/99 are allowed and S.B. Civil Misc. Appeal No. 245/98, 775/99 and 49/98 are dismissed. Costs are made easy in all the appeals.