1. Heard Sri B.C. Nayak, learned counsel for appellant-insurance company and Sri Amit Kumar Pandey, learned counsel for respondent-claimant.
2. This appeal has been filed by the insurance company being aggrieved of award dated 28.05.1994 passed by learned X Additional District Judge, Kanpur Nagar in Claim Case No. 70 of 1992 (Smt. Sarojini and Others vs. Neelam Jain and Others), on a short ground that claimants are seeking compensation on account of death of Late Indra Narain Mishra, who was travelling in the offending truck, insured with the appellant, as a gratuitous passenger, therefore, for an accident, which took place on 15.09.1991 prior to amendment in Section 147 of the Motor Vehicles Act in the year 1994, cannot be deemed to be even the owner of the goods and compensated, inasmuch as in case of New India Assurance Co. Ltd vs. Asha Rani and Others; 2003 (1) TAC 1 (SC), it has been specifically held in para-9 that assumption drawn in case of New India Assurance Co. Ltd vs. Satpal Singh and Others, (2000) 1 SCC 237, that the provisions of Section 95(1) of the Motor Vehicles Act, 1939 are identical to Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment was not justified, inasmuch as prior to the amendment of 1994, it was not necessary for the insurer to insure the owner of the goods or his authorized representative being carried on in a goods vehicle.
3. In this backdrop, it is held that judgment of the Supreme Court in Satpal's case (supra) has not been correctly decided and accordingly, impugned judgments of tribunal as well as that of the High Court were set aside and appeals were allowed. In the present case, I have perused the policy issued in favour of the truck, in which there is specific mention of the fact that policy does not cover use of the vehicle for carrying passengers in the vehicle except 'employees' (other than the driver) not exceeding six in numbers, coming under the purview of Workmen's Compensation Act, 1923. In view of such exclusion, it is apparent that this aspect was not considered by learned tribunal while deciding the claim petition.
4. Sri Amit Kumar Pandey supports the award and submits that accident took place in 1991 and for the last 30 years, no amount has been disbursed in favour of the claimants.
5. After hearing learned counsel for the parties and going through the record, it is apparent that as per the ratio of the judgment rendered in case of Asha Rani and Others (supra), learned tribunal should have exonerated the insurance company, as it had not undertaken the risk of passengers travelling in the truck either as a gratuitous passenger or as an owner of the goods, kept in the truck. Thus, passengers transported in violation of the terms and conditions of the policy, being not covered for which insurance company needs to be exonerated.
6. However, placing reliance on the judgment of Hon'ble Supreme Court in case of Pappuu and Others vs. Vinod Kumar Lamba and Another; (2018) 3 SCC 208, and looking to the fact that matter is about 30 years old, claimants are poor persons with meager resources, it is directed that insurance company shall satisfy the award and shall have a right of recovery against the owner/driver of the offending vehicle.
7. In above terms, appeal is allowed in part and is disposed off.
Order Date :- 19.2.2021 Vikram/-