1. By way of this appeal, the appellants-original opponent No.2 has challenged the judgement and award dated 28.04.2004, passed by the Motor Accident Claims Tribunal(Auxi. ii), Amreli, in M.A.C.P. No.296 of 2002, whereby the tribunal has awarded compensation in the sum of Rs.1,13,000/- to the claimant with interest at the rate of 9% from the date of filing of the petition till its realization.
2. The brief facts leading to filing of this appeal are that on 05.05.2002, one Virabhai Kanabhai was travelling in a goods Rickshaw being registration No. GJ-14-4428 with his goods along with other co- passengers. The driver of the said Rickshaw was driving his vehicle rashly and negligently, therefore, he lost control over his vehicle and the said Truck turned turtle. As a result of the said accident, several passengers sustained grievous injuries, and due to which Virabhai sustained grievous injuries and due to which he died. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No. 296 of 2002 before the Tribunal for compensation. The learned tribunal after hearing learned advocates for both the parties and after recording the evidence decided the claim petition and passed the award as stated hereinabove against which the present appeal is preferred by the appellants- original opponent No.2.
3. Learned counsel for the appellant-Insurance Company mainly contended that the deceased and injured persons were travelling in a 'goods vehicle' at the time of accident and therefore, the appellant- Insurance Company cannot be saddled with the liability of satisfying the claim. In support of his submission, learned counsel has placed reliance upon a decision of the Apex Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others, (2008) 1 S.C.C. 423 [2008 ACJ 268]
4. Learned advocate for the respondents has supported in impugned judgement and award of the Tribunal and submitted that the Tribunal after considering the evidence on record, has passed the impugned award, therefore, no interference is called for by this Court.
5. Heard learned counsel for the respective parties and perused the decision of the Apex Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others(supra), wherein, in Paras 8 to 11, it has been held as under;
8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative.
9. Correctness of the decision in Satpal Singh (supra) came up for consideration before a three-Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani and others [(2003) 2 SCC 223].
10. In Asha Rani (supra), having regard to various definitions involving the legal question, it was held:
"23. The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd., in this case must be considered keeping that aspect in view. Section2(35) of the 1988 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of "goods vehicle" in the 1939 Act and "goods carriage" in the 1988 Act is significant. By reason of the change in the definitions of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words "in addition to passengers" occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that "goods carriage" would mean a motor vehicle constructed or adapted for use "solely for the carriage of goods". Carrying of passengers in a "goods carriage", thus, is not contemplated under the 1988 Act.
24. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to clause (ii) of the proviso appended to Section 95 of the 1939 Act. The decision of this Court in Mallawwa case must be held to have been rendered having regard to the aforementioned provisions.
25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a "goods carriage."
26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.
27. Furthermore, sub-clause (i) of clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of 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, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
28. An owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Co. v. Satpal Singh, is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid."
11. The effect of 1994 amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur and Ors. [(2004) 2 SCC 1], wherein this court following Asha Rani (supra) opined that the words "injury to any person" would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. [(2005) 12 SCC 243] wherein upon taking into consideration a large number of decisions, the said view was reiterated.
6. It appears from the evidence on record, more particularly, from the FIR registered in connection with the accident in question that at the relevant point of time the deceased and injured persons were travelling in the goods rickshaw. The accident in question has taken place on 5.5.2002 and at the time of accident in all 21 passengers were travelling in the vehicle.
Therefore, in view of the provisions of the Policy, it was breach of conditions of goods vehicle. Considering the facts of the case and in view of the principle rendered in Cholleti Bharatamma case (supra), the Insurance Company is required to be exonerated from the liability of satisfying the claim.
7. For the foregoing reasons, the appeal is allowed. The impugned judgment and award is quashed and set aside only qua the extent of imposition of liability on the appellant-Insurance Company to make payment of compensation. The rest of the impugned award remains unaltered. It is, however, observed that if the original claimants have already withdrawn the amount of compensation, then the same shall not be recovered from the original claimants but, shall be recovered from the owner of the offending vehicle and if the amount is still lying with the Tribunal, then the same shall be refunded to the appellant-Insurance Company and in which case, the original claimants can recover the amount from the owner of the offending vehicle. The appeal stands disposed of accordingly. No order as to costs.
pawan [K. S. JHAVERI, J.]