Mr. M. R. Deshmukh Advocate for v. B. Patil h
Facts
1 FA 1399, 1402, 1404,1405.04.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.1399 OF 2004The New India Assurance Company Ltdhaving it’s Head and Registered office atNew India Assurance Building, 87, M.G.Road,Fort, Mumbai-1 and having Branch office atParbhani, Divisional office at Aurangabad. Appellant (Ori. Respondent No.2)Versus1. Sushilabai w/o Manohar Kulkarni,Age : 32 years, Occ: Business, R/o Charthana, Tq :- Jintur, Dist :- Parbhani(Ori.Claimant)2. Laxman Kashram Gajmal,Age : 58 years, Occ: Business R/o Charthana, Tq :- Jintur, Dist :- Parbhani (Ori.Resp. No. 2) Respondents…Mr. M. R. Deshmukh, Advocate for appellant/s. Mr. V.B.Patil h/f Mr. P. K. Joshi Advocate for respondent no. 1 Respondent no. 2 served.….FIRST APPEAL NO. 1402 OF 2004The New India Assurance Company Ltdhaving its Head and Registered office atNew India Assurance Building, 87,M.G.Road,Fort, Mumbai-1 and having Branch office atParbhani, Divisional office at Aurangabad.Appellant. (Ori.Respondent No.2)Versus 2 FA 1399, 1402, 1404,1405.04.odt1. Gunaji s/o Kashinath Khairmude,Age : 40 years, Occ: Business, R/o Charthana, Tq :- Jintur, Dist :- Parbhani(Ori. Claimant)2. Laxman Kashram Gajmal, Age : 58 years, Occ : Business R/o Charthana, Tq :- Jintur, Dist :- Parbhani (Ori. Resp. No. 2) Respondents….Mr. M. R. Deshmukh Advocate for appellant. Mr. V. B. Patil h/f Mr. P. K. Joshi Advocate for respondent no. 1 Respondent no. 2 served…..FIRST APPEAL NO.1404 OF 2004The New India Assurance Company Ltdhaving it’s Head and Registered office atNew India Assurance Building, 87,M.G.Road,Fort, Mumbai-1 and having Branch office atParbhani, Divisional office at Aurangabad.Appellant. (Ori. Respondent No.2)Versus1. Motichand s/o Gulabchand Wanare, Age : 50 years, Occ: Business, R/o Charthana, Tq :- Jintur, Dist :- Parbhani(Ori. Claimant)2. Laxman Kashram Gajmal, Age : 58 years, Occ: Business R/o Charthana, Tq :- Jintur, Dist :- Parbhani (Ori. Resp. No. 2) Respondents….Mr. M. R. Deshmukh, Advocate for appellant. Mr. V. B. Patil h/f Mr. P. K. Joshi Advocate for respondent no. 1 Respondent no. 2 served… 3 FA 1399, 1402, 1404,1405.04.odtFIRST APPEAL NO. 1405 OF 2004The New India Assurance Company Ltdhaving it’s Head and Registered office atNew India Assurance Building, 87,M.G.Road,Fort, Mumbai-1 and having Branch office atParbhani, Divisional office at Aurangabad.Appeallnt. (Ori. Respondent No.2)Versus1. Bashir Khan s/o SherKhan Pathan,Age : 30 years, Occ : Business,R/o Charthana, Tq :- Jintur, Dist :- Parbhani(Ori. Claimant)2. Laxman Kashram Gajmal, Age : 58 years, Occ: Business R/o Charthana, Tq :- Jintur, Dist :- Parbhani (Ori. Resp. No. 2) Respondents…Mr. M. R. Deshmukh, Advocate for appellant. Mr. V.B. Patil h/f Mr. P. K. Joshi Advocate for respondent no. 1 Respondent no. 2 served.…..CORAM : S.G. CHAPALGAONKAR, J.Reserved on : 13th February, 2024.Pronounced on : 21st February, 2024.COMMON JUDGMENT :-1.The appellants/original respondent no.2-Insurerapproaches this Court under section 173 of the Motor VehiclesAct, thereby impugning the common judgment dated 4thFebruary, 2003 in MACP Nos.193 of 1998, 195 of 1998, 218 of1998 and 231 of 1998. (For the sake of brevity, Partieshereinafter are referred to as per their original status). 4 FA 1399, 1402, 1404,1405.04.odt2.Respondents no.1/original claimants in respectiveclaim petitions had approached the Tribunal under section 166of the Motor Vehicles Act, 1988 thereby raising claim forcompensation towards injuries suffered in motor vehicularaccident dated 23.10.1996. The claimants contend that, on thefateful day, they were traveling in a Matador bearingregistration No.MH-22/355 from village Charthana to villageWaghi for attending the Bazar. Driver of Matador lost hiscontrol over the vehicle. Resultantly, it toppled in the vicinityof village Pimpri (khurd). The claimants who were occupyingseat in the matador suffered severe injuries. According to theclaimants, driver of the Matador was negligent. The offendingMatador was owned by respondent no.1. It was driven byrespondent no.2 (Now deleted) and insured with respondentno.3 (present appellant). As such, respondents are jointly andseverally liable to pay the compensation.3.The Claim was contested by the appellant-insurerby filing written statement on the ground of breach of termsand conditions of the insurance policy. The claimants recordedrespective evidence and relied upon the police papers.Insurance company recorded evidence of Mr. Takalkar, BranchManager of the company, who placed on record copy of theinsurance policy. The Tribunal, after hearing the parties,allowed the claim petition and directed respondent nos.1 to 3to jointly and severally pay compensation to the claimants asquantified in respective claims. Aggrieved by the commondecision of the Tribunal, insurer filed present group of appeals. 5 FA 1399, 1402, 1404,1405.04.odt4.Mr. M.R. Deshmukh, learned advocate appearingfor the appellant submits that admittedly, offending vehicle isregistered and insured as a ‘good carriage’ and not supposed tocarry any passenger. However, as discernible from the contentsof the FIR, spot panchnama, vehicle was predominantly usedfor carrying passengers. As many as 31 passengers wereoccupying the seat in offending Matador at the time of accidentand suffered injuries. The group of 15 appeals arising from thesame accident is before this Court. He would further inviteattention of this Court to the RTO particulars and copy of theinsurance policy, which is admitted in evidence to contend thatpermitted sitting capacity of the vehicle is only two includingthe driver and class of the Motor vehicle is specified as LCV,D.Van (Light Commercial Vehicle Delivery Van). He wouldtherefore submit that the Tribunal failed in grave error of lawwhile holding the insurer liable to pay the compensation to theclaimants.5.Per contra, learned advocate Mr. V.B. Patil h/f Mr.P. K. Joshi vehemently submits that all the persons occupyingseat in the vehicle at the time of the accident had loaded goodsof the business and proceeding to attend the Bazar at villageWaghi. There is no prohibition for transportation of owner ofgoods in the goods carriage. The amendment of 1994 insection 147 of the Motor Vehicle Act mandates statutory coverfor owner of the goods, being carried in the goods carriage.The Tribunal has rightly appreciated the aforesaid aspects andpassed an award holding the owner of the offending vehicle
Legal Reasoning
6 FA 1399, 1402, 1404,1405.04.odtand insurer jointly and severally liable to pay thecompensation.6.Although, the owner of the vehicle (respondentno.2) has been served with the notice of the appeal, failed tocause his appearance.7.Having considered the submissions advanced, thequestion that falls for consideration in the present appeals is asto “whether the claimants were travelling in goods carriage asa ‘gratuitous passenger’ or they would fall within the meaningof ‘owner of goods’ occupying seat in the goods vehicle so as toextend benefit of statutory cover in terms of section 147 of theMotor Vehicles Act?” To find out answer to the aforesaidcontroversy, it is necessary to delve into the pleadings andevidence that has been led before the Tribunal on behalf of therespective parties.8.The claimants have pleaded in the petition thatthey had boarded in the vehicle alongwith goods of businessfor the purpose of attending the bazar at village Waghi. Theclaimants have also deposed before the Tribunal in the sameline. However, no specifications as regards to the goods thosewere loaded and carried have been mentioned in the pleadingsso also the evidence. At this stage, reference can be given tothe definitions of goods as indicated in Sub-clause 13 ofSection 2, reads thus :-“Goods includes livestock and anything (otherthan equipment ordinarily used with thevehicle) carried by a vehicle except living 7 FA 1399, 1402, 1404,1405.04.odtpersons, but does not include luggage orpersonal effects carried in the motor car or ina trailer attached to a motor car or personalluggage of passengers travelling in thevehicle”.9.Looking to the definition of goods, it can beobserved that the personal luggage of persons cannot betreated as “Goods” within the meaning of Motor Vehicles Act.In the present case, the vehicle in question is a goods carriage,further, as can be noted from contents of registrationparticulars of the vehicle and insurance policy, it is crystal clearthat the vehicle in question is registered and insured as a goodscarriage. The definition of goods carriage is also specified.Sub-clause 14 of section 2 reads thus :-“Goods carriage means any motor vehicleconstructed or adopted for use solely for thecarriage of goods, or any motor vehicle not soconstructed for when used for carriage ofgoods.”10.The registration of the vehicle in question depictsthat it has been described as a Delivery Van [light goodscarriage delivery van] having carrying capacity of Two personsincluding the driver. From the very nature of the registrationof vehicle, it is a goods carriage and does not suppose to carryany passenger. Turning to the contents of the FIR and spotpanchnama, it can be seen that as many as 31 persons hadboarded in the vehicle at the time of the accident and theysuffered injuries. Fortunately, none of them was fatal innature. It is therefore clear that vehicle was usedpredominantly for carrying passengers. 8 FA 1399, 1402, 1404,1405.04.odt11.Although, claimants have pleaded that theyboarded in the vehicle as owner of the goods and sufferedinjuries while travelling in the capacity of owner of the goods,it can be gathered from contents of the FIR and spotpanchnama that vehicle was completely occupied by the crowdof 31 persons although having carrying capacity of only twopersons in the cabin, which includes the driver and at the mostcleaner or co-driver. There is no room to carry any otherperson. Further the spot panchanama nowhere depict that anygoods were found to be loaded in the vehicle or layingscattered at the place of accident. Apparently, when 31 personshad boarded in a light goods carriage, there cannot be anyspace for carriage of goods. Hence case of claimants that theywere traveling along with goods is not acceptable.12.If we look to the basic intent behind introductionof the amendment of 1994 in section 147 of the Motor VehiclesAct, it is evident that person who hires goods carriage fortransportation of his goods and occupy the vehicle along withhis goods is sought to be covered by incorporating the words as“owner of goods or his authorized representative carried in themotor vehicle” in original section. Therefore, if any personboarded in the vehicle with small baggage, for which hiring ofservices of goods carriage would not be required, such personcannot be termed as owner of goods or authorizedrepresentative of owner of goods for the purpose of bringinghim under the umbrella of statutory insurance cover intendedto be extended in view of the amendment of 1994. 9 FA 1399, 1402, 1404,1405.04.odt13.The effect of aforesaid amended provisions ofsection 147 of the Motor Vehicles Act introduced in 1994 hasbeen considered in great detail by the Supreme Court of Indiain case of New India Assurance Company Ltd. Vs. Asha Raniand others reported in (2003) 2 SCC 223, which is the decisionby the larger Bench constituted to resolve the controversyraised after pronouncement of Judgment in case of SatpalSingh, in which the view was expressed that after amendmentof 1994, any person traveling in vehicle would be coveredunder statutory scheme of compulsory insurance cover forthird parties. However, the larger Bench of the Supreme Courtof India while delivering the judgment in case of Asha Ranioverruled interpretation adopted in case of Satpal Singh(supra).14.The view taken in case of Asha Rani above hasbeen consistently followed till this date.15.Perusal of the reasoning adopted by the Tribunaldepict misconception/misinterpretation of the law laid downin case of Asha Rani. The Tribunal erroneously observed thatthe law laid down in case of Asha Rani cover cases prior toamendment of 1994 and not cases arising out of the accidentsafter 1996. The observations of the Tribunal are fallacious andliable to be discarded. In fact, reference in Asha Rani’s casewas divided in three parts and second part specifically dealswith position of law falling from amended provision of Section147 of the Motor Vehicles Act post 1994 amendment. 10 FA 1399, 1402, 1404,1405.04.odt16.Next submissions advanced on behalf of therespondents/original claimants is that, although the claimantsmay not fall within the meaning of third party, the insurer canbe directed to satisfy the award and recover the compensationamount from the owner of the vehicle. The aforesaidarguments cannot be accepted in facts of the present casewhen large number of passengers were carried in the goodscarriage. All such passengers cannot be treated as third partywithin the meaning of section 147 of the Motor Vehicles act. Assuch does not fit within the statutory umbrella of the insurancecover. Once insurance cover is not available to the victim ofthe accident, either under statutory scheme or by extendedinsurance contract, the insurer cannot be directed to satisfy theaward. The Mechanism of passing the award in the nature ofpay and recover has been evolved by the Supreme Court ofIndia for the cases where victim of the accident is compulsorycovered under the policy of insurance issued in terms ofsection 147 of Act, but owing to default in observance of termsof contract, insurer is entitled to avoid liability in terms ofdefense provided under section 149 of Motor Vehicles Act1988.17.Although, Supreme Court of India in cases of 1]Manuara Khatun and others Vs. Rajesh Kumar Singh andothers, reported in (2017) 4 SCC 796, 2]-Sanju P. Paul Vs.National Insurance Company reported 2012 ACJ 1852 and 3]Anu Bhanvara and others Vs. Iffco Tokio General InsuranceCompany Limited and others reported in (2020) 20 Supreme 11 FA 1399, 1402, 1404,1405.04.odtCourt Cases 632 directed the insurer to satisfy the award atfirst instances and recover the compensation amount from theinsured/owner of the vehicle, minute reading of suchjudgments would depict that such directions are given inexercise of plenary powers under Article 142 of theConstitution of India. So far as claims pertaining to largenumber of passengers carried in the goods carriages, there isconsistent view that insurer has no liability to pay thecompensation. As indicated above, a three Judge Bench of theSupreme Court of India in case of New India AssuranceCompany Ltd., Vs. Asha Rani and others reported in (2003) 2SCC 223 observed thus :-“in view of the change in relevant provisionsin the 1988 Act vis-a-vis 1939 Act we are ofthe opinion that meaning of words “anyperson” must be attributed having regard tocontext in which they have been used i.e. “athird party”. Keeping in view the provisionsof 1988 Act, we are of the view that theprovisions thereof do not enjoin anystatutory liability on the owner of the vehicleto get his vehicle insured for any passengertravelling in a goods vehicle, insured wouldnot be liable therefor. 18.In subsequent judgments, again a three JudgeBench of the Supreme Court in case of National InsuranceCompany Vs. V. Chinnamma and others reported in (2004) 8SCC 697 relying upon the judgment in case of Asha Rani,reiterated the aforesaid legal position. There is no deviationfrom aforesaid proposition of law till this date. Therefore, theimpugned award passed by the Tribunal to the extent it holdthe liability of insurer jointly and severally with the insured- 12 FA 1399, 1402, 1404,1405.04.odtowner of the vehicle cannot be sustained in law. Resultantly,the appeals succeed. Hence, following order.O R D E R i.First appeal nos.1399 of 2004, 1402 of2004, 1404 of 2004 and 1405 of 2004are hereby partly allowed.ii.The Judgment and award passed by theEx-officio Member, Motor AccidentClaims Tribunal, Parbhani dated 4thFebruary, 2003 in MACP Nos.193 of1998, 195 of 1998, 218 of 1998 and231 of 1998 are hereby quashed and setaside to the extent of theappellant/insurer.iii.Any amount deposited by the insurer inthis Court in pursuance of the impugnedaward be refunded.iv.First appeals are accordingly disposedoff. Pending civil applications, if any,also stand disposed off.v.Award be drawn up accordingly. Nocosts. ( S.G. CHAPALGAONKAR ) JUDGE.….aaa