SMTGANGUBAI, W/ 0 IIANAMANP LIMAKAR v. M/S. UNIFED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE SINDHANUR

4 SRI I’qAS 5/0 IIANAMANT LIMAKAR, AGF. 20 YEARS, 511 DELl. XI C 1ANAKAL1 YEXIS 0 ( Sfl’DFN IMAFNR ) Mt OJiLBIHAL, ALL L/ 19 MUDDEHIHAI DISIrCICT: [3IJAPt: F?. . .APPELI ANTS IBYSI IIIARSHN \RDIIAN MALHAI’I, LDV) 4 4 AND:.

1. SR1KANTAGOUDA, 8/0 MAHANTAGOUDA, AGED:MAJOR, 0CC: BUSINESS, R/O HULIGERI, TQ: KUSTAGI, DISTRICT: KOPPAL.

2. MOHIBOOB, 8/0 MALLIKASAB SOMALAPUR, AGE: MAJOR, 0CC: MAROL, TQ: HUNGUND, DIST: BAGALKOT

3. THE BRANCH MANAGER, THE UNITED INDIA INSURANCE CO, LTD., BUS STAND ROAD, SINDHANUR, TQ: SINDANUR, DIST: RAICHUR. (By Sri. R.V.NADAGOUDA, ADV.) ... RESPONDENTS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 1O.72OO7 PASSED IN MVC NO.54/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND MACT, MUDDEBIHAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U DOME NT Whether the “Idol of (lanesha” carried in the Trailer attached to Tractor comes within the definition “goods” arid whether the insurance Company is liable to c cover the risk of owner or authorise.d representative of the owner of the goods having regard to the provisions contained nnder Section 147 of the MV Act are the two questions that call for an answer in these appeals.

2. MFA 13005/07 is preferred by the United insurance Company questioning the liabilit fastened on it the MACT and the connected appeal MFA No.12455/07 is preferred by the claimants seeking enhancement of compensation. As both the appeals arise out of one and the same judgment, they are being disposed of by this common judgment.

3. The claimants before the MACI’ were the wife and children of the deceased Hanamant Limakar and their case was that on 26.8.01 the said Hanamant Limakar was travelling in the tractor-cum-4railer bearing registration No,KA 37/T 3353 —3354 along with few others in the capacity of representative of the owner of the goods in the sense, he was travelling canying the Qanesha Idol in the trailer for immersion of the said idol 6 in Krishna river. On the way, the rear portion of the trailer came in contact with the Hanamant Limakar and this was on account of rash and negligent driving of the tractor-eum4railer immediately following lijuries sustal..‘ned Limakar died. The claimants therefore sought compensation on the said ground.

4. Before the Tribunal, the 3rd respondent-P Insurance Company who is the appellant herein in MFA No.13005/07 contested the matter by taking up the stand that the appellantJnsuranee Ccmpany is not liable to pay the compensation because the deceased traveller was a passenger in the trailer and as such no liability can be fastened on the Insurance Company. The owner of the tractor-cuintrailor also contested the said claim petition by denying the income of deceased and stated that in the event of liability the smme may be passed on to the insurance Company. 7

5. The Tribunal, after appreciating the evidence on record let in by the parties held that, the idol of Ganesha will have to be treated as goods and as the deceased was transporting the said Ganesha idol for disbursing in the Krishna river and as the tractor-cum trailer was used for transporting the goods and as the policy was also in force, the Insurance Company is liable and accordingly put the liability on the Insurance Company by awarding Rs.3,67,000/- as compensation to the claimants,

6. Learned counsel for the Insurance Company Sri R.VNadagouda, argued Insurance Company is not liable to cover the risk of the deceased travelled with the Canesha tractor-curn -trailer and in this regard the first point urged is that the Seeretmy of the Ganapathi Committee cannot be considered as the owner of idol of Ganesha and therefore the deceased Hanainant Limakar could not have been construed as representing the owner of . — -4 8 the goods. Secondly, it is not possible to think that the Secretary is the owner of the Ganesha idol as the said idol was installed after collecting donation from the devotees and it is contended that three or four persons who travelled in the trailer along with the Ganesha idol could not have been treated as persons representing the owner of the goods.

7. The next contention put forward is that by virtue of proviso of Section 147 of the MV Act, Insurance Company is not required to cover the risk of the persons carried in a goods carriage and in this regard the definition of “goods carriage” as found under Section 2(14) of the New Act was also referred. Apart from these provisions, learned counsel also placed reliance on the decisions of the Apex Court in the case of ORIENTAL INSURANCE CO. LTD. -VS DEVIREDDY KONDA REDDY AND OTHERS (AIR 2003 SC 1009), NATIONAL INSURANCE CO. LTD. -VS AJ1T KUMAR AND OTHERS (AIR 2003 SC 3093), NEW INDIA ASSURANCE 9 CO. LTD, -vs -ASHA RAN1AF’ID OTHERS (AIR 2003 SC 607), and UNITED INDIA INSURANCE COMPAWY LIMITED -vs- SERJERAO AND OTHERS (2007(8) SC 25). Relying on the law laid down in the aforementioned cases, it is contended that, in the MV Act of 1988, the definition of a “goods vehicle” does not find a place. But, on the other hand, the said Act only defines what is a “goods carriage” and Section 2(14) of the New Act makes it clear that a ‘goods carriage’ is meant solely for the purpose of carrying goods. Therefore, the question of insurance policy covering the risk of the deceased in the instant case does not arise. Particular reference was made to the law laid down in ASHARANFs case to contend that in respect of the owner of the goods or his authorised representative carried in the goods vehicle, the Insurance Company cannot be made liable to pay compensation. On these grounds, learned counsel sought for the appeal being allowed by exonerating the Insurance Company from liability. 4 10

8. On the other hand, learned counsel Sri Harshavardhan Malipatil claimants contended that a careful reading of Section 147 of the New Act Le, 1988 Act will make it clear that the policy of insurance must cover the risk of the owner of the goods or his authorised representative carried in the vehicle and as far as proviso is concerned the submission made is that the said proviso wifi have to be read keeping in view the employee of the insured and sub-section ‘C” of the proviso therefore will have to be read as to mean that policy shall not. require to cover an employee if he is carried in a goods carriage.

9. In the instant case, the deceased was not an employee but he was authorised representative of the owner of the goods and therefore the Insurance Company cannot escape its liability. In this connection, reliance was placed on a decision of this Court (2007 (5) AIR KAR 91 (NEW INDIA ASSURANCE COMPANY LTD, -vs- K.RAMESH & OTHERS) and also 11 another decision in the case of UNITED INDIA INSURANCE CO., LTD., -v& SURESH KK. AND ANOTEHR (AIR 2008 Sc 2871). As far as the deceased being the representative of the owner of the goods is concerned, my attention was drawn to the evidence of PW3 the Secretary of the Ganapathi Utsav Committee. Therefore, is contended that the finding of Tribunal putting liabifily on the insura..ee Company s just and proper.

10. Learned Counsel Sri Basavaraj R. Math, appearing for the respondent No.&owner of the tractorS cum4railcr (MFA 13005/07) also supplemented the above argument of the learned counsel for the claimants by submilling that the provisions of law contained under Section 147(l)(b)(i) makes it clear that the policy is required to cover the liability towards the owner of the goods or his authorised represen.tative carried in the vehicle. It is also contended that the Secretary of the Ganapathi Utsav Committee has gven evidence stating 12 that the Committee had installed the Ganapathi Idol and therefore for all practical purpose the Utsav Committee wffl have to be treated as the owner of the Ganapathi Idol and the Secretary of the said Committee has authorised the deceased and the few others to travel in the tractor-cum4railer for transporting the Ganapathi Idol for being immersed in Krishna river. As far as the Ganapathi Idol coming within the meaning of goods is concerned, it is argued that the definition of woods imder the MV Act covers even the Ganapathi IdoL Therefore, the rulings referred to by the learned counsel for the Insurance Company will have to be understood in the context of the provision of law contained in the MV Act prior to 1994 amendment and those decisions did not take care of situation subsequent to 1994 amendment and moreover those decisions are rendered in connection with the issue concerning a person travelling as a passenger in a goods vehicle. As far as Insurance policy is concerned, it is contended that the when the policy has been admitted by the parties it 13 covers both the tractor as well as the trailer. As such, the Insurance Company cannot escape the liability.

11. In the light of the contentions put forth as above, I proceed to answer two questions that have arisen for consideration.

12. As far as the Ganapathi Idol is concerned, whether it can be treated as goods or not can be gathered from looking at the definition of goods in Motor Vehicles Act, 1988. The definition of goods defined under Subsection (13) of Section 2 of the Act, reads as includes livestock, 2(13) goods’ anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in. a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle; 14

13. It is therefore clear from the above definition that the term goods includes anything carried in the vehicle except excluded definition, Ganapathi idol does not fall within any one of the items which have been excluded in the above definition. As such no difficulty arises in answering the said question by holding that Ganapathi idol therefore wifi have to be deemed to fall within the expression ‘goods’.

14. As far as the liability of the Insurance Company is concerned, before I refer to the decisions cited by learned counsel for the Insurance Company, it is proper to take a look at Section 147 of the Motor Vehicles Act, 1988. The said Section reads as under:

147. Requirements of policies and limits of liabfflty.-(l) xxxx (a) xxx (b) xxx (1) (II) Provided that a policy shall not be required 2< 15 (1) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodil injury sustained by such an employee arising out of and in the course of his ernplovmerit other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.

15. A careful reading of the above section will make it clear that the policy shall not be required to covej’ the liability that are mentioned in proviso (i) a, b, 16 c & (ii). In other words, the said proviso focuses mainly on the employee.

16. Flowever, the first part of Section 147 makes it clear that the policy in question is required to cover the risk of the persons specified in the policy and the said coverage in respect of any liability which may be rncurred by the insured in respect of the death of or bodily injury to any person including the owner of the goods oi his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.

17. Thus, the said provision namely 147(l)(b) requires coverage of even the owner of the good-s or his authorized representative. In view of the amendment brought to the expression ‘lnju to any person’ w.e f,

14. 11. 1994, it is clear that the parliament intended to enlarge the expression any person or to include even the owner of the goods or his authonst d representative. In 4 17 other words, Section 95 of the Motor Vehicles Act, 1939 did not include within the ainbit of the expression any person, the owner of the goods or his authorised representative. But by virtue of the amendment effected on 14.11.1994, the expression any person was also explained to include even the owner of the goods or his authorised representative.

18. As such when the statute itself makes it clear in Section 147(1)(b) that the policy of insurance must also take care of the risk towards the owner of the goods or his authorised representative, is not permissible to accept the contentions of the learned counsel for the Insurance Company that the owner of the goods or his authorised representative cannot be covered under the policy.

19. No doubt, the definition of ‘goods vehicle’ does not find place in the 1988 Act. Bnt only goods carnage has been are defined under Section 2(14). At the same time, by virtue of the amendment effected to 18 Section 147(13(b) by including the owner of the goods or his authorised representative, the legislature did not intend to exclude such persons as well from being covered by a policy of insurance.

20. The above reasoning is also supported by the very decision referred to by the learned counsel for the Insurance Company. In the case of NEW INDIA INSURANCE COMPANY Vs. ASHARANI the Apex Court was seized with the position of law prior to 1994 amendment, Since Section 147 as it stood in the old act namely Section 95 of the old act did not provide for including owner of the goods or his authorised representative, the Apex Court ruled that the insured will not he liable or paying compensation to the owner of the goods or his authorised representative being carried in a goods vehicle. At the same time, the Apex Court also considered the position as it stood prior to the amendment in 1994 and post 1994 amendment and has held thus; 19 expression “If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46, by ‘injuiy to any person’ in the original Act stood substituted by the expression ‘injury to any person including owner of the goods or his authorised representative carried in the vehicle’ the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expression ‘to any person’ it will not cover either the owenr of the goods or his authorised representtive canied in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of ampilficatin and clarification of an irtherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands 20 amended owner of subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted provisions referred to earlier, it is difficult for us to construe that the expression ‘including the goods or his authorised representative carried in the vehicle’ which was added to the preexisted expression ‘injuly to any person’ is either clarificatory or amplification of the preexisting statute, eotherjdiearlmongtes ree of Section 147 and makin it jncjedinaoyehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injuiy.

21. Thus, it is clear that the legislature wanted to bring within the purview of Section 147 (making it compulsory for the insurer to insure even in case of goods vehicle) the owner of the goods or his authorised 21 representative being carried in the vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers bodily injury.

22. As far as the change brought about by excluding definition of goods vehicle in the new act and replacing the same with a definition goods carriage in Section 2(14) of the new act is concerned by the said change, the legislature made its intention clear that a passenger carried in a goods vehicle is not liable to be covered by the policy in question. In other words, the risk of the passenger in a goods vehicle is not to be covered by the insurance company. In the case on hand, we are not concerned with the case where the deceased was travelling as a gratuitous passenger. But on the other hand, it is specific case of the claimants deceased travelled authorised representative of the owner of the goods and risk of such a person has to be compulsorily covered by the policy of insurance by virtue of Section 147(l)(b)(i). As 22 such the decision referred to by the learned counsel for the Insurance Company also cannot be pressed into service.

23. Having regard to the facts of the case before us and also as regards the law laid down b the Apex Court in Asharani’s case itself, this Court has also taken the very same view in the case reported in 2007(5) AIR KAR R 91 IN THE CASE OF NEW INDIA ASSURANCE COMPANY LTD. Vs. KRAMESH & ORS. and has held that n respect of a person travelling in a goods vehicle, unless it is establish that the said person traveled as a owner of the goods or comes within any of the categories mentioned in Section i47( l)(b)(i), the question of making the Insurance Company liable, will not arise.

24. As far as the decision reported in 2009 Kant M.A.C. 406 (SC)) is concerned, the said decision was rendered in respect of a goods vehicle where the facts concerned the question of liabilit Insurance Company towards gratuitous passengers. In the case 23 before us the deceased did not travel as gratuitous passenger but as authorised representative of the owner of the goods.

25. As far as the contentions put forward in respect of the owner of the goods is concerned, though it was argued by the learned counsel for the Insurance Company that the evidence is not clear as to who was the owner of Ganapathi Idol, therefore it cannot be said that the deceased traveled as authorised representative of the owner, having gone through the evidence on record, it is noticed that PW.3 the Secretary of the Qanesh Utsav Committee has deposed in his evidence that the committee had installed Ganesha idol and PW3 had authorised the deceased and few others to travel with the Qanesh Idol in the tractor-cum4railor for immersing the idol established from the evidence of PW, 3 that the deceased traveled as an authorised rcprcscntative of the owner of the Ganapathi in river water. IdoL As such, the contentions put Thus, 24 forward by the learned counsel the Insurance Company does not carry enough force behind it.

26. In the light of the aforesaid reasons, liability fastened on the Insurance Company by the Tribunal cannot be termed as erroneous in law, more so because the Insurance Company has produced Ex,R1, the said policy covers both the tractor as well as trailor and policy was also found to be in force as on the date of the accident. Thus, the question of Company escaping its liability does not arise, Insurance

27. As far as quantum of compensation is concerned, the claimants have also preferred the appeal in. this regard in MFA No.12455/2007 and having gone through the record of this case, I find that the Tribunal was justified in taking the income of the deceased Rs.3,000/ per month and consequently compensation awarded also does not require any enhancement. 25 In the result, appeal preferred by the Insurance Company is dismissod and so also the claimants appeal seeking enhancement. The amount in deposit be transferred to the MACT, Sal 3UDGE T1/VN