Accident claim - sec. 147 - Gratuitous passenger not included except goods owner and his authorised agent in good carrier and as such the question of directing insurance company to pay and recover compensation does not arise since the satpal singh case was overruled.- Their lordships of High court dismissed the appeal and confirmed the lower court order against the owner of the vehicle only =
Whether the Gratuitous passenger is entitled for compensation against insurance company ?
In New India Assurance Company Limited vs. Asha Rani and others (1 Supra)
(decided on 03.12.2002), the Supreme Court had an occasion to consider the
correctness of its earlier decision rendered in Satpal Singh's case (7 Supra).
In this decision, it was held that the judgment in Satpal Singh's case (7 Supra)
was not correct and accordingly overruled. A number of reasons were quoted to
come to the said conclusion. Precisely, in this decision the judgment of the
Satpal Singh's case (7 Supra) was found fault on the ground that the said
judgment went on a wrong premise that the phrase "any person" used in Section
147(1)(b)(i) of Motor Vehicles Act includes gratuitous passengers also but that
is not so and the meaning of the words "any person" must be attributed to "a
third party".
Thus the decision in Satpal Singh's case (7 Supra) was overruled.
d) Subsequently, in Oriental Insurance Company Limited vs. Devireddy Konda
Reddy and others8 (decided on 24.01.2003), the Supreme Court again considered
the same issue.
Relying on Asha Rani's case (1 Supra), the Supreme Court
reiterated that the provisions of Motor Vehicles Act, 1988 do not enjoin any
statutory liability on the owner of a vehicle to get his vehicle insured for any
passenger travelling in a goods carriage and the insurer would have no liability
therefore.
e) The next in the series is the decision in Baljit Kaur's case (decided on
06.01.2004). In that case the Supreme Court was considering the question as to
whether an insurance policy issued in respect of goods vehicle would cover
gratuitous passengers in the light of Section 147 of M.V. Act (Amendment Act
1994 w.e.f. 14.11.1994).
Brief facts of the case are that the victim who was
returning in a truck from a marriage ceremony on 19.02.1999 died as a result of
rash and negligent driving by the driver of the truck. The crime vehicle no
doubt was insured with insurance company. The Claims Tribunal relying on
Satpal Singh's case (7 Supra) fastened liability on insurance company despite
its protest that the deceased was a gratuitous passenger in a goods vehicle and
it had no liability. The High Court upheld the verdict of Tribunal. The matter
went up to Supreme Court. It was brought to the notice of the respondents/
claimants about overruling of Satpal Singh's case (7 Supra) subsequently in Asha
Rani's case (1 Supra) which was followed in Devireddy Kondareddy's case (8
Supra). However their argument was that those two cases were decided with
respect to the position prevailing prior to the amendment of Section 147 of
M.V.Act (Amendment Act, 1994) and as such the effect of Legislative Amendment in
1994 was not in question in the above cases. Whereas the accident in their case
(Baljit Kaur's case) was occurred subsequent to the Amendment of M.V. Act in
1994 and so the liability of insurance company has to be decided afresh in terms
of the Amendment Act, 1994. Thus the Supreme Court again considered the
liability of insurance company in respect of a gratuitous passenger in a goods
vehicle in terms of Amended Act in 1994.
It was held thus:
"20. It is therefore, manifest that in spite of the amendment of 1994, the
effect of the provision contained in Section 147 with respect to persons other
than the owner of the goods or his authorized representative remains the same.
Although the owner of the goods or his authorized representative would now be
covered by the policy of insurance in respect of a goods vehicle, it was not the
intention of the legislature to provide for the liability of the insurer with
respect to passengers, especially gratuitous passengers, who were neither
contemplated at the time the contract of insurance was entered into, nor any
premium was paid to the extent of the benefit of insurance to such category of
people.
21. The upshot of the aforementioned discussions is that instead and in place of
the insurer, the owner of the vehicle shall be liable to satisfy the decree."
f) So the Supreme Court observed that despite the amendment of M.V. Act w.e.f
14.11.1994, the position of gratuitous passengers with reference to a goods
vehicle has not been changed and insurance company is not liable to bear their
responsibility and owner alone shall be liable.
It may be noted that apart from
the above observation the Supreme Court made another observation also directing
insurance company to pay and recover the compensation. About the applicability
of the said observation to the instant appeal will be discussed in the point
no.2 infra.
g) The ratio in Baljit Kaur's case (2 Supra) was followed subsequently in the
cases of National Insurance Company Limited vs. Bommithi Subbhayamma and others9
and National Insurance Company Limited vs. Prema Devi and others10 and held that
insurance company was not responsible in respect of the gratuitous passengers.
h) So as can be seen above, the Supreme Court has consistently reinforced the
law and held that the liability of a gratuitous/unauthorized passenger in a
goods vehicle will not be covered under Section 147 of M.V. Act either prior or
subsequent to its amendment w.e.f 1994.
12) So point No.1 is concerned, deceased was only a gratuitous passenger with
reference to crime vehicle and his risk is not covered under the terms of the
policy.
Whether as per the Baljit Kaur's case ,the insurance company may be
directed to pay compensation and recover from the insured in case of Gratuitous passager too?
In my considered view, this observation made on equitable grounds applies
only to limited cases i.e, those cases where, basing on Satpal Singh's case (7
Supra) which was by then a law, if compensation was granted to a gratuitous
passenger in a goods vehicle against insurance company and the appeal carried
out by the insurance company is allowed basing on Asha Rani's case (1 Supra), in
such circumstances though insurance company is exonerated by virtue of Asha
Rani's case (1 Supra), still it can be directed to pay compensation at first and
recover the same from the owner/insured. Except to those limited cases, pay
and recover ordered in Baljit Kaur's case (2 Supra) will not apply to other
cases, muchless to the cases where a Tribunal ignoring Asha Rani's case (1
Supra) fastened liability on insurance company basing on Satpal Singh's case (7
Supra). Since in the instant case by the date of award passed by the Tribunal,
Asha Rani's decision (1 Supra) was already given and the Tribunal did not rely
on Satpal Singh's decision (7 Supra), the question of directing insurance
company to pay and recover compensation does not arise. Hence the contention of
appellant is negatived.
In view of the above discussion, I find no merits in the appeal and
accordingly, the MACMA is dismissed by confirming the award dated 31.03.2004 in
M.V.O.P 299 of 1999 passed by the Tribunal. No order as to costs.
2014 (March. Part ) judis.nic.in/judis_andhra/filename=10959
