(PRAYER: Civil Miscellaneous Appeal filed against the Judgment and Decree dated 04.01.2002 and 03.05.2002 passed in M.C.O.P.Nos.266/2001 and 904/2001 on the file of the Motor Accident Claims Tribunal, (Addl. Special Judge), Krishnagiri.)

Common Judgment

Being aggrieved with the award of compensation of Rs.4,81,973/- to the claimant in M.C.O.P.No.266/2001, filed for the death of Gopal; and Rs.94,000/- to the first Respondent Unnamalai for the injuries sustained by her, Insurance Company has preferred these appeals disputing its liability on the ground that the deceased and injured claimant have travelled as gratuitous passengers in the goods vehicle.

2. Briefly stated facts of the claimants as projected in the claim petitions are as follows :- On 04.03.2001, deceased Gopal and injured claimant Unnamalai travelled in a tempo 407 bearing Registration No.TN 29 B 4478 owned by the third respondent and insured with the appellant Insurance Company.

3. Deceased and injured claimant travelled from Radamanapalli Village to Vellichandai in a tempo along with the marriage things like cot, bureau, TV, rice bags etc. While they were proceeding in Hosur to Thalli Road due to rash and negligent driving of the driver of the said Tempo, in the curve road, tempo capsized on the road. In the accident, deceased Gopal sustained fatal injuries and he was taken to Government Hospital Hosur and he was referred to Karimangalam Hospital, Bangalore. In spite of intensive treatment, the deceased Gopal succumbed to injures on 14.03.2001. Injured Unnamalai [claimant in M.C.O.P.No. 904/2001] sustained grievous injuries in the left wrist region and multiple injuries all over the body.

4. A criminal case was also registered against the driver of the tempo in Cr.No.13/2001 under Section 279 and 337 IPC, alleging that the accident was due to rash and negligent driving of the lorry driver. Legal Representatives of the deceased Gopal filed M.C.O.P.No.266/2001 claiming compensation of Rs.10,00,000/-. Injured claimant Unnamalai filed M.C.O.P.No.904/2001 claiming compensation of Rs.3,00,000/-.

5. Opposing the claim, Insurance Company has filed counter stating that the Insurance Company is not liable to indemnify the third respondent as the insured and and his driver have deliberately violated the conditions of policy by carrying marriage party, in violation of permit and policy conditions. As there was violation of policy conditions, appellant Insurance Company is not liable to indemnify the insured. The Insurance Company has denied the averments that the deceased and injured claimant travelled in Tempo van along with the marriage things like cot, bureau, TV etc.

6. Before the Tribunal, in M.C.O.P.No.266/2007 wife of the deceased was examined as PW-1. Eye witness Murugan was examined as PW-2. Before the Tribunal in M.C.O.P.No.266/2007, Exs.A-1 to A-6 were marked. Assistant Administrative Officer of Insurance Company was examined as RW-1. In M.C.O.P.No.904/2001 injured claimant was examined as PW-1 and Dr.Elangovan was examined as PW-2. Exs.A-1 to A-4 were marked on the side of respondent. Assistant Administrative Officer was examined as RW-1 and insurance policy was marked as Ex.R-1.

7. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of the lorry driver.

8. Before the Tribunal, appellant Insurance Company had taken a definite plea that the tempo van being a commercial goods vehicle, it could only be used as a goods vehicle. Since the same was used for carrying passengers/marriage party, insurer was not responsible to indemnify any award and pay any amount to the claimants. The Tribunal rejected this plea and held that in view of the Supreme Court Judgment in New India Assurance Co., v. Satpal Singh [2000 ACJ 1 (SC)], passenger travelling in a goods vehicle gratuitously was also entitled to claim compensation, which was to be paid by the insurer.

9. Claimants have alleged that deceased Gopal and injured claimant Unnamalai have travelled in the tempo van along with the marriage goods like cot, TV and rice bags. Case of the claimants is that the deceased and the injured claimant travelled along with goods is falsified by the averments in the recitals in Ex.A-1 FIR. Case was registered against the tempo van driver in Cr.No.23/2001 under Section 279 and 337 IPC, on the basis of complaint lodged by one Gopi. It is clear from the recitals in FIR that on 04.03.2001, a marriage party hired 407 tempo bearing Registration No.TN 29 B 4478 and went to Radamanapalli and were taken back to the village and while so returning, the van capsized.

10. We may usefully refer to the recitals in FIR which read as under :-

",d;W 4/3/2001k; njjp bghd;D khg;gps;isia kW miHg;gpw;F v;f tPl;ow;F Tl;o tUtjw;fhf fhiy bts;sp re;ijapy; 407 blk;ngh TN 29 B 4478 I thliff;F ngrp v;f cwtpdh;fSld; g[wg;gl;L uhrkhdgs;sp brd;W bghd;D khg;gps;isia Tl;of; bfhz;L CUf;F nkw;bfhz;l blk;nghtpy; jpUk;gp te;J bfhz;oUe;njhk;/ blk;nghit mjpf ntfkhf Xl;o te;j oiuth; jdp nuhl;oy; me;jptho brf;ngh!;l; mUnf xU tistpy; ntfkhf jpUk;g[k; nghJ blk;ngh ftpHe;J tpl;lJ/ mg;nghJ neuk; khiy Rkhh; 5/30 kzp ,Uf;Fk;/ ,e;j tpgj;jpy; vdf;F fhak; ,y;iy/ oiuth; cs;gl xU rpyUf;F fhak; Vw;gl;Ls;sJ".

From the above recitals, it is evident that the deceased and injured claimant Unnamalai and others travelled along with the marriage party. Excepting the interested testimony of the claimants, there is no other material to show that the deceased Gopal and injured claimant Unnamalai travelled in the tempo van along with the goods or as authorized representative of the goods. Ignoring the recitals in Ex.A-1, the Tribunal was not right in finding that the deceased Gopal and injured claimant Unnamalai travelled in the tempo van along with the goods.

11. The question that calls for consideration in these appeals is whether insurer is liable to pay compensation to the dependants of the deceased passenger Gopal while the deceased/injured claimant travelled as passenger in goods vehicle.

12. Finding that the injured claimant and deceased Gopal had travelled in lorry along with the goods/marriage articles, as owner of goods, the Tribunal held that the Insurance Company is liable to indemnify the injured. Fixing the age of the deceased at 40 and multiplier 16 and taking the income at Rs.2,877 p.m., the Tribunal has awarded total compensation of Rs.4,81,973/-. For the injured claimant, the Tribunal has awarded compensation of Rs.94,000/-.

13. Assailing the findings of the Tribunal and challenging the liability being fastened upon the appellant Insurance Company, the learned Counsel for the Appellant has submitted that from Ex.P-1 FIR, it is evident that the marriage party travelled in the tempo van, which is a commercial vehicle, as gratuitous passengers. Placing reliance upon Asha Ranis case 2003 ACJ 1 (SC) and 2005 ACJ 721 [National Insurance Co. Ltd., v. Bommithi Subbhayamma and ors.], the learned Counsel for the Appellant submitted that in various decisions, the Supreme Court has consistently held that the Insurance Company is not liable for payment of any compensation for the death of a gratuitous passenger travelling in a goods vehicle.

14. Placing reliance upon New India Assurance Company Ltd. v. Satpal Singh 2000 ACJ 1 (SC), Satpal Singhs case (overruled by the Supreme Court), the learned Counsel for the respondents claimants contended that the deceased Gopal and injured claimant Unnamalai travelled along with the goods and therefore, the Tribunal has rightly held that the Insurance Company is liable to pay the compensation. The learned Counsel for the claimants further submitted that in any event, the liability of the insurer vis-a-vis, third party will not be altered.

15. The learned Counsel for the respondents claimants further argued that Baljit Kaurs case would have only prospective effect from the date of Judgment of the case viz., 06.01.2004 and for cases of erstwhile accidents, position of law is that the Insurance Company shall have to pay and recover from the owner of the vehicle.

16. Vital question is regarding the liability of the Insurance Company. In the light of the submissions, the following points arise for consideration :-

"(1)Whether the Insurance Company is liable to indemnify the owner of the vehicle in respect of death of a gratuitous passenger/injured claimant travelling in goods carriage;

(2)in the light of latest decisions of the Supreme Court, whether Baljit Kaurs case will have only prospective effect i.e. from the date of Judgment of the Supreme Court viz., 06.01.2004".

17. In case of New India Assurance Company Ltd. v. Satpal Singh 2000 ACJ 1 (SC), Supreme Court interpreted the word "death or bodily injury to any person". It was held that everyone is statutorily covered under the new Act. Essence of the decision of the Supreme Court is that "a gratuitous passenger, fare paying passenger, passenger who is the owner of the goods who is travelling in the vehicle along with the goods, employee, representative, everyone is covered under the new Act". In Satpal Singhs case the Supreme Court was interpreting Sec.147 as it stood before the Amendment Act 54 of 1994 which came into force on 14.11.1994.

18. Correctness of the decision in Satpal Singhs case came up for consideration before three Judge Bench of Supreme Court in New India Assurance Co.Ltd. v. Asha Rani [2003 ACJ 1 (SC)]. Having regard to the various definitions involving legal questions, the Supreme Court held as under :-

"In Satpals case, 2000 ACJ 1 (SC), the Court assumed that the provisions of Sec.95(1) of Motor Vehicles Act, 1939, are identical with section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorized representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorized representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles (Amendment) Act of 1994 is examined, particularly section 46 of the54 of 1994 by which expression injury to any person, including owner of the goods or his authorized representative carried in the vehicle the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if widest interpretation is given to the expression to any person it will not cover either the owner of the goods or his authorized representative being carried in the vehicle. The objects and reasons of Section 46 also states that it seeks to amend Sec.147 to include owner of the goods or his authorized representative carried in the vehicle for the purpose of liability under the insurance policy. It is not doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent 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 subsequently to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provision referred to earlier, it is difficult for us to construe that the expression including owner of the goods or his authorized representative carried in the vehicle which was added to the pre-existing expression injury to any person is either clarificatory or amplification of the pre-existing statute. On the other hand, it clearly demonstrates that the legislature wanted to bring within the sweep of section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The Judgment of this Court in Satpals case (supra), therefore, must be held to have not been correctly decided and the impugned Judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury". (underlining added).

19. The effect of amendment came up for consideration in Baljit Kaur and others [2004 ACJ 428 SC = 2004 (2) SCC 1 [LQ/SC/2004/22] ]. Following Asha Ranis case, the Supreme Court held that "injury to any person" would only mean third party and not a passenger travelling on goods carriage whether gratuitous or otherwise. Reaffirming the legal position in Asha Ranis case, the Supreme Court held as under:-

"19. In Asha Rani, 2003 ACJ 1 (SC) it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death or of 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. Furthermore, an owner of a passenger carrying vehicle must pay premium for covering the risk of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorized representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.

20. It is, therefore, manifest that inspite of the amendment of 1994, the effect of the provision contained in Sec.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 or 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, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people".

20. The question whether Insurance Company is liable to indemnify the insured for death/injury to gratuitous passengers in a goods vehicle came up for consideration before Division Bench of this Court in 2006(1) MLJ 154 [M/s. United India Insurance Company Ltd., v. Selvam and ors.]. Referring to Asha Ranis case [2003 ACJ 1 [LQ/SC/2002/1274] ] and Baljit Kaurs case, 2004 (2) SCC 1 [LQ/SC/2004/22] , Division Bench of this Court held that Baljit Kaurs case will have prospective effect from the date of Judgment of the case viz., 06.01.2004 and for cases of erstwhile accidents, position of law is that the Insurance Company shall have to pay and recover from the owner of the vehicle. Referring to the Baljit Kaurs case, this Court held as follows:-

"9. Although the above view was taken in favour of the Insurance Company, it was ultimately held that the law was not clear so long and so the legal position as clarified in the Judgment shall have only prospective effect. Therefore, it was held in that case, the interest of justice will be sub-served if the appellant is directed to satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle.

10. Thus it is made clear that even though the position of law is in favour of the Insurance Company, that may have only prospective effect from the date of this case viz., 06.01.2004 and for cases of erstwhile accidents, the position of law is that the Insurance Company shall have to pay and recover from the owner of the vehicle".

21. Subsequent to Asha Ranis case and Baljit Kaurs case, the Honble Supreme Court has held that the Insurance Company is not liable to pay compensation to death/injury to a gratuitous passenger who travelled in a goods carriage. In 2005 ACJ 721 [National Insurance Co. Ltd., v. Bommithi Subbhayamma and ors.], taking into consideration a large number of decisions, the Honble Supreme Court has held that the Insurance Company is not liable to pay compensation to death of a gratuitous passenger travelling in the goods vehicle. The Supreme Court has further held that the claimants are entitled to recover compensation awarded only from the owner of the vehicle. Extensively, Supreme Court has referred to Baljit Kaurs case.

22. In Bommithi Subbhayammas case, accident was on 05.11.1995, after the amendment to M.V. Act, 1988. The deceased travelled as gratuitous passenger in a goods vehicle. Referring to Asha Ranis case and Baljit Kaurs case, Supreme Court held that the claimants are entitled to recover compensation awarded from the owner of the vehicle.

23. Again in 2007 ACJ 1043 (SC) [New India Assurance Co. Ltd. v. Vedwati and ors.], the Honble Supreme Court has held that the Insurance Company is not liable to pay compensation to the injury caused to any passenger travelling in the goods vehicle. Referring to a number of decisions, in Vedwatis case, Supreme Court has held as follows :-

"14. The inevitable conclusion, therefore, is that provisions of the 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 therefor.

15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Co.Ltd. v. Asha Rani, 2003 ACJ (1 [LQ/SC/2002/1274] ) (SC), in which it has been held that Satpal Singhs case, 2000 ACJ 1 (SC), was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.

16. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACJ 468 (SC). Subsequently also in National Insurance Co. Ltd, v. Ajit Kumar, 2003 ACJ 1931 (SC), in National Insurance Co. Ltd. v. Baljit Kaur, 2004 ACJ 428 (SC) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma, 2005 ACJ 721 (SC), the view of Asha Ranis case, 2003 ACJ 1 (SC), was reiterated".

24. In 2008 ACJ 268 [LQ/SC/2007/1283] : 2007 AIR SCW 7337 [National Insurance Co. Ltd. v. Cholleti Bharatama and ors.] the date of accident was on 16.12.1993 and gratuitous passengers travelled in goods vehicle. Considering the question whether Insurance Company is liable for the death of or injuries sustained by the passengers travelling in goods vehicle gratuitously, the Honble Supreme Court has held that the Insurance Company is not liable to pay compensation for death or injuries sustained by passengers travelling in goods vehicle gratuitously.

25. After Asha Ranis case, both in Vedwatis case and Cholleti Bharatammas case, the Honble Supreme Court had taken a consistent view that the Insurance Company is not liable for the death or injuries sustained by passengers travelling in goods vehicle gratuitously. In the above case, principle of "Pay and recover from the owner of the vehicle was not ordered by the Supreme Court".

26. In 2007 SAR (Civil) 683 [Oriental Insurance Co. Ltd. v. Brij Mohan and Ors.], the claimant who was a labourer was travelling on trolley attached to a tractor. He slipped from trolley and came under the wheels thereof. Trolley was not insured and the tractor was not used for agricultural purposes. In the said case, the Supreme Court has held that the claimant is not covered under Sec.147 of the. However, observing that the claimant is a poor labourer, in exercise of its jurisdiction under Art.142 of the Constitution of India read with 136 thereof, for doing compete justice to the parties, the Supreme Court has directed the Insurance Company to pay to the injured claimant and directed that the Insurance Company may recover the amount from the owner in the same manner as was directed in Nanjappan case and Kusum Rai case [2006 (4) SCC 2005].

27. The Honble Supreme Court has directed the Insurance Company to pay compensation and recover the amount from the owner of the vehicle in exercise of its jurisdiction under Art.142 of the Constitution of India read with Art.136.

28. In the light of the latest decisions of the Supreme Court, exonerating the Insurance Company from its liability to pay compensation for the death/injury to the gratuitous passenger travelling in a goods vehicle, substantial doubt arises whether the decision of the Division Bench of this Court made in 2006(1) MLJ 154 could be followed.

29. In view of the latest decisions of the Supreme Court, in my considered view, the decision of the Division Bench of this Court made in 2006(1) MLJ 154 is to be clarified.

30. The matter shall be placed before the Honble Chief Justice for obtaining necessary orders.