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Judgment
R.P. Gupta, J.
This appeal is directed against the award dated 6.1.95 given by the Motor Accident Claims Tribunal, Khandwa, whereby a sum of Rs. 57,600/- was awarded in favour of respondent 1 as compensation for the death of her son Dinesh, aged about 26 years against the appellant. The death occurred due to injuries suffered in a road accident wherein a motor-cycle No. MP12 - 1404 slipped and fell on the road. It was being driven by the owner Ashok and the deceased Dinesh was sitting on the pillion seat. Both of them suffered injuries but Dinesh died the next day. Claimant/respondent 1 is the mother of Dinesh. The compensation of Rs. 57,600/- was awarded in favour of respondent 1 against appellant no. 1 and not against the insurance company. The appellant has raised two-fold contentions: (1) that insurance company should have been made liable when it was found established that the motor-cycle was insured comprehensively, and (2) that the amount awarded was excessive.
After perusing the evidence available on the record of the tribunal, I find that the assessment of the tribunal that the deceased was earning Rs. 600/- p.m. atleast as an employee at private shop, was not at all excessive and was rather on the lower side. The tribunal rejected the evidence that the deceased used to earn Rs. 600/- p.m. extra by doing tailoring work. I find no infirmity in the conclusion of the tribunal that the dependency of the mother who is a widow to the extent of Rs. 300/- p.m. should be taken as established. The tribunal thus found the dependency of Rs. 3600/- per year and used the multiplier of 16 to reach the figure of Rs. 57600/-.
The tribunal had found that the vehicle was insured but on the basis of pronouncement of P6 Haryana High Court in the case of Surjit Singh and Another Vs. Santosh Kumari and Others, held that the insurance company was not liable to pay the insurance claim.
This accident took place after the Motor Vehicles Act, 1988 came into force. So those provisions would be attracted. Section 147 of this Act provides for requirements of policies and limits of liability in the following terms -
Requirements of policies and limits of liability -(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or 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;
(ii) 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;
Provided that a policy shall not be required -
(i) not relevant for the purpose of the present case.
Explanation -(not relevant for the purpose of the present case).
(2) Subject to the proviso to sub-section (1) of policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, upto the following limits, namely -
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand;
(3) Not relevant for the purpose of this case,
(4) Not relevant for the purpose of this case,
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
Section 128 of the Motor Vehicles Act, 1988 permits carrying of one person apart from driver on a two-seated motor-cycle. So sitting on the pillion seat by Dinesh while appellant Ashok was driving, was permissible in law. It is expected that the motor-cycle could be used by a driver and one more person would be sitting on the pillion seat.
The insurance policy Ex.D.1 in the present case shows that this motor-cycle was insured from 28.1.90 to 28.1.91. It has been found that the appellant was not withes, driving licence. The insurance policy provides limitation to use it for private use only. There is no other limitation to liability for death or injury to the pillion rider provided in the policy. The pillion rider is neither insurer nor insured. He is the third party. In the certificate of insurance under the heading ''limits of liability'' 2 limits are mentioned, (i) limits of the amount of the company''s liability u/s II (1) (a) in respect of any accident; such amount as is necessary to meet the requirements of M.V. Act, 1939; (ii) limited to the amount of company''s liability u/s 2 (1) (a) in respect of any one claim or series of claims arising out of one event, unlimited.
Then there are certain limitations as to use. In our case there is no assertion that those limitations were violated. The exact term of the policy in para "(1) (a) has not been placed on record by any side. Apart from the insurance certificate nothing else of the policy has been brought on record. It may be noticed that at the time of this policy M.V. Act, 1939 was not in force and the M.V. Act, 1988 had come into force. It appears that some old proforma has been used in issuing the insurance certificate D-1. Assuming that the proformas used for issuing all the policies by the insurance company are similar, it may be noticed that the Apex Court considered the limitations prescribed by section 11-(1) (a) of the then policy vis-a-vis a gratuitous passenger in a car, in a case cited as Amrit Lal Sood and Another Vs. Smt. Kaushalya Devi Thapar and Others, . The case arose before the Apex Court in the following context -
The claimant was a passenger in a private car owned by one appellant and driven by the other appellant. Car suffered an accident with a goods vehicle. It was found that the driver of the car was negligent. The passengers of car were found to be gratuitous and not for hire or in the course of employment. The claimant was one of the passengers. He was allowed compensation against owner and driver but not against insurance company by a Division Bench of Himachal Pradesh High Court. The owner and driver appealed to the Apex Court by special leave, for liability of insurance company also. The Apex Court considered the provisions of S. 95 of the Act of 1939 equivalent of present S. 147 and also limits of liability arising under the terms of the policy, particularly section 11-(1) (a) of the policy. This clause (a) was as under -
The company will indemnify the insured in the event of accident caused by or arising out of use of the motor car against all sums including claimant''s costs and expenses which the insured shall become legally liable to pay in respect of; (a) death of or bodily injury to any ''person'' but, except so far as is necessary to meet the requirements of S. 95 of the M.V. Act, 1939, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.
The Apex Court in this pronouncement observed that the words ''any person'' in this clause of the policy would undoubtedly include an occupant of the car who grtuitously travelled in the car. The court further observed that remaining part of this clause relates to case of death or injury arising out of and in the course of employment of such person by the insured. In the case of employment, the liability of the insurance company is limited to the event necessary to meet the statutory requirements of S. 95. But there was no such limitation regarding gratuitous passengers. It was held that the insurer is therefore liable to satisfy the award passed in favour of the claimants. The court further observed that it was a different aspect that the insurance company may have a case against the insured if it was made to satisfy the award in favour of the gratuitous passengers.
In view of this interpretation of the Supreme Court on the provisions of policy it becomes clear that earlier judgments of the High Court to the contrary are not good law and stand over ruled. So the judgment of the Punjab & Haryana High Court relied upon by the counsel for insurance company is no longer good law.
If we look at S. 147 of the M.V. Act, 1988 noted already, the requirement is that a policy of insurance must be a policy which;
(a)..............
(b) insures the person or clauses of person specified in the policy to the extent pacified in sub-section (2).............
(i) against any liability which may be incurred by him in respect of death or bodily injury to any person; including...............
When so read it becomes clear that this condition of insurance in S. 147 of the Act requires that the insurance will cover liability which may be incurred in respect of death or bodily injury to any person. This term ''any person'' was interpreted by the Apex Court in the above judgment (although while interpreting a clause of insurance policy in that case) as meaning and inclusive of those travelling in side the vehicle. The limits of liability which existed in section 95 (2) of the M.V. Act, 1939 have been removed in S. 147 (2) of the Act of 1988. The liability now is unlimited.
Thus not only under the term of policy Ex.D-1 but also in view of provisions of Section 147 (1) (b) (i) it becomes clear that the insurer undertook to indemnify the insured in respect of all liabilities arising out of death or bodily injury to any person. A pillion rider on a two wheeler is an authorised rider as per section 128 of the M.V. Act. He would certainly be covered by ''any person'' laid down in the above section and in the policy. The policy Ex.D-1 is comprehensive, it is not in dispute. It included the liability to public risk. It is thus clear that the insurer is also liable to pay the damages to the claimants. They are liable to indemnify the appellant whose vehicle was insured in this case.
In view of the above discussion the appeal is accepted. It is directed that respondent no. 2 is also liable to pay the damages, in this case, allowed in favour of respondent no. 1. To this extent the award of the tribunal is amended. I leave the parties to bear their own costs.