New India Assurance Co. Ltd. vs Jiban Saha and Another

Both the cases have arisen out of a single Judgment and award dated 24.1.1994, passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala in Title Suit (MAC) No. 113 of 1994.

In the first referred case, the appellant New India Assurance. Company Ltd. Preferred appeal against the award dated 24.1.1994 by which the learned Member, Motor Accident Claims Tribunal awarded compensation of Rs. 86,720 to the claimant-respondent with 12% interest per annum if payment is made within one month, else 20% interest per annum from the date of filing of the claim petition and in the second referred case, the claimant preferred to appeal against the aforesaid judgement and award seeking enhancement of the awarded amount and as such both the cases are taken together for hearing and final adjudication.

Heard the learned counsel for the respective parties.

The case, in short, is that on 17.1.1994 at about 6 P.M. while the claimant Shri Jiban Kumar Sana was returning from Khowai to his house at Agartala having boarded in the Vehicle TR-01-1597 (Lorry) which was insured with the New India Assurance Co. Ltd. at the relevant time, the vehicle dashed with a tree standing nearby the road side, as a result the claimant sustained injury on his forehead, legs and other parts of the body. The accident happened due to rash and negligent driving of the vehicle as alleged. He filed claim petition seeking compensation of Rs. 4,30,000. He also contended, inter alia, that as a result of injuries sustained by him he got admitted in G.B. Hospital, Agartala and received treatment therein as indoor patient from 17.1.94 to 16.2.94 and thereafter, he had to go to Calcutta for further treatment by specialist doctor.

The Insurance Company resisted the claim by filing written statement before the learned Member, Motor Accident Claims Tribunal contending, inter alia, that the vehicle being a Lorry had no legal authority to carry passengers and as such the claim petition was not entertainable to all. The owner though filed written statement virtually admitting the accident etc., but took the plea thai his vehicle was insured with the New India Assurance Co. Ltd. at the relevant time and as such compensation, if any, that was to be paid by the insurer.

After recording the evidence, the learned Tribunal made the compensation as indicated in the beginning of this judgment.

Mr. A.M. All, learned counsel appearing on behalf of the Insurance Company placed a single point argument contending that the vehicle being a lorry was not authorised at the relevant time to carry passengers and as such the claimant having travelled unauthorisedly in the said vehicle was not entitled to be compensated. Mr. Ali referred a decision of the Hon''ble Apex Court in Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, and submits that only a vehicle which is used for a systematic carrying of passengers, can be said to be a vehicle in which passengers are carried for hire or reward and the persons travelling in goods vehicles, whether owners of the goods or passengers on payment of fare or gratuitous passengers, who died in accident met with by such goods vehicle are not covered by proviso (ii) of section 95(1)(b) of the M.V. Act, 1939. But the present case is not governed by the . old Act, but is squarely covered by the M.V. Act of 1988.

To controvert the aforesaid legal position, Mr. A. Ghosh learned counsel appearing on behalf of the claimant referred a decision of the Hon''ble Apex Court in New India Assurance Company Vs. Shri Satpal Singh and Others, and having relied upon the same, Mr. Ghosh contends that under the new Act even the gratuitous passengers are entitled to be compensated if the accident is not attributable to any Act of the gratuitous passengers.

I have paid serious attention to the aforesaid decision, particularly paragraph 11. In that paragraph the Hon''ble Apex Court held -

"11. The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a-vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force."

In paragraph 5 of the aforesaid judgment, the Hon''ble Apex Court took into consideration the above referred case of Mallawa (supra) and distinguished the same and held that the ratio of Mallawa (supra) would be of no help in a case where accident happened after commencement of the Act of 1988.

So in view of Article 141 of the Constitution of India, both the aforequoted decisions of the Hon''ble Apex Court are good but hold the different fields. Had the accident been happened before the commencement of the Act of 1988, the ratio laid down by the Hon''ble Acpex Court in Mallawa (supra) would have squarely covered the case of the Insurance Company, but as the accident in the case in hand happened after the commencement of the Act of 1988, the decision of Mallawa (supra) is of no help rather the decision rendered by the Hon''ble Apex Court in New India Assurance Company (supra) is squarely applicable in the present case.

In that view of the matter, I am of the considered opinion to hold that any vehicular accident happened/happens after the commencement of the Motor Vehicles Act, 1988, gratuitous passengers or any passenger travelling in a lorry or any vehicle not authorised otherwise to carry passengers are also entitled to be compensated by the insurance Company unless it is proved to the satisfaction of the learned Tribunal that the accident occurred only due to carrying of the aforesaid gratuitous or unauthorised passengers. To get exoherated from liability the Insurer is to prove that the carrying of unauthorised/gratuitous passengers was the only cause of such accident. That is not the case here. The appeal preferred by the Insurance Company, therefore, must fail.

So far the appeal preferred by the claimant seeking enhancement is concerned, I find no reason to allow the same. The amount of compensation awarded by the learned Tribunal appears to be just and fair, of course, the imposition of 20% interest per annum by the learned Tribunal in case of failure of the Insurance Company to make the payment within a month is too much excessive. The Insurance Company is to pay interest @ 12% per annum throughout from the date of filing of the claim petition till realisation.

With this modification, both the appeals are disposed of. No order as to costs.