Oriental Insurance Company Ltd., Lucknow vs Manju and Others

Amitava Lala, J.—This appeal has been preferred from a judgment and award of the Motor Accident Claims Tribunal dated 28.9.92 in the Motor Accident Case No.61 of 1991

The moot point of argument of the appellateInsurance Company before this Court is that the person who expired, was gratuitous passenger, as such not entitled for any compensation. There was no occasion of such person to sit on the mudguard of the vehicle i.e. the tractor, which usually carry out goods. Learned counsel appearing for the Insurance Company points out the scope and ambit of Section 147 of the Motor Vehicles Act, 1988.

We have carefully gone through such Section and found in subsection (1)(b) the words �any person�, thereafter, the words �including owner of the goods or his authorised representative carried in the vehicle� were incorporated by way of amendment w.e.f. 14.11.94. Learned counsels, argued before this Court, by citing 3 Supreme Court judgments on the subject whether gratuitous passenger can or can not be allowed to get any compensation in view of the ratio laid down by the Supreme Court.

We have considered all the 3 judgments. The first judgment is reported in (2003) 2 SCC 223 (New India Assurance Co. Ltd, v. Asha Rani and others), when the others reported in 2004 ACJ 428 (National Insurance Co. Ltd. v. Balijit Kaur and others) and 2004 ACJ 1909 (National Insurance Co. Ltd. v. V. Chinnamma and others). In Asharani''s case (Supra) the ratio has been laid down by the Supreme Court that �any person� means any person but in subsequent 2 judgments the position has been clarified by Supreme Court to the extent of the premium paid. In Baljit Kaur''s case (Supra) it has been laid down as follows:

�17. By reason of the 1994 amendment what was added is, �including owner of the goods or his authorised representative carried in the vehicle�. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words ''any person'' occurring in section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever, if such was the intention there was no necessity of Parliament to carry out an amendment in as much as the expression ''any person'' contained in subclause (i) of clause (b) of subsection (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.�

In the said judgment it has been further clarified in Paragraphy 21 as under :

�We, therefore, clarify the legal position, which shall have prospective effect.�

In V. Chinnamma''s case (Supra) Supreme Court held that the Tractor cannot be held to be passenger''s vehicle. However, in the operative paragraph it was said that �However, even if it be assumed that the trailer would answer the description of the �goods carriage� as contained in Section 2(14) of Motor Vehicles Act, the case would be covered by decision of this Court in Asharani''s case 2003 ACJ 1 (SC) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment.

In the instant case, date of occurrence is 15th April, 1991 much prior to the amendment. Therefore the old ratio will be applicable in this case in getting the benefit from the Insurance Company. In further on the argument of differentiation, the learned counsel appearing for the appellant Insurance Company wanted to make differentiation of classes of vehicle on the strength of Section 2 (21) read with Section 41 but we do not find on the basis. In our careful consideration we do not find any differentiation lies in between the category of vehicles. However, learned counsel appearing for the appellant conceded to that extent.

Under such circumstances, we are of the view that the family of the person facing the accident will be entitled for the compensation as per the order passed by the Tribunal and we dispose of the matter with such observation and order and also on the basis of the judgment of the Supreme Court reported in (2001) 4 SCC 348 (New India Insurance Company v. Kamla Devi) as regards recovery of the amount by the Insurance Company from the owner.

In view of the above, the Insurance Company will be entitled to recover compensation from the owner and the payment will be made within a period of one month from this date minus Rs.25,000/ which has been deposited with this Court. The respondents are entitled to withdraw such amount on the strength of judgment and order passed by this Court.

(Ordered accordingly)