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Judgment
Rajesh Tandon, J.—Heard Sri R.P. Nautiyal and Sri Pankaj Purohit counsel for the appellant and Sri Vijai Khanduri counsel for the respondent No. 2.
The present appeals have been filed against the judgment and order dated 54.2007 passed by the Motor Accident Claims Tribunal, Chamoli.
Briefly stated the facts giving rise to the present appeals are that the appellant Pushkar Singh and Smt. Roopsi Kunwar have filed two separate claim petitions before the Motor Accident Claims Tribunal, Chamoli for the grant of compensation on account of injuries sustained by Pushkar Singh and death of phir Bahadur in a motor vehicle accident on 16.10.1998 at 3.30 PM on Sonla-Kandara motor road in District Chamoli involving truck No. U.P. 05 /0078. According to the claimant Pushkar Singh, he sustained grievous injuries in the accident. The claimants have alleged that the accident had taken place due to rash and negligent driving by the driver of the vehicle in question.
The opposite parties contested the claim petition. The opposite parties No. 1 who is the insurer of the truck denied that the accident took place due to rash and negligent driving of the truck. The owner of the truck had no valid registration, fitness certificate, permit etc. The truck was not authorised to carry passengers and as Such the owner and driver of the truck have flouted the terms and conditions of the insurance policy.
The opposite party No. 2 has stated in written statement that at the time of accident the driver of the vehicle had valid driving licence and all the papers of the truck were valid and effective. The truck was validly insured with the New India Assurance Company and as such the insurance company is liable to pay compensation.
On the pleadings of the parties following issues were framed by the Claims Tribunal in the case of Smt. Rupasi Kunwar:
Whether Dheer Bahadur died due to the injuries sustained on 16.10.99 at 3.30 PM at Sonala due to rash and negligent driving of Truck No. UP 05/0078?
Whether the truck was insured with the New India Assurance Company and the driver of the truck had a valid driving licence and registration at the time of accident?
To what amount of compensation is the claimant entitled?
On the pleadings of the parties following issues were framed by the Claims Tribunal in the case of Pushkar Singh:
Whether Pushkar Singh sustained injuries on 16.10.99 at 3.30 PM at Sonala due to rash and negligent driving of Truck No. UP 05/0078?
Whether the truck was insured with the New India Assurance Company and the driver of the truck had a valid driving licence and registration at the time of accident?
Whether the alleged accident took place due to mechanical failure as stated by the Jai Singh in paragraph 19 of his written statement?
To what amount of compensation is the claimant entitled?
Both the parties have adduced evidence. On the basis of the evidence of the parties the Claims Tribunal has held that the accident had taken place due to rash and negligent driving by Truck no. U.P. 05/0078. The truck was being driven against the terms and conditions of the insurance policy on the date of accident.
In the case of claimant Pushkar Singh the Claims
Tribunal has awarded compensation of Rs. 11,700.00 for medical expenses, Rs. 1,12,500 for permanent disability, Rs. 10,000/- for mental pain and sufferings and Rs.20,000/- for future inconvenience. Thus the Claims Tribunal has awarded a total sum of Rs. 1,54,200/- to claimant Pushkar Singh.
In the case of claimant Smt. Rupsi Kunwar and another the Claims Tribunal has awarded compensation on the basis of notional income of Rs. 15,000/- per annum and awarded a sum of Rs. 1,00,000/- to the claimants.
Initially both the cases were decided by the Motor Accident Claims Tribunal, Chamoli vide order dated 7.5.2002 and 4.7.2002. Against the judgment and award dated 7.5.2002, the New India Assurance Company has filed A.O. No. 168 of 2002 and Roopsi Kunwar has filed A.O. No. 207 of 2005. A Division Bench of this Court has decided the said appeals vide judgment and order dated 21st November 2006 and remanded the matters to the Claims Tribunal with the following order:
The perusal of the awards reveal that the findings recorded by the Tribunal in both claim petitions are inconsistent with each other and thus the findings cannot be reconciled. If the learned Tribunal would have consolidated both the claim petitions, there would not have been any inconsistent findings. Therefore, we have no option to set aside the findings given in both the claim petitions. It would be just and proper in the interest of parties and in the interest of justice to set aside the impugned judgement passed in both claim petitions and to remand back the matter to the Tribunal to consolidate both the claim petitions and decide them so as to avoid the inconsistency in the findings.
In view of the above, the impugned awards dated 7.5.2002 and 4.7.2000 passed by the Motor Accidents Claims Tribunal/District Judge, Chamoli in M.A.C.P. Nos. 16/1999 and 27 /1999 respectively are set aside. The matters are remanded back to the learned Tribunal with the directions to dispose of both claim petitions in light of the observations made above. However, it is made clear that the amount already withdrawn by the claimants in the claim petitions shall be adjusted by the Tribunal at time of disposal of the claim petition. In case, the Tribunal comes to the conclusion that the claimants are not entitled to the rest amount kept in deposit before the Tribunal that would be returned to the insurer after disposal of the claim petitions. The Tribunal is directed to dispose of the matters expeditiously, preferably within a period of four months from the date of the receipt of copy of this order.
Counsel for the insurance company has submitted that the deceased and injured person was gratuitous passengers in the truck and as such the insurance company is not liable to pay compensation to the claimants. Counsel for the insurance company has placed reliance on the case of National Insurance Co. Ltd. v. Swaroopa (2005) 11 SCC 419, where the Apex Court after placing reliance on the case of New India Assurance Company Vs. Shri Satpal Singh and Others, and New India Assurance Co. v. Asha Rani (2003) 2 SCC 223 has held that insurance company is not liable to pay compensation in respect of the gratuitous passengers travelling by a goods vehicle. The Apex Court has observed as under:
Respondents 1 to 6 are the legal representatives of the deceased who died in an accident on 28-1-1996 leading to the filing of a claim petition on 9-7-1996 under the provisions of the Motor Vehicles Act, 1988. By order dated 20-8-1990 (sic), the Motor Accidents Claims Tribunal (for short "the Tribunal") granted compensation both against the appellant Insurance Company and the owner of the vehicle, Respondent 7 herein. The appeal filed in the High Court by the appellant Insurance Company disputing its liability to pay to the legal representatives of the deceased was dismissed on 27-8-2002, in view of the law then prevailing as a result of the decision of this Court in New India Assurance Co. v. Satpal Singh 1. The said decision has now been overruled by this Court in New India Assurance Co. Ltd. v. Asha Rani 2 wherein it has been held that an insurance company will not be liable to pay compensation in respect of a gratuitous passenger being carried in a goods vehicle if the vehicle meets with an accident. In this view, we set aside the impugned judgment of the High Court affirming the order of the Tribunal The claim petition against the appellant shall stand dismissed. We, however, clarify that the amount of compensation, if any, that may have been paid to Respondents 1 to 6 shall be recoverable by the Insurance Company from the owner of the vehicle, Respondent 7 herein and not from the legal representatives of the deceased.
Section 147 of the Motor Vehicles Act, 1988 reads as follows:
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) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen''s Compensation Act, 1923 (8 of 1923), in respect of the death of or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
(2) Subject to the proviso to Sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely-
(a) save as provided in Clause (h), the amount of liability incurred;
In the present case case of the Insurance Cover note paper No. 49-C shows that the provisions of Section 147 are applicable to this case.
Counsel for the appellant has submitted that after the remand order the Claims Tribunal has deducted the amount of compensation, which is not proper. The Claims Tribunal has also committed illegality by awarding interest at the rate of 5% per annum only and has not complied with the directions made in the earlier remand order.
In view of above, the impugned judgment and award is set aside. The case is remanded to the Claims Tribunal for deciding it afresh in the light of the observations made above and in accordance with law. Accordingly, all the appeals are allowed.
No order as to costs.