Swapan Ghosh vs Dipankar Saha And Ors

[1] This appeal is filed by the owner of the vehicle which was involved in an accident causing fatal injuries to one of the passengers in the vehicle. His only contention is that the Motor Accident Claims Tribunal by the impugned judgment dated 20.09.2018 erred in absolving the insurance company from liability to pay compensation. This being the limited controversy, bare necessary facts may be recorded.

[2] The appellant was the owner of a Maxi Truck which was registered as a goods carriage vehicle. On 08.06.2013 at about 4.30 in the afternoon this vehicle met with an accident causing death of one Uttam Saha who was travelling in the vehicle along with his goods. His dependents, therefore, filed a claim petition claiming compensation of Rs.23,30,000/- from the owner and insurer of the vehicle in question. The Claims Tribunal awarded compensation of Rs.10,21,280/-. The insurance company was absolved on the ground that the policy did not cover the risk of a passenger even though travelling with the goods. This judgment the owner has challenged in appeal.

[3] Having heard learned counsel for the parties, I find that the Tribunal has committed a serious error in absolving the insurance company of its liability to cover the risk of the passenger travelling in the vehicle with his goods. The Claims Tribunal has come to definite conclusion that the deceased was travelling in a goods carriage vehicle with his goods. Nothing is brought to my notice to disturb these findings. I must, therefore, proceed on such basis.

[4] The law on point is sufficiently clear and post the amendments of 1994 in the Motor Vehicles Act the statutory insurance policy would cover the risk of a passenger travelling with goods in a goods carriage vehicle. This amendment however, it has been stated by the Supreme Court on numerous occasions, would not cover the risk of a gratuitous passenger. These aspects have been highlighted by the Supreme Court in case of United India Insurance Company Limited Versus Suresh K.K and another reported in (2008) 12 SCC 657 wherein it was observed as under :

"9. The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act 54 of 1994 was to widen the scope of the liability of the insurance company."

[5] In case of National Insurance Co. Ltd. Versus Baljit Kaur and others reported in (2004) 2 SCC 1 it was observed as under :

"19. In Asha Rani (2003) 2 SCC 223, 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 of or 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 risks 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.

It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 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 of 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, especially gratuitous 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."

[6] The Tribunal unfortunately placed reliance on a decision of Supreme Court in case of National Insurance Co. Ltd. Versus Cholleti Bharatamma and others reported in (2008) 1 SCC 423 which concerned an accident which had occurred prior to the amendments in Section 147 of the Motor Vehicles Act carried out in the year 1994. It was in this background the Court had held that the statutory insurance policy would not cover the risk of a passenger carrying goods in a goods carriage vehicle.

[7] Learned counsel for the insurance company, however, relied on a recent decision of Supreme Court in case of Anu Bhanvara Etc. versus IFFCO Tokio General Insurance Co. Ltd. and others reported in (AIR) 2019 SC 3934. It was a case where the injured was a gratuitous passenger in goods vehicle. The Supreme Court, therefore, proceeded on the basis that the insurance policy did not cover the risk of such a passenger.

[8] In the result, to the limited extent that the Claims Tribunal has absolved the insurance company from its liability to pay the compensation to the claimants, the same is reversed. It is held that the owner as well as the insurance company has jointly and severely liable to satisfy the award. Amount of Rs.25,000/- deposited by the appellant at the time of filing the appeal shall be transmitted to the Claims Tribunal and shall be adjusted towards the compensation to be paid to the claimants.

[9] The appeal is disposed of accordingly. Pending application(s), if any, also stands disposed of.