New India Assurance Co. Ltd. vs Shantaben Bava and others

Rathod, J.—Heard the learned advocate Mr. Vibhuti Nanavati for appellant insurance company and the learned advocate Mr. K.L. Dave for respondents-original claimants in this group of appeals.

By filing these appeals, the appellant insurance company has challenged common award made by M.A.C.T. at Junagadh in M.A.C.P. No. 189 of 1995 and other consolidated matters dated 25.4.2000, Exh. 167. Accident occurred on 22.2.1995. The vehicle involved is Matador bearing No. GJ 14-T 3173 which was driven by opponent No. 1 and was insured with opponent No. 2. Policy was produced at Exhs. 162 and 166. R.C. book was produced at Exh. 165 and all matters were consolidated together and decided accordingly by Claims Tribunal. The Claims Tribunal considered following points for deciding said group of claim petitions:

(1) Whether it is proved that the incident occurred on account of rash and negligent driving of motor vehicle, i.e., carrier Tempo No. GJ 14-T 3173 by the opponent No. 1?

(2) Whether the opponent No. 2 is also liable for the aforesaid incident?

(3) Whether the deceased died due to injuries sustained in the aforesaid vehicular accident?

(4) To what amount of compensation the petitioners are entitled?

(5) What award?

The Claims Tribunal answered point Nos. 1 to 3 in affirmative and made award of compensation accordingly in favour of claimants which is under challenge in this group of appeals.

Before Claims Tribunal, ten witnesses were examined who have corroborated the facts narrated in F.I.R. and panchnama and said vehicle is insured with opponent No. 2 which is a goods vehicle, for which, it was argued by insurance company that as it is a goods vehicle, insurance company is not liable for payment of compensation to claimants. Claims Tribunal held that insurance company is liable to pay compensation to claimants as per decision in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC).

Learned advocate Mr. Vibhuti Nanavati appearing for the appellant insurance company has not challenged amount of compensation as worked out by Claims Tribunal in aforesaid group of claim petitions. Only legal contention is raised that when accident occurred on 22.2.1995, persons who were travelling in goods vehicle being marriage party and, therefore, their risk is not covered under the policy issued by the appellant insurance company, and all are gratuitous passengers, therefore, the Claims Tribunal ought not to have held the insurance company liable to pay compensation to the claimants. He submitted that Claims Tribunal has committed gross error in deciding the claim petitions holding liability of insurance company with owner of vehicle. He relied upon claim petition and written statement filed by insurance company. From the claim petition, he pointed out that claimant has made clear statement in affidavit that on 22.2.1995, all persons were going to take the daughter of Dahyabhai after marriage from Barvala to Malvan which has been considered as ''dhag'' after marriage. Matador No. GJ 14-T 3173 is belonging to respondent No. 1 who is owner and driver of said Matador. These persons were travelling with goods belonging to the daughter of Dahyabhai which has been called as goods relating to kariavar, i.e., dowry after paying fare of Rs. 50 to the owner and driver of said Matador. During that time, at about 6 a.m., on Kukavav-Amreli Road, near Kotda village, while passing through turn, driver of Matador, namely, opponent No. 1 drove the vehicle carelessly and in full speed as a result of which, Matador turned turtle wherein serious injuries were received by claimants on hands and legs and, thereafter, relying on aforesaid facts as admitted by claimants in their affidavit, learned advocate Mr. Nanavati submitted that it was an admission of the claimants that they were travelling in a goods vehicle as gratuitous passengers or as members of a marriage party and, therefore, insurance company is not liable to pay amount of compensation to claimants. He relied upon para 5 of written statement filed by the insurance company before the Claims Tribunal. Therefore, para 5 of written statement filed by insurance company is quoted as under:

(5) This opponent submits that the applicant was travelling as an illegal passenger in the vehicle alleged to be insured with us. This vehicle is a goods vehicle and travelling of such passenger was not permitted under the terms of policy as also under the provisions of Motor Vehicles Act and Rules and (a) that on the date of contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward; (b) that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward; and (c) that the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward; (d) that the vehicle was used by the insured or at his instance in breach of specific conditions including a condition that in the goods vehicle passengers for hire or reward were not to be carried.

In view of the above, this opponent is not legally liable to pay any amount of compensation. This opponent most respectfully at the costs of repetition beg to state that vehicle involved in the accident is a goods vehicle meant for carrying goods only having sitting capacity of one person only, i.e., driver only. The opponent No. 1 who is driver-cum-owner of the said vehicle was using the said vehicle at the time of accident in violation of R.T.O. permit and terms of policy. It is clear from police papers that at the time of accident about 50 persons were travelling as passengers illegally in this vehicle. It is not true that those passengers were owner of goods. It is respectfully submitted that the story of travelling of applicant and other injured persons and the deceased persons with goods has been developed with a view to make insurance company liable. There was at all no goods belonging to applicant. The applicant was illegal passenger only. In view of this, there is no liability on the part of this opponent to pay any amount of compensation finally or under the provisions of no fault liability. This opponent submits that M.A.C.P. Nos. 189 to 199, 227 to 279 and 376 to 379 of 1995 have arisen from this accident and looking to the facts and circumstances of the matter, it is prayed that all these matters may please be consolidated.

Relying upon aforesaid para 5 of the written statement, he submitted that in spite of raising all legal contentions available to insurance company in para 5 as referred to above, none of the contentions has been considered by Claims Tribunal and, therefore, Claims Tribunal has committed gross error. He relied upon the decision of Apex Court in case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, He also relied upon decision of Apex Court in the case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, para 21. He also relied upon decision of Apex Court in case of National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268 (SC) , para 17 and submitted that in case of owner of goods, if he was travelling in goods vehicle, then, he must travel only in the cabin of vehicle and not with the goods so as to be covered u/s 147, otherwise, such owner of goods is not permitted to travel in a goods vehicle. He also submitted that when insurance company itself is not liable because of breach committed by owner of vehicle, no order can be passed by Claims Tribunal to pay amount of compensation to claimants and then to recover the same from owner of vehicle. He relied upon para 7 of decision of Apex Court in the case of National Insurance Co. Ltd. Vs. Prema Devi and Others, [sic quoted from New India Assurance Co. Ltd. v. Vedwati, 2007 ACJ 1043 (SC), which is quoted as under:

(15) Our view gets support from a recent decision of a three-Judge Bench of this court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, in which it has been held that Satpal Singh''s case, 2000 ACJ 1 (SC) , was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.

(16) This position was also highlighted in Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., Subsequently also, in National Insurance Co. Ltd. Vs. Ajit Kumar and Others, in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, and in National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, the view in Asha Rani''s case (supra) was reiterated.

He also relied upon decision of Apex Court in case of National Insurance Co. Ltd. Vs. Rattani and Others, and submitted that in said decision, Supreme Court has considered case of members of marriage party travelling in truck allegedly transporting gifts received from the bride party and it was held that it cannot fall into the above category. He submitted that it was considered by Apex Court that when marriage party was travelling in a goods vehicle, then, whatever goods found with such unauthorised persons cannot be considered to be owner of goods and whatever goods are lying with such unauthorised person is not covered by the definition of ''goods'' given under the provisions of the Motor Vehicles Act. He further submitted that persons those who were travelling in goods vehicle Matador on the date of accident, they cannot even be considered to be caretaker of the goods. He also relied upon para 3, page 7 of award and submitted that no contention has been considered which has been raised by the appellant insurance company before Claims Tribunal at Junagadh while passing award in question. He also submitted that looking to language used by the Claims Tribunal in para 3 of award, it gives an impression that decision of Supreme Court in case of New India Assurance Company Vs. Shri Satpal Singh and Others, has been relied upon by insurance company, but in fact, said decision was not relied upon by the appellant because it is against insurance company and, therefore, apparently mistake has been committed by Claims Tribunal. He also submitted that in appeal memo, all contentions are raised by the appellant insurance company and such contentions have not been examined and not considered by the Claims Tribunal and, therefore, according to him, Claims Tribunal has committed gross error in deciding group of claim petitions. Grounds raised by the appellant in memo of appeal are, therefore, referred to as under, for his satisfaction:

(A) That the award passed by learned Tribunal is against law.

(B) That the vehicle involved in the accident is Matador bearing registration No. GJ 14-T 3173 and was driven at the relevant time by original opponent No. 1, Ram alias Jeram Fulabhai Vachhani, who also happens to be the owner of the said vehicle and insured with the appellant herein. Policy has been produced on the record of the case at Exh. 162.

(C) It transpires that the vehicle involved is a delivery van described in the petition as carrier Tempo No. GJ 14-T 3173, i.e., a goods vehicle.

(D) It further transpires that at the time when the accident occurred, about 20 persons were travelling in the said vehicle out of which three persons died and 15 persons sustained injuries.

(E) The heirs of the deceased have filed following M.A.C. petitions for the purpose of compensation:

M.A.C.P. No. 189 of 1995;

M.A.C.P. No. 190 of 1995; and

M.A.C.P. No. 191 of 1995

Rest of the petitions, i.e., M.A.C.P. Nos. 192 to 199 of 1995; 277 to 279 of 1995 and 376 to 379 of 1995 were filed by the injured claimants for various amounts. The R.C. book which has been produced on the record shows that the vehicle is a goods vehicle. The claimants have also described the vehicle as a goods vehicle.

(F) Section 2 (14) of the Motor Vehicles Act defines ''goods carriage'' which reads as under:

''goods carriage'' means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.

(G) Section 2 (16) defines the ''heavy goods vehicle''; section 2 (21) defines ''light motor vehicle'' and section 2 (23) defines ''medium goods vehicle''. On a conjoint reading of the aforesaid definitions, it will be clear that the present vehicle which is involved in the accident was a goods vehicle whose gross weight was 6000 kg.

(H) The appellant submits that in the written statement, it has been specifically pleaded that ''vehicle involved in the accident was a goods vehicle meant for carrying goods only and having seating capacity of one person only. Opponent No. 1 who is driver-cum-owner of the said vehicle was using the vehicle at the time of the accident in violation of R.T.O. permit and terms of the policy. From the F.I.R. and other policy papers, it transpires that 50 persons were travelling as passengers unauthorisedly''. In any case, as per the rules framed under Gujarat Motor Vehicles Rules, the vehicle was a light vehicle and as per the definition of section 2 (21) not more than two persons including the driver can travel in the same.

(I) The appellant submits that in a heavy motor vehicle whose gross unladen weight exceeds 12000 kg, the rules provide for carriage of persons to the extent of 7. In view of the aforesaid position that 18 claim petitions have been filed, it is clear that more than the prescribed number of persons were travelling in the goods vehicle.

(J) The learned Tribunal erred in raising the question whether opponent No. 2 is liable to compensate. The learned Tribunal further erred in answering in the affirmative.

(K) The learned Tribunal has relied on the decision in New India Assurance Company Vs. Shri Satpal Singh and Others, for holding the appellant insurance company liable. The appellant submits that the said decision deals with gratuitous passengers. In the present case, the claimants have admitted that the persons were travelling with their goods as paid passengers. In view of the admitted position, the Tribunal relying on the said decision holding the appellant insurance company liable is against law.

(L) The learned Tribunal in para 3 very cryptically decides the issue. It is further interesting to note that the learned Tribunal has taken very lightly the contention of the insurance company and the decision rendered for the purpose of computation but records no reasoning or finding but merely takes the amount of compensation and decisions. It appears that the Tribunal has not dealt with the case according to law.

(M) The appellant therefore prays that the award passed in the present M.A.C. Petition No. 189 of 1995 in the sum of Rs. 1,68,000 is misconceived, untenable and against law and requires to be set aside.

(N) Such other arguments as may be urged at the time of final hearing.

He also relied on decision of Apex Court in case of Chimajirao Kanhojirao Shirke and Another Vs. Oriental Fire and General Insurance Co. Ltd., He submitted that Apex Court has considered that certain contentions were raised in written statement but argument has been made by lawyer for party differently and different point was raised even in such circumstances, Claims Tribunal must consider contentions raised in written statement. Relying on head note, he submitted that insurance company has deposited entire amount as per directions issued by this court on 2.8.2000 in Stay Application Nos. 10865 to 10880 of 2000. Division Bench has passed interim order disbursing 20 per cent in favour of claimants and permitted to withdraw 20 per cent with condition of supplying security to the satisfaction of the court. 80 per cent amount is invested by Claims Tribunal as per directions issued by Division Bench of this court on 2.8.2000 and, therefore, he submitted that in respect of 20 per cent which has been disbursed in favour of thee claimants, directions may be given to the Claims Tribunal that said 20 per cent can be recovered from owner by appellant and remaining 80 per cent amount with whatever interest accrued may be ordered to be refunded back to the appellant insurance company. In short, his submission is that appellant insurance company is not liable to pay compensation to claimant and decision of Claims Tribunal is contrary to law laid down by Apex Court as referred to above. Except that, no further submission is made by learned advocate Mr. Vibhuti Nanavati before this court and no other decision except the decisions referred to above was cited by him before this court in support of contentions recorded hereinabove.

On the other hand, learned advocate Mr. K.L. Dave appearing for respondents-claimants submitted that except three matters where persons died, in rest of matters, small amounts are involved, may be less than Rs. 30,000 to Rs. 20,000 which has been awarded by Claims Tribunal. He further submitted that it was not a marriage party but it was a ''dhag'' which had gone to take daughter of Dahyabhai along with goods and, therefore, decision of Supreme Court in case of National Insurance Co. Ltd. Vs. Rattani and Others, is not applicable to facts of present case. He placed on record copy of F.I.R. Against that learned advocate Mr. Vibhuti Nanavati for appellant submitted that in case of National Insurance Co. Ltd. Vs. Prema Devi and Others, and Rattani (supra) no order was passed to pay amount of compensation to claimants and then to recover such amount from the owner of vehicle and, therefore, no such order can be passed in present case by this court.

I have considered submissions made by both the learned advocates. I have also perused common award passed by Claims Tribunal. Just to highlight the compensation which has been awarded by Claims Tribunal in respect to each claim petition and conduct of appellant insurance company to challenge meagre amounts awarded by the Tribunal in this case, operating portion of impugned award passed by the Claims Tribunal is reproduced as under:

The claimants in each of the petitions of this group matters shall recover an amount of compensation from both the opponents, jointly and severally, with running interest at the rate of 12 per cent per annum from the date of application till realization, with proportionate costs, as enumerated hereinbelow:

M.A.C.P. No.

:

Amount

(1) 189 of 1995

:

Rs. 1,68,000

(2) 190 of 1995

:

Rs. 72,000

(3) 191 of 1995

:

Rs. 1,20,000

(4) 192 of 1995

:

Rs. 22,400

(5) 193 of 1995

:

Rs. 2,000

(6) 194 of 1995

:

Rs. 16,900

(7) 195 of 1995

:

Rs. 20,800

(8) 196 of 1995

:

Rs. 1,000

(9) 197 of 1995

:

Rs. 21,100

(10) 198 of 1995

:

Rs. 22,800

(11) 199 of 1995

:

Rs. 23,700

(12) 277 of 1995

:

Rs. 58,300

(13) 278 of 1995

:

Rs. 43,030

(14) 279 of 1995

:

Rs. 38,000

(15) 376 of 1995

:

Rs. 31,18,700

(16) 377 of 1995

:

Rs. 78,500

(17) 378 of 1995

:

Rs. 66,500

(18) 379 of 1995

:

Rs. 77,400

Common award has been passed by Claims Tribunal on 25.4.2000 and accident occurred on 22.2.1995. Amendment made in the Motor Vehicles Act came into effect from 14.11.1994, therefore, in respect of accident dated 22.2.1995, provisions of amended Act, that is, section 147 would apply to facts of present case. Therefore, section 147 of amended Act is quoted as under:

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.

In the light of this background, the Claims Tribunal has decided claim petitions as discussed in para 3 of the award which is quoted as under:

(3) In this matter, looking to the oral evidence which is led by the claimants, ten witnesses were examined which is duly corroborated with the facts narrated in the F.I.R. and the panchnama, and the said vehicle is insured with opponent No. 2 which is a goods vehicle, for which the insurance company argued that as there is a goods vehicle, the insurance company is not liable for which, New India Assurance Company Vs. Shri Satpal Singh and Others, is cited, the insurance company is liable to pay the compensation. The opponents are held jointly and severally liable.

Except submission as referred in para 3, the learned advocate Mr. Hirpara appearing for insurance company before Claims Tribunal has not made any other submission before Claims Tribunal. Only submission was made that there is a goods vehicle involved in accident and insurance company is not liable. Except that, no other submission is made by learned advocate Mr. Hirpara on behalf of the insurance company before the Tribunal. Therefore, it is clear that contentions raised by appellant in its written statement and contentions raised by appellant in its appeal memo before this court were not raised by appellant insurance company before Claims Tribunal while arguing matter. Claims Tribunal has not committed any error in not deciding contentions which are not raised by appellant insurance company before Claims Tribunal while arguing the matter though it might have been raised by it in its written statement. During the course of arguments before Claims Tribunal, only one contention was raised or pressed into service by appellant insurance company against which Claims Tribunal has relied upon decision of Supreme Court in case of New India Assurance Company Vs. Shri Satpal Singh and Others, The Supreme Court has considered provisions of the old Act and amendment made in Motor Vehicles Act in 1994 and made following observations in paras 5 to 10 which are quoted as under, as relied upon by Claims Tribunal:

(5) Learned counsel for the appellant banked on the decision of a three-Judge Bench of this court in Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, to disclaim liability on the premise that the victim of the accident was gratuitous passenger in the vehicle covered by the insurance policy. But the said decision was rendered u/s 95 of the Motor Vehicles Act, 1939 (which can be referred to as ''the old Act''). The aforesaid provision contained a rider in clause (ii) of the proviso to sub-section (1) which is absent in the corresponding provision in the new Act. To pinpoint the said distinction we extract section 95 (1) of the old Act as under:

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 or by a co-operative society allowed u/s 108 to transact the business of an 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 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, 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 vehicle, being carried in the vehicle; or

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises; or

(iii) to cover any contractual liability.

As per the proviso when read with its clause (ii) it is clear that the policy of insurance shall not be required to cover liability in respect of the death of or bodily injury to persons who were gratuitous passengers of that vehicle. This court has held in Pushpabai Purshottam Udeshi v. Raniit Ginning and Pressing Co., 1977 ACJ 343 (SC), as under:

(21) Sections 95 (a) and 95 (b) (i) of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960 and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death 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. The plea that the words ''third party'' are wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers is made clear by the proviso to sub-section which provides that a policy shall not be required:

xxx

(22) Therefore, it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As u/s 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured, the plea of the counsel for the insurance company will have to be accepted and the insurance company held not liable under the requirements of the Motor Vehicles Act.

(6) In fact the said ratio has been approved by the three-Judge Bench in Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, At the same time, learned Judges pointed out that the old Act is now repealed by the new Act and section 147 of the new Act corresponding to section 95 of the old Act has been substantially altered and hence the above interpretation of section 95 of the old Act will govern the cases which have arisen under the old Act.

(7) Proviso to section 147 (1) of the new Act shows that it is a recast provision by placing the erstwhile clause (iii) as the present clause (ii). In other words, clause (ii) of the proviso to section 95 (1) of the old Act is totally nonexistent in the proviso to section 147 (1) of the new Act.

(8) u/s 147 of the new Act, the policy must be a policy which 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;

(9) The proviso to the said sub-section is not relevant here as it pertains to death of or bodily injury to the employee mentioned therein. Sub-section (2) provides that a policy of insurance shall cover any liability incurred in respect of any accident, up to 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:

Provided that any policy of insurance issued with any limited liability and in force immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

Hence, under sub-section (2) there is no upper limitation for the insurer regarding the amount of compensation awarded in respect of death or bodily injury of a victim of the accident. It is, therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle. The legislature has also taken care of even the policies which were in force on the date of commencement of the Act by specifically providing that any policy of insurance containing any limit regarding insurer''s liability shall continue to be effective for a period of four months from commencement of the Act or till the date of expiry of such policy, whichever is earlier. This means, after the said period of four months a new insurance policy consistent with the new Act is required to be obtained.

(10) The result is that under the new Act an insurance policy covering third party risk is not required to exclude the gratuitous passenger 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 liability of insurance company in respect of any accident which occurred or would occur after the new Act came into force.

The date on which matter was considered and award was passed by Claims Tribunal, at that time, this was the only decision on question decided by the Apex Court in case of New India Assurance Company Vs. Shri Satpal Singh and Others, dated 2.12.1999 and there was no other decision contrary to Satpal Singh''s case which has been considered by Claims Tribunal, therefore, Claims Tribunal has considered the decision which was recent at that relevant time holding field in respect of question considered in the case of Satpal Singh (supra) where Supreme Court has observed as under:

Under the new Act, an insurance policy covering third party risk is not required to exclude gratuitous passenger 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.45

In view of these observations made by Supreme Court while considering effect of old Act and new amendment made in Motor Vehicles Act where it has been held that under new Act, insurance policy covering third party risk is not required to exclude gratuitous passenger in vehicle, no matter that the vehicle is of any type or class. Therefore, gratuitous passengers travelling in goods vehicle are also covered as per amended Act having effect from 14.11.1994 and, therefore, the risk of such passengers is covered under the insurance policy and risk of such passengers must be satisfied by insurance company as per amended Act as considered by Apex Court in case of New India Assurance Company Vs. Shri Satpal Singh and Others, which was holding field at the relevant time when matter was decided by Claims Tribunal.

Decision of Apex Court in case of New India Assurance Company Vs. Shri Satpal Singh and Others, has been overruled by three-Judge Bench of Apex Court in case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, What would be the effect, that has been considered by Apex Court in case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, Relevant observations made by Apex Court in Head Note A and B are quoted as under:

(A) Motor Vehicles Act, 1988 (59 of 1988)--Section 147 [as amended by the Motor Vehicles (Amendment) Act, 1994]--Motor vehicles--Liability of insurer--Death of gratuitous passenger carried in goods vehicle--Addition of words ''including the owner of the goods or his authorised representative carried in the vehicle'' in section 147 by way of 1994 Amendment--Effect--Scope thereof is not extended to cover gratuitous passengers for whom no insurance policy was envisaged--Said legal position will have prospective effect-- Relief moulded.

The effect of the 1994 Amendment on section 147 is unambiguous. Where earlier, the words ''any person'' could be held not to include the owner of the goods or his authorised representative travelling in the goods vehicle, Parliament has now made it clear that such a construction is no longer possible. The scope of this rationale does not, however, extend to cover the class of cases where gratuitous passengers for whom no insurance policy was envisaged, and for whom no insurance premium was paid, employ the goods vehicle as a medium of conveyance. By reason of the 1994 Amendment what was added is ''including the 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 inasmuch as expression ''any person'' contained in sub-clause (i) of clause (b) of sub-section (1) of section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.

Judgment given prospective effect. To prevent prejudice to claimant, insurer directed to pay awarded amount to the claimant and recover it from the owner.

For purpose of recovery, he may initiate proceedings before executing court as if dispute between insurer and owner was subject-matter before Tribunal.

(Paras 11, 12, 13, 17, 20)

(B) Interpretation of Statutes--Doctrine of suppression of mischief rule--Applicability of--Goods carriage carrying any passenger not contemplated under Motor Vehicles Act, 1988--1994 Amendment to section 147 of the Act 1988 adding words ''including owner of goods or his authorised representative carried in the vehicle''--Such amendment was made by Parliament consciously to include owner of goods or his authorised representative carried in goods vehicles in liability of owner of vehicle to insure it compulsorily--Motor Vehicles Act (59 of 1988), section 147 (as amended in 1994).

(Para 14)

Relevant discussion made by Apex Court in paras 20 and 21 of said decision is reproduced as under:

(20) 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 authorised representative remains the same. Although the owner of the goods or his authorised 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 any premium was paid to the extent of the benefit of insurance to such category of people.

(21) The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this court in New India Assurance Company Vs. Shri Satpal Singh and Others, The said decision has been overruled only in New India Assurance Co. Ltd. Vs. Asha Rani and Others, We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.

Contention is raised by the learned advocate Mr. Vibhuti Nanavati on behalf of appellant insurance company that law laid down by Apex Court''s three-Judge Bench in case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, is made applicable only to facts of that case alone and it is not applicable to other cases. Such contention cannot be accepted considering ratio laid down by the Supreme Court in case of Baljit Kaur (supra). In para 21 of the decision, relevant observations to that effect have been made which are quoted as under:

The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect.

(Emphasis supplied)

Therefore, decision of Apex Court overruling earlier decision in the case of New India Assurance Company Vs. Shri Satpal Singh and Others, is having prospective effect and it is not mere observations made by Apex Court on facts of the case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, Supreme Court has, in terms, made it clear while clarifying the legal position between Satpal Singh (supra) and New India Assurance Co. Ltd. Vs. Asha Rani and Others, and in terms clarified legal position which shall have prospective effect, therefore, decision which has been relied upon by Claims Tribunal on the date on which award was passed, on that day, there was no other decision contrary to hold field at the relevant time, therefore, while overruling decision of case of Satpal Singh (supra) in case of Asha Rani (supra), that legal position has been clarified by Apex Court that it will be having prospective effect and, therefore, award which has been passed by the Claims Tribunal is not required to be disturbed and the contention raised by learned advocate Mr. Nanavati cannot be accepted. In fact, ratio which has been laid down by Apex Court in case of Baljit Kaur (supra) which is binding on this court under Article 141 of the Constitution of India as a binding precedent and, therefore, decision in any subsequent case which has been relied upon by the learned advocate Mr. Nanavati as referred to above in his submission cannot be made applicable to facts of the present case because from decision of Apex Court in case of Baljit Kaur (supra), it is clear that overruling of decision of Satpal Singh (supra), in case of Asha Rani (supra), is having prospective effect and, therefore, in view of that, whatever award passed by Claims Tribunal relying upon decision of Satpal Singh (supra), cannot be disturbed by this court. Therefore, according to my opinion, decision of Apex Court which has been relied in case of National Insurance Co. Ltd. Vs. Rattani and Others, as well as Apex Court decision in case of National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268 (SC) ; Chimajirao Kanhojirao Shirke and Another Vs. Oriental Fire and General Insurance Co. Ltd., as well as decision of Supreme Court in case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, are not applicable to facts of this case in view of ratio laid down by Apex Court in case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others,

The learned advocate Mr. Vibhuti Nanavati relied upon contentions raised in para 5 of written statement filed by insurance company before Claims Tribunal and also relied upon grounds raised by appellant in its appeal memo before this court while arguing matter before this court and his grievance is that these contentions have not been examined by the Claims Tribunal though specifically raised in its written statement by appellant. Such contention raised by learned advocate Mr. Nanavati cannot be accepted simply on the ground that such contentions are not reflected in the award made by Claims Tribunal, meaning thereby that contentions if they do not find place in the award, then, it amounts to presumption that no such contention has been raised by appellant before Claims Tribunal. This court must accept record of Claims Tribunal being conclusive proof and any other submission or contention to the contrary cannot be accepted as decided by Apex Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, wherein the Apex Court has taken the view that the Judge''s record is conclusive, neither lawyer nor litigant may claim to contradict it except before the Judge himself but nowhere else. Relevant observations made by the Apex Court in paras 4, 5, 6 and 7 of the said judgment are reproduced as under:

(4) When we drew the attention of the learned Attorney General to the concession made before the High Court, Mr. A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Mr. Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us, judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. ''Judgments cannot be treated as mere counters in the game of litigation'' [per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136]. We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to ''the fact that the statement made with regard to his conduct was a statement that had been made in error'' [per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30]. That is the only way to have the record corrected. If no step is taken, the matter must necessarily end there. Of course, a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

(4-A) In R. v. Mellor, 1858 (7) CCC 454, Martin B was reported to have said: ''We must consider the statement of the learned Judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of court which of itself implies an absolute verity''.

(5) In The King Emperor Vs. Barendra Kumar Ghose, Page, J. said:

...these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animadversion.

(6) In Sarat Chandra Maiti and Others Vs. Bibhabati Debi and Others, Sir Asutosh Mookherjee explained what had to be done:

It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge, without delay and ask for rectification or review of the judgment.

(7) So, the Judges'' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge, himself, but nowhere else.

Similarly, in the matter of Daman Singh and Others Vs. State of Punjab and Others, five-Judge Bench of the Hon''ble Apex Court observed as under in para 13 of the said judgment:

(13) The final submission of Mr. Ramamurthi was that several other questions were raised in the writ petition before the High Court, but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal, etc., but later, confine themselves in the course of arguments to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before the court or not?

Similar view has been taken by the Apex Court in Shankar K. Mandal and Others Vs. State of Bihar and Others, Paras 10, 11 and 12 of said decision are quoted as under:

(10) It is not open for the appellant to take such stand before this court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the course to be adopted is well-known.

(11) If really there was no concession, or a different stand was taken, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, In a recent decision Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd., AIR 2002 SCW 4939, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this court to the contrary.

(12) It is also not open to contend that a plea raised was not considered. In Daman Singh and Others Vs. State of Punjab and Others, it was observed (in para 13) as follows:

The final submission of Mr. Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memorandum of appeal, etc., but later confine themselves, in the course of argument, to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered, it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?

Apex Court has delivered judgment on 21.11.2008 in case of Md. Rafique v. State of West Bengal 2008 (15) SCALE 15, wherein it was observed by Apex Court that "if a party thinks that the happenings in court have been wrongly recorded in a judgment it is incumbent upon the party while the matter is still fresh in the minds of the Judges to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this court to the contrary". Relevant discussion made in para 5 of said decision is reproduced as under:

(5) It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence, and it is not to be encouraged. If really there was no concession, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, In a decision in Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd., AIR 2002 SCW 4939 , the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party while the matter is still fresh in the minds of the Judges to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this court to the contrary. The above position was highlighted in Roop Kumar Vs. Mohan Thedani,

(Emphasis added)

The contention raised by learned advocate Mr. Vibhuti Nanavati has been examined by this court, but, apart from that, facts of this case are also to be kept in mind which is not much in dispute between the parties. Date of accident, persons those who were travelling in Matador, they were travelling along with their goods, means they were travelling as owner of goods. These facts have been disclosed by claimants in their claim petitions. These facts have also been disclosed by claimants in their evidence. Appellant insurance company has not disputed these facts by leading proper evidence before the Claims Tribunal. The accident has occurred after amendment made in Motor Vehicles Act on 14.11.1994. Section 147, in definition of ''any person'' clarified which includes owner of goods or representative of owner of goods for which also insurance company is statutorily liable irrespective of the fact whether risk of such persons is covered in insurance policy or not. Liability of insurance company, persons those who were travelling in goods vehicle as owner of goods being statutory liability, insurance company must have to satisfy such liability in case if any accident occurred. Therefore, persons who were travelling as owner of goods in a goods vehicle are considered to be third party and their liability is upon insurance company which cannot be denied by insurance company because it is statutory liability incurred by insurance company while accepting amount of premium after amendment made in Motor Vehicles Act in 1994. Therefore, considering facts as they are, otherwise also, appellant insurance company is liable to pay compensation to claimants because persons who were travelling, they were travelling in the goods vehicle as owner of goods because that fact has been disclosed in the claim petition, F.I.R., as well as in their evidence which has not been disproved by the insurance company by leading proper evidence before Claims Tribunal. Claims Tribunal, Junagadh, while giving details, also observed that these persons were travelling along with goods belonging to daughter of Dahyabhai which has been called as goods relating to kariavar means dowry after paying fare of Rs. 50 to owner and driver of Matador involved in accident, therefore, persons who were travelling may be considered as owner of goods or representative of owner of goods and their risk is covered u/s 147 of Motor Vehicles Act after amendment made in Motor Vehicles Act in the year 1994. No doubt this aspect has not been dealt with by Claims Tribunal, Junagadh, but it has been found from facts gathered by this court from award and, therefore, this being an additional ground to hold liable appellant insurance company statutorily for making payment of compensation to claimants.

In view of above discussion made by Supreme Court, contention raised by learned advocate Mr. Nanavati cannot be accepted. According to my opinion, Claims Tribunal has rightly decided the matter relying upon decision of Apex Court in case of Satpal Singh, 2000 ACJ 1 (SC). Claims Tribunal has not committed any error when law has been decided by Apex Court in Baljit Kaur, 2004 ACJ 428 (SC), where legal position was made clear, therefore, according to my opinion. Claims Tribunal has not committed any error which would require interference of this court. According to my opinion, Claims Tribunal has rightly relied upon decision which was binding and holding field at the relevant time as precedent under Article 141 of the Constitution of India. Therefore, none of the contentions raised by learned advocate Mr. Nanavati can be accepted by this court and same are, therefore, rejected. Except that, on quantum, no contention has been raised by learned advocate Mr. Nanavati before this court. Therefore, this court has not examined that part. Accordingly, for the reasons recorded above, there is no substance in these appeals and same are required to be dismissed.

Accordingly, these appeals are dismissed having no substance. Interim relief granted by this court, if any, shall stand vacated. The Claims Tribunal, Juangadh is directed to pay amount of compensation which has been deposited by the insurance company accruing with interest, if any, to the respondents-claimants by way of an account payee cheque drawn in favour of respective respondents-claimants after proper verification without any delay. There shall be no order as to costs.