Ram Chander and another vs Oriental Insurance Co.Ltd.

H.S. Bedi, J. (Oral)

This order will dispose of F.A.O. No. 1086 of 2002 (Ram Chander & another v. Oriental Insurance Co. Ltd. & another) and F.A.O. No. 1053 of 2001 (Ashwani Kumar & Others v. Bhajan Kaur & others) as the law points involved in both these cases are the same.

The facts have been taken from F.A.O. No. 1068 of 2002 (Ram Chander & another v. Oriental Insurance Co. Ltd. & another). On 2.4.1998 at about 2.45 A.M. claimant Rajbir Singh was travelling in a truck bearing No. HR46/2575, being driven by respondent No. 1 Mohinder Singh and owned by Ram Chander, respondent No. 2 and insured with the Oriental Insurance Company, respondent No. 3. The aforesaid truck met with an accident with another truck as the offending truck was being driven rashly and negligently and Rajbir Singh claimant sustained injuries. He thereafter filed a claim petition praying that he was entitled to Rs. 3,50,000/ by way of compensation. The respondents filed their written statements, on which the following issues were framed :

Whether the accident in question took place due to rash and negligent driving of truck No. HR46/2575 by its driver Mohinder Singh respondent No. 1 ? OPP.

If issue No. 1 is proved, to what amount of compensation, the petitioner is entitled to and from whom ? OPP.

Relief.

The Tribunal relying on the evidence of the claimant''s witnesses held that the accident had happened on account of the rash and negligent driving by the driver of the offending truck. On issue No. 1, the Tribunal held that the accident had occurred due to the rash and negligent driving of the truck by respondent No. 1 and decided this issue in favour of the claimant. On issue No. 2 it was found that the claimant was entitled to a sum of Rs. 1,51,000/ by way of compensation on account of his injuries. The plea of the Insurance Company that as Rajbir had been travelling in the truck as a gratuitous passenger and was, therefore, not entitled to any payment from the Insurance Company, was accepted in the light of the judgment of the Hon''ble Supreme Court in New India Assurance Co. Ltd. v. Asha Rani & Ors., 2001(3) Punjab Law Reporter 637 : 2001(4) RCR(Civil) 294 (SC). An award in favour of the petitioner and against respondent Nos. 1 and 2 was accordingly made by the Tribunal, whereas the Insurance Company was absolved from the payment of compensation. Aggrieved by the aforesaid award of the Tribunal, the present appeals have been filed by the driver and the owner of the truck, Mohinder Singh and Ram Chander, respectively.

Their primary grievance is that in the light of the subsequent judgments of the Hon''ble Supreme Court, the Insurance Company was liable to pay the compensation even in respect of injuries suffered by a gratuitous passenger.

I have heard the learned counsel for the parties and have gone through the record.

No serious challenge has been made by the appellant''s counsel with regard to the finding of the negligence that has been recorded.

Mr. Harsh Kinra, the learned counsel appearing for the appellants in F.A.O. No. 1086 of 2002 has strenuously urged that the award of the Tribunal insofar that it absolved the Insurance Company of its liability was erroneous. In this connection, he has placed reliance on the judgments of the Hon''ble Supreme Court in Ramesh Kumar v. National Insurance Co. Ltd., 2001 ACJ 1565 : 2001(4) RCR(Civil) 680 (SC), New India Assurance Company v. Shri Satpal Singh and others, 2000(1) PLR 464 : 2000(1) RCR(Civil) 274 (SC) and finally the decision of the Constitutional Bench in New India Assurance Co. Ltd. v. Asha Rani and others, 2003(2) Supreme Court Cases 223 : 2003(1) RCR(Civil) 671 (SC). The learned counsel for the respondents have also relied on the same set of judgments and in particular Satpal Singh''s case to contend that as a matter of fact the Hon''ble Supreme Court had clearly upheld the earlier view that gratuitous passengers would not be covered under the insurance policy and as such the Insurance Company was not liable to any compensation.

In Ramesh Kumar''s case (supra), the Hon''ble Supreme Court had dealt with three categories, firstly, those which arose out of accidents which had happened when the Motor Vehicles Act, 1939 was in force; secondly, those which had happened after the enforcement of the Motor Vehicles Act, 1988 but prior to its amendment in 1994, whereby the position with regard to the persons travelling even as a gratuitous passengers was clarified and the Insurance Company was unequivocally held liable for payment of compensation, and thirdly, those cases in which the accident had happened under the new Act of 1988 but after its amendment in 1994. The Bench accordingly held that on a true interpretation of the Act of 1939 vizaviz the Act of 1988, the Insurance Company was liable to pay compensation with respect to accidents even in the case of gratuitous passengers. It appears that the matter did not end there and was taken up by another Bench of the Hon''ble Supreme Court in cases which pertained to the second category, i.e., where the accident happened after coming into force of the Act of 1988, but before its amendment in 1994. The Hon''ble Supreme Court observed that even in such cases the Insurance Company would be liable to pay the compensation amount. The matter came up again before the Hon''ble Supreme Court in Asha Rani''s case (supra) when it was the observed that the judgment in Sat Pal''s case (supra) required reconsideration and the matter was accordingly referred to a Larger Bench. The Larger Bench accordingly in its decision reported as New India Assurance Co. Ltd. v. Asha Rani and others, 2003(2) Supreme Court Cases 223 observed in para 2 as under :

"The question that arises in this batch of appeals is whether the insurer is liable to pay compensation to the dependants of the deceased passenger, while the deceased passenger was travelling in a goods vehicle and that vehicle met with an accident, on account of which the passenger died or suffered bodily injury. Originally, when the bunch of appeals was being heard, a Bench of this Court by an order dated 27.3.2001, came to the conclusion that all the appeals fall in three categories Category (i) being those cases which are covered by the provisions of the Motor Vehicles Act, 1939; Category (ii) are the cases which are covered by the Motor Vehicles Act, 1988, prior to the amendment of 1994; Category (iii) are those cases which fall after the amendment of 1994. When the matters were finally heard, a Bench delivered judgment in respect of cases under Categories (i) and (iii) above on 17.8.2001. But so far as the cases falling under Category (ii), namely, which are covered under the Motor Vehicles Act, 1988, prior to its amendment in 1994, it was felt that the decision of the Court in Satpal Singh case requires reconsideration by a larger Bench and that is how this bunch of appeals had been placed before a threeJudge Bench. Thus, in turn, necessitates interpretation of the provisions in Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") as it stood prior to its amendment in 1994. It may be stated that the provisions of Section 147 of the Act correspond to Section 95 of the Motor Vehicles Act, 1939."

Relying on the aforesaid observation, the Hon''ble Supreme Court held that Satpal Singh''s case had not been correctly decided. It is, therefore, clear from the above that Ramesh Kumar''s case (supra) still holds the field and that pertains to the category of cases in which the accident had happened after the amendment of 1994.

In this view of the matter, the appeals filed by the owner and the driver are allowed and it is directed that the Insurance Company will also be liable for the compensation jointly and severally along with the owner and the driver.

Appeals allowed.