ORIENTAL INSURANCE CO LTD Vs. IRAWWA

JUDGEMENT

(1.) In this appeal presented under Section 173 of the Motor Vehicles Act, 1988 against an interim award made by the Motor Accidents Claims Tribunal, Belgaum, on a claim petition presented under Section 166 of the Granting compensation of Rs. 25,000-00 under Section 140 of the 1988 Act in respect of death of a passenger travelling in a goods carriage together with his goods as a result of a motor accident which took place on 6-11-1990, that is, after the commencement of the 1989 Act, the following question of law arises for consideration : Whether under an Insurance Policy taken in conformity with the requirement of Section 147 of the Motor Vehicles Act, 1988, the Insurance Company is liable to pay compensation in respect of death or bodily injury to any passenger travelling in a 'goods carriage' whether as a hirer or otherwise?

(2.) Brief facts of the case are these :- One Suresh was travelling in a goods carriage bearing Registration No. MEH 5015. The goods carriage was plying from Belgaum to Bagewadi on 6-11-1990. The vehicle met with an accident at about 16-15 hours. A claim petition was presented by the wife of the deceased Suresh claiming a compensation of Rs. 3,50,000/- for the death of Suresh in the said accident. In the claim petition, the claimants also claimed interim compensation of Rs. 25,000/- payable on the ground of "No Fault Liability" under Section 140 of the Motor Vehicles Act, 1988, which corresponds to Section 92-A of the Motor Vehicles Act, 1939. As regards the liability of the Insurance Company under Section 92-A of the 1939 Act, a question of law had been referred to a Full Bench of this Court in United India Insurance, Company v. Immam Aminasab Nadar, ILR 1990 Kant 16: (AIR 1990 Kant 156). The Full Bench of this Court, after analysing the provisions of Section 92-A of the 1939 Act, which for the first time created No Fault Liability and all the related provisions, held that in order to fix the liability on the Insurance Company in a given case, the following findings of fact must be arrived at by the Tribunal, namely, (1) The vehicle concerned was involved in the accident, and (2) The risk giving rise to the claim petition was covered by the insurance policy covering the vehicle involved in the accident. In this case there was no dispute that the vehicle in question, namely, MEH 5015 was involved in the accident. The Tribunal while considering the prayer of relief under Section 140 of the 1988 Act, proceeded to hold that as there was insurance policy covering the vehicle on the date of accident and as the deceased was travelling in a goods vehicle as owner of the goods, the Insurance Company was liable to pay compensation of Rs. 25,000/- payable under Section 140 of the 1988 Act. In coming to the conclusion that the risk was covered by the Insurance Policy, the Tribunal followed the Division Bench Judgment of this Court in T. N. Renukappa v. Fahmida, AIR 1980 Kant 25 in which this Court had held that if a person was travelling in a goods vehicle along with his goods for the carrying of which he had hired the goods vehicle, the risk arising out of the death of or injury to such a passenger would be covered by an insurance policy taken in conformity with Section 95 of the 1939 Act. Accordingly, the Tribunal made an award for Rs. 25,000/- payable under Section 140 of the 1988 Act on the ground of no Fault Liability and made both the owner of the vehicle, who is respondent-6 in the appeal as well as the appellant-Oriental Insurance Company liable to pay the said amount. Aggrieved by the said award, the appellant Insurance Company has presented this appeal.

(3.) The main ground urged by Sri Shankar, learned Counsel for the appellant in this appeal is that in the Full Bench decision of this Court in National Insurance Company v. Dundamma, ILR 1991 Kant 2045 : AIR 1992 Kant 3, the Division Bench decision in Renukappa's case (AIR 1980 Kant 25) on which the Tribunal relied, has been overruled and it was held that the Insurance Company was not liable to pay compensation in respect of passengers in a goods vehicle other than the employees or coolies travelling in a goods vehicle and even in respect of them the risk stands covered only to the extent of the risk required to be covered by Section 95 of the 1939 Act, which corresponds to Section 147 of the 1988 Act. Learned Counsel pointed out that in respect of passengers travelling in a goods vehicle along with their goods, the Full Bench held that liability of the insurance company to pay compensation should be held to exist by applying the principle of Stare Decisis, as the Division Bench decision of this Court in Channappa Channaveerappa Katti v. Laxman Bhimappa Bajantri, AIR 1979 Kant 93, in which it was held that in view of Clause (ii) of the proviso to Section 95(1) of the 1939 Act, an Insurance Company was liable to pay compensation in respect of death of or bodily injury to passengers travelling in a goods vehicle along with their goods which was followed in Renukappa's case (AIR 1980 Kant 25), held the field for nearly 12 years and it was not expedient to disturb the said position as the 1939 Act has since been repealed by the 1988 Act and in the corresponding Section 147 and there was no provision similar to Clause (ii) of the proviso to Section 95(1) of the 1939 Act which had lead to such an interpretation. He submitted that in view of the Full Bench decision, the appellant was not liable to pay compensation in this case as the decision was a passenger travelling in a goods vehicle, even though he was travelling with his goods and the accident took place on 6-11-1990 after the 1988 Act came into force.