VEENADECI JALAN Vs. BOREGOWDA

JUDGEMENT

(1.) HEARD the counsel for the appellant and the counsel for respondents.

(2.) THE present appeal is filed by the owner of the vehicle involved, in challenge to the award for payment of compensation on the ground that the liability has been fastened on him. It is his primary contention that as a result of the accident an injury has occurred to a gratuitous passenger carried in a goods vehicle. The Tribunal has proceeded on the footing that the insurer does not cover the risk of the gratuitous passenger carried in a goods vehicle and has proceeded to fasten the entire liability on the owner. The counsel for the appellant would submit that though in terms of S. 147 of the Motor Vehicles Act, 1988, as it stood prior to the Amendment Act No. 54 of 1994, the insurer was not required to cover the risk of a charterer of the goods vehicle or his representative, or any gratuitous passenger in a vehicle. The terms of the policy in the case on hand, under which the risk was covered, included the risk to non-fare paying passengers on the collection of additional premium paid by the appellant. This was in terms of an endorsement "imt 14," which is one of the conditions under which the policy is issued and the same reads as under :-

(3.) PER contra, the learned counsel for the insurance Company would contend that the policy is issued in terms of the requirement under law. Admittedly, the accident has occurred in the year 1993 and well prior to the amendment Act 54 of 1994. It is only after the amendment that S. 147 of the Motor Vehicles Act requires the appellant to cover even the risk of the owner of the goods or his representative, carried in a goods vehicle. The law does not require the insurer to cover the risk of a gratuitous passenger in a goods vehicle. The injured person in the accident being a gratuitous passenger, the liability did not require coverage of any such risk. The contention of the appellant that additional premium was paid to cover the risk of non-fare paying passengers would not include a gratuitous passenger. Under the said condition IMT 14, the risk to be included in respect of the owner of the goods and his representative or a person connected with the journey, which pre-supposes that the Charterer having hired the vehicle the same would be under his custody and would only contemplate carriage of persons engaged to load and unload the vehicle and cannot include third parties such as a gratuitous passenger and since the person admittedly was not there at the instance of the charterer of the vehicle, his presence could not be said to be connected with the journey as he was an outsider and would not be covered under the risk which is required to be covered by payment of additional premium. In this regard reliance is placed on the judgment of this Court in New India Assurance company, Bijapur v. Smt. Kusum, reported in 2003 (3) TAC 423 (Kant) which followed the judgment of Asharani's case to hold that prior to 1994, the expression 'any person' could not include the owner of the goods and the strict interpretation of S. 147, as it stood prior to amendment, would certainly not include a gratuitous passenger. The endorsement imt 14 certainly does not, therefore, take into its ambit unauthorised passengers. Therefore, the counsel would submit that the reliance placed on endorsement IMT 14 would not advance the appellant's case either in terms of the liability as it stood prior to Amendment act 54 of 1994 or subsequently. As a gratuitous passenger's risk is never covered by the policy issued by the insurer. The non-fare paying passenger in respect of whom additional premium is paid can only mean such persons connected with the journey of the insured or charterer of the vehicle. The gratuitous passenger would therefore be outside the scope of such risk.