(1.) THIS reference has come up before us in terms of the reference order of a Division Bench dated 12 -09 -2006. The Motor Accidents Claims Tribunal, Thodupuzha had directed award of compensation to the legal representatives of a deceased individual. It was on a finding that a private jeep, wherein he was a traveller, was driven in a negligent manner resulting in the accidental death. The jeep had been registered as a private vehicle, but the finding was that it was used for hire and there was violation of the policy conditions. The Tribunal held that the vehicle owner is liable to pay the amount of compensation, although the initial liability for payment was on the insurer. The insurance company normally would have been liable, however, but was entitled to be exonerated, according to the Tribunal, as there was violation of the policy conditions. It would have been therefore possible for them to proceed against the vehicle owner for reimbursement. The appeal has been filed by the vehicle owner principally contending that the finding about the violation of the policy conditions was without justification. It has been further contended that under Section 147 of the Motor Vehicles Act, the insurer was liable to indemnify him in view of the comprehensive policy taken by him. The accident had taken place on 09 -01 -1995. While the matter was being heard, the Division Bench expressed a doubt as regards the relevancy and impact of certain decisions, and the possible conflict, which might have been there, while adverting to and relying upon them. This is principally because, if the argument of the appellant was acceptable, the deceased could have been treated as a gratuitous passenger. With respect to the liability of the insurer, in such cases, according to the learned Judges, there might have been conflict between the view taken by a Full Bench of this Court reported in Oriental Insurance Co. Ltd. v. Ajayakumar (1999 (2) KLT 886 -FB) on the one hand and United India Insurance Co. Ltd. v. Tilak Singh (2005 (2) KLT 884 -SC). The later decision was one following the judgment of the Supreme Court in New India Assurance Co. Ltd. v. Asha Rani and others (2003 (1) KLT 165 -SC). The reference order concluded as follows:
(2.) MR Mathews Jacob, senior counsel appearing on behalf of the 5th respondent -insurane company, submitted that as violation of policy conditions also is highlighted and accepted already by the Tribunal, after answering the reference it may be proper that the matter be remitted for consideration on merits appropriately. Mr. Raju Joseph appearing for the appellant has no objection to this course to be adopted.
(3.) MR . Mathews Jacob submits that in none of the above cases the position as might be available after the 1994 amendment was relevant, although of course decisions had come after third amendment. According to him, therefore, perhaps only the guidelines generally laid down might be available and this was heavily loaded in favour of the insurer, where it had been consistently observed that a gratuitous passenger in a private/goods vehicle will not be entitled to claim insurance benefits. Although a contra view might be gatherable from the Full Bench, the observations in the later judgments sufficiently obliterated the findings that had been entered into there. According to the counsel, more guidance would be obtained from a decision in National Insurance Co. Ltd. v. Baljit Kaur (2004 (1) KLT 938 -SC), where it had been held that gratuitous passengers in a goods vehicle may not be eligible to be compensated by an insurer as the Court in unambiguous terms indicated that "any person" as appearing in the section would not cover a gratuitous passenger in a goods vehicle. Here also the discussions are in respect of a passenger in a goods vehicle. It may be necessary to tackle the issue also taking notice of the circumstance here that it was a motor car in which passengers were permitted to travel, gratuitous or otherwise. The Full Bench decision of course deals with the issue direct, but we have to examine as to whether the observations of the Full Bench are to be deemed as no more to be considered as valid interpretation by the impact of the later decisions of the Supreme Court in Asha Rani's case and Tilak Singh's case (cited supra).