ORIENTAL INSURANCE COMPANY LTD Vs. DAKSHBEN INDUGIRI GOSAI

JUDGEMENT

(1.) This group of petitions, filed essentially under Article 227 of the Constitution of India, is directed against order passed below Exh. 73 in M.A.C. Petition No. 403 of 2005 and other allied matters by the Motor Accident Claims Tribunal {Aux]. Amreli dated 31/8/2006, hence they are heard together and now they are being disposed of by this common CAV Judgment.

(2.) The proceedings of M.A.C. Petition No. 403 of 2005 and its allied matters have arisen on account of vehicular accident which occurred on 21/2/1994. On that day several persons were travelling in a goods vehicle bearing Registration No. GJ-1-U-7527. It was proceeding towards Savarkundla. On way, there was unmanned railway crossing. When the vehicle approached the railway crossing, the passengers noticed a train coming from the side of village Dhola and going towards Savarkundla. The passengers shouted to halt the vehicle, but respondent no. 3 did not respond to them and continued to drive the vehicle. As a result of the same, while it was crossing the railway track, the train collided with it causing the accident. About five persons lost their lives and others got injured. The victims and/or the relatives of the victims preferred Motor Accident Claim Petitions for claiming compensation before the Motor Accident Claims Tribunal, initially at Bhavnagar but subsequently the proceedings have now been transferred to M.A.C. Tribunal at Amreli. They are numbered as M.A.C. Petitions No. 403 of 2005 to 437 of 2005. 2.1. Pending the proceedings, the petitioner, which is the Insurance Company of the offending vehicle, submitted an application at Exh. 73 praying for deleting it from the proceedings because according to the petitioner, the victims were travelling in a goods vehicle as passengers and. therefore, their risk was not covered under the policy. In other words, it was contended by the petitioner that Insurance Company was not liable to satisfy the award because the accident occurred on 21/2/1994; that is prior to amendment effected in Section 147 of the Motor Vehicles Act [hereinafter referred to as 'the Act']. It was further contended that the petitioner was joined as party to the proceedings in view of the decision of the Apex Court rendered in the case of New India Assurance Co. Ltd., v. Satpal Singh reported in 1999 AIR SCW 4337, however, the said decision has been overruled by Larger Bench of the Supreme Court by decision rendered in the case of New India Assurance Co. Ltd., v. Asha Rani reported in AIR 2003 S.C. 607. It was further contended by the petitioner that the Apex Court in Asha Rani's case held that the insurance company was not liable to satisfy the award in case of passengers travelling in goods vehicle. The said application was resisted by the claimants as well as the insured. It may be noted here that initially the Railway, i.e., Union of India was not joined as party opponent, but subsequently on the application of the petitioner it was impleaded as party opponent. The Tribunal held that at this stage it was difficult to accept request of the petitioner and delete it from the proceedings. According to the Tribunal, the parties were still to lead evidence in the case and in that view of the matter, it was premature to accept the contention of the petitioner and to delete it from the proceedings. It has, therefore, rejected the said application. Hence, these petitions.

(3.) I have heard Mr. Maulik J Shelat, learned advocate for the petitioner and Mr. Bipin Mehta & Mr. Arvind Thakur, learned advocates for the respondents. Mr. Shelat has contended that when the proceedings were filed before the Tribunal, law laid down by the Apex Court in Satpal's case [supra] was good law and, therefore, the petitioner was joined as opponent. However, the said decision has been overruled in Asha Rani's case and it has been held that insurance company is not liable to satisfy the award if the claimants are travelling as passengers in goods vehicle. He has submitted that the law on this issue has now been crystallised by the Larger Bench. He has further submitted that it is clear from the pleadings that the claimants were travelling as passengers in a goods vehicle, hence the liability of the insurance company was not there and there was no need to join it as opponent. According to Mr. Shelat, this will not only cause unnecessary harassment to the petitioner, but it will result into wanton waste of public money and public time. According to him, when the law on the point is very clear and when the petitioner in all circumstances is likely to be exonerated, there was no point in continuing it in the proceedings. He has placed reliance on several decisions of the Apex Court as well as this Court to substantiate his submissions. 3.1. As against that, Mr. Bipin Mehta and Mr. Thakur have argued that the application before the Tribunal at Exh. 73 itself was not maintainable since it was at a premature stage. According to them, when the entire trial is still pending and the petitioner company has to establish and prove defences available to it under section 149 of the Act, the Tribunal has rightly rejected the applications of the petitioner. They have further submitted that it would not be proper for this Court to delete the insurance company from the proceedings at the preliminary stage. They have submitted that applications made under Section 140 are still pending where neither the negligence nor the liability is required to be seen. According to them, if the insurance company is deleted from the proceedings, it will render the respondents almost remediless. They have also placed reliance on the decisions of this Court.