NEW INDIA ASSURANCE CO LTD Vs. RAM AVTAR

JUDGEMENT

(1.) In all these cases, the only point urged is that the deceased and injured persons were traveling in a goods carriage as gratuitous passengers and there was no policy of insurance to cover the risk to such persons. The Tribunal did not consider such a plea by the Insurance Company nor did it frame any issue for consideration with reference to such a defense. However, I will not take that to be material since the parties went to trial knowing what the status was. The admissions in the petitions themselves were that all of them had boarded the goods carried to mourn the death of one Deep Chand. I will take the defense taken by the Insurance Company to be funda mental to cast the liability on the insurer and will not fetter this Court to consider whether a right of claim could be enforced against an insurer under such a circumstance. The law is too well laid down through the decisions of the Hon'ble Supreme Court and by a statutory interdict and a statutory provision for compulsory insurance as available only to owners of goods traveling along with the goods. The Insurance Company could not have been made liable particularly in view of the law laid down by the Hon'ble Supreme Court in New India Insurance Co. Limited v. Asha Rani and Ors., 2001 129 PunLR 637 and several other decisions that followed the judgment.

(2.) The learned Counsel refers me to a decision of a Full Bench of the Madras High Court in Branch Manager, United India Insunce Co. Limited v. Nagammal and Ors., 2009 ACJ 865 to say that in a case where a passenger, who is neither an owner or agent or owner of goods, accompanies goods in a goods vehicle, shall still be entitled to enforce the award against the insurer. The Full Bench ruling of the High Court is quite of the contrary. It specifically lays down that in a case where the passenger meets with an accident, the Insurance Company cannot be directed to pay the claimant and thereafter recover the same. However, the same judgment also refers to situations where there are violations of terms of policy in the manner contemplated under Section 149(2). In such type of cases Section 149(4) proviso and 149(5) will operate. A case of a gratuitous passenger in a goods carriage is not a situation of merely a violation of terms of policy. Here, the ground to reject a claim by the claimant against an insurer is by resort to Section 147 and not by reference to Section 149. Section 147 refers to the situations where insurance is statutorily provided for. While an owner or an authorized representative of the owner of the goods is protected, a passenger in a goods carriage is not required to be covered for risk for accident injury or death. In such a situation, the principle of pay and recover does not arise.

(3.) Learned Counsel for the owner seeks to place reliance on the judgment of the Hon'ble Supreme Court in Asha Rani to contend that there is no liability even for the owner or the driver. It is a disastrous understanding of the law laid down by the Hon'ble Supreme Court What the law excepts is the duty of the owner to compulsorily insure for risk to passengers in a goods carriage. The Hon'ble Supreme Court was making a reference in the context of the changed definition of "goods carriage" and the new requirement to cover the risk by the amended provisions which allowed for compulsory coverage for persons who were entitled to the benefit of the Workmen's Compensation Act as well as to persons, who are owners of the gods being carried along with the goods. All that the Hon'ble Supreme Court expounds in the judgment is that there is no duty for an owner to cover the risk to classes of persons other than persons, who are specifically mentioned under Section 147(2). If there is no duty to cover the risk, the Insurance Company itself is not bound to underwrite a risk for covering a risk to a gratuitous passenger in a goods carriage. What Section 147 expressly excludes is to secure to an insurer a right not to underwrite the risk for gratuitous passengers in a goods carriage. This is the only way the judgment should be understood. An attempt by the learned Counsel for the driver that even a compensation claim cannot be filed before the MACT makes mockery of the provisions of the MV Act itself. A person, who is a tort feasor and who allows passengers to get into the carriage and visits them with harm, such as death or injury, cannot be heard to contend that the liability will cease to exist in any form. Such a contention is frivolous and it is rejected.