ORIENTAL INSURANCE CO LTD Vs. HARI SINGH

JUDGEMENT

(1.) These six appeals [F.A.O. (MVA) Nos. 104, 106, 107, 108, 109 and 110 of 1990] and three cross-objections (C.O. Nos. 170 of 1990, 133 and 134 of 1991) are being disposed of by a common judgment as these arise out of the same accident and a common award dated 2.4.1990 whereby the Motor Accidents Claims Tribunal (1), Mandi, Kullu and Lahaul Spiti Districts at Mandi (hereinafter called as 'the Tribunal') has determined the compensation payable to the respondents-claimants by the driver as well as the owner of the ill-fated truck No. HID 1405 and Oriental Insurance Co. Ltd., Mandi, with which the said truck was insured at the time of the accident. The liability of the owner as well as the driver and the insurance company has been held joint as well as several. Only the insurance company has filed these appeals challenging its liability to indemnify the insured, i.e., the owner of the truck on the ground that the deceased, whose legal representatives are the respondents-claimants in the appeals, were gratuitous passengers or passengers travelling with their goods in the goods vehicle, who could not be termed as passengers in the vehicle for hire and reward within the meaning of proviso (ii) to section 95 (1) of the Motor Vehicles Act (hereinafter called as 'the Act') to fasten the statutory liability on the insurer. Another ground raised by the appellant insurance company is that in the alternative, the deceased have been wrongly treated as coolies or labourers travelling in the truck for the purpose of loading and unloading of the goods being carried in the truck to fix its liability in accordance with the terms of the insurance policy.

(2.) We have heard learned counsel for the parties and gone through the record. In the claim petitions the case set up by the respondents-claimants was that they had hired the truck in question at Manali for carrying their goods/articles to Sunder Nagar, which met with an accident near Hanogi Mata Temple and fell down in the river Bias. In their common reply the owner and driver of the truck not only admitted that the truck was hired by the deceased along with other persons for carrying their goods/articles to Sunder Nagar but also added that they were travelling in the truck for the purpose of loading and unloading. But the appellant insurance company, which was arrayed as respondent No. 3 in the claim petitions, raised preliminary objection that the deceased were travelling as gratuitous passengers for whom the insurance company was neither liable under the Act nor under the terms and conditions of the insurance policy. Keeping in view the defence of the insurance company, the issues framed, inter alia, were whether the deceased persons were gratuitous passengers as alleged in its reply and whether insurance company was not liable to indemnify the owner for the compensation awarded to the respondents-claimants. We find from the evidence on record that the Tribunal has rightly held that the deceased persons were travelling in the truck at the time of the accident as owners of the goods but in view of the law laid down by the Supreme Court in its latest judgment in Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 (SC), they are not the passengers in the vehicle for hire and reward within the meaning of proviso (ii) to section 95 (1) (b) of the Act and the appellant insurance company cannot be held liable to indemnify for the compensation awarded to the respondents-claimants. In this judgment the view of Full Bench of Orissa High Court in New India Assurance Co. Ltd. v. Kanchan Bewa, 1994 ACJ 138 (Orissa), has been held to be correct and the contrary view expressed by other High Courts has been regarded as incorrect. In the said Full Bench judgment of Orissa High Court the conclusion arrived at by the learned Judges was that proviso (ii) to section 95 (1) (b) did not apply for the passengers carried for hire or reward in a goods vehicle and it is restricted to passengers carried in a public service vehicle. Referring to proviso (ii) to section 95 (1) (b) the learned Judges of the Orissa High Court have held in para 22:

(3.) Therefore, by applying the law laid down by the Supreme Court in Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 (SC), we have no alternative but to hold that the appellant insurance company is not held liable to indemnify the owner of the truck in question.