United India Insurance Co. Ltd. v. Rijawana Jamshed Mulla and others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **MACA.No.2281 OF 2014** **AGAINST THE AWARD IN OPMV 1273/2006 DATED 26-12-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT:** **THE UNITED INDIA INSURANCE CO. LTD MAHARASTHRA STATE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM.** **BY ADVS.** **SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** ## **RESPONDENTS:** - **1 RIJAWANA JAMSHED MULLA W/O. LATE JAMSHED MULLA, D/O. DADAMIYA AGA, KAR VENAKKA SAINIWAR PET, NOW RESIDING AT MALAKPUR, KARAD TALUK, SATHARA DISTRICT, MAHARASTHRA - 400 027.** - **2 MULLA SUGRABI W/O. LATE USMANGANI, MALAKPUR, KARA TALUK, SATHARA DISTRICT, MAHARASTHRA - 400027.** - **3 SANAH MINOR GIRL D/O. LATE JAMSHED MULLA, KAR VENAKKA SAINIWAR PET, NOW RESIDING AT MALAKPUR, KARAD TALUK, SATHARA DISTRICT, MAHARASTHRA - 400 027.** - **4 VASIM MINOR BOY S/O. LATE JAMSHED MULLA, KAR VENAKKA SAINIWAR PET, NOW RESIDING AT MALAKPUR, KARAD TALUK, SATHARA DISTRICT, MAHARASTHRA - 400 027.** MACA No.2281 of 2014 2 - **5 SHASHIKANT RAMACHANDRA PAWAR MALAKPUR, KARAD TALUK, SATHARA DISTRICT, MAHARASTHRA STATE - 400 027.** **6 MADHUKAR BAPU PAWAR KOYANA VASAHAT, JAKHINWADI, KARAD TALUK, SATHARA DISTRICT, MAHARASTHRA - 400 027.** ## **R1 BY ADV. SRI.P.THOMAS GEEVERGHESE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2281 of 2014 3 **CR** ## **JUDGMENT** ## **Dated this the 05[th] day of August, 2020** The appeal is by the Insurance Company alleging that the injured-deceased in the subject accident, was a gratuitous passenger and there could be no liability cast on the insurance company on the strength of the policy covering the vehicle MH-11-F 4369. An incident occurred where a driver, who was a passenger in the offending vehicle, fell off the moving lorry and succumbed to the injuries occasioned. The specific case of the claimants was that the deceased was employed in one lorry among the two travelling together from Kerala to Maharashtra and while he was travelling in the other lorry he slipped down and was run over by the same vehicle. The application was one under Section 163A of the Motor Vehicles Act, 1988 and there is no question to be decided of negligence. The learned counsel MACA No.2281 of 2014 4 appearing for the respondents/claimants argued before me that both the vehicles were owned by one person and even when the deceased was travelling in the other vehicle, he was the employee of the registered owner and was travelling as a spare driver; covered under the Proviso to Section 147. 2. One Milind S/o. Bhanudas, narrates the incident in the First Information Statement (FIS). There were two vehicles travelling from Kerala to Maharashtra with rubber wood loaded in them, which load was picked up from the factory of PW1. Each of the vehicles had two drivers, called the first driver and the second driver, and a cleaner. The person who made the FIS was the cleaner of one of the vehicles. PW3 the second driver of the offending vehicle, involved in the accident, was examined before the Tribunal. Both these persons narrated the story in consonance with each other. The narration as indicated from both the FIS and deposition of PW3 is MACA No.2281 of 2014 5 as follows. 3. Two vehicles bearing registration numbers MH-11-M 5097 and MH-11-F-4369 (referred to as the 'offending vehicle' despite there being no negligence of that driver) had come from Maharashtra to Kerala with loads of Dalda. After unloading the same, timber was loaded on to the vehicles from the premises of PW1 and both were proceeding to Maharashtra. Each of the vehicles had two drivers and one cleaner as employees of the registered owner. In the vehicle having registration number MH-11-M 5097, the employees were Jamshed Mulla, the first driver, who is the deceased, Ananda Rao, the second driver and Milind, the cleaner who gave the FIS. In the offending vehicle, the first driver was Sasikanth (first respondent), the second driver Balikhan(PW3) and cleaner Thanaji. While they were proceeding towards Maharashtra on 31.12.2005, vehicle bearing registration No.MH-11-M 5097, driven by the deceased, MACA No.2281 of 2014 6 was running in front of the offending vehicle, driven by the first respondent. The vehicle driven by the deceased brushed against a motor-cycle, but since nothing serious occurred he did not stop. The motorcyclist followed and way-laid the lorry. By this time the offending vehicle MH-11-F 4369 had come to the spot and parked behind MH-11-M 5097. The deceased who had been driving MH-11-M 5097, got out through the left cabin door and boarded the offending vehicle, parked behind. The second driver of the offending vehicle Balikhan (PW3) stepped down from that vehicle and came forward to talk to the motor-cyclists. Bali Khan and Ananda Rao spoke to the motor cyclist and settled the matter in the presence of Milind. By that time, the other vehicle resumed its journey and Jamshed Mulla, the deceased, was presumed to have travelled in that lorry. A little later, MH-11-M 5097 also resumed its journey with Ananda Rao in the driving seat and Balikhan and Milind accompanying, in MACA No.2281 of 2014 7 the cabin. They were under the impression that Jamshed Mulla was travelling in the other lorry. Milind also speaks of seeing a person lying on the road as they proceeded further, who it was presumed was a drunkard. Both the vehicles met a little later near a Dhaba, when Sasikanth, the driver and Thanaji, the cleaner of the offending vehicle, informed others that Jamshed Mulla was not to be seen and that after boarding the offending vehicle, he had proceeded to the carriage portion of the lorry to take rest, through the left cabin door. Presumably his attempt failed and he fell down from the moving vehicle, the left rear tyre of which ran over him. This was later revealed on their turning back in search of Jamshed Mulla and substantiated from the blood marks found on the left rear tyre of the offending vehicle. 4. The contention of the Insurance Company is that in the circumstances revealed from the FI Statement and the deposition of PW3 it is very clear MACA No.2281 of 2014 8 that Jamshed Mulla was a gratuitous passenger in the other vehicle. It is also submitted that even if a second driver is mandatorily required to be posted in a National Permit vehicle for the purpose of indemnification of liability by the insurer, the additional employee travelling in the vehicle would have to be covered by payment of additional premium. Section 147 according to the Insurance Company only provides coverage to one driver and one employee carried in a goods vehicle. Relying on the decision in _**[2013(2) SCC 41], Manager, National Insurance Company Ltd. vs Saju P.Paul & Anr ,**_ it was argued that the deceased, even if a spare driver, employed in the offending vehicle, is only a gratuitous passenger. 5. The learned counsel for the respondents/claimants submitted that the decision in _**Saju P.Paul**_ is before the amendment to Section 147 in the year 1994. It is also argued that earlier, the MACA No.2281 of 2014 9 Hon'ble Supreme Court had in _**New India Assurance Company vs Satpal Singh (2000(1) SCC 237)**_ held that Section 147 as then available in the 1988 Act does not warrant an insurance policy covering 3[rd] party risk to exclude gratuitous passengers in a vehicle. It is argued that _**New India Assurance Co.Ltd. v. Asha Rani, ( 2003) 2 SCC 223**_ did not overrule _**Satpal Singh**_ in its entirety **.** In such circumstances the earlier decision holds the field in so far as gratuitous passengers are concerned, is the argument. This is without prejudice to the contention that the 2[nd] driver is also an employee of the insured covered under the Proviso to Section 147. _**Sanjeev Kumar Samrat v. National Insurance Company Ltd., (2014) 14**_ _**SCC 243**_ is relied on to contend that the Insurance Company is obliged to offer coverage to all the employees; employed or engaged by the insured, as per the policy. A second driver also would hence be covered by the policy is the contention. _**2015 SCC**_ MACA No.2281 of 2014 10 _**Online Ker 19117, Paily vs. Babu**_ , a Division Bench decision of this Court is relied on to contend that even a person carried in the vehicle in pursuance of a contract of employment is covered by a 'Act only policy'. 6. Having gone through the decisions, this Court finds that _**Asha Rani**_ reversed _**Satpal Singh**_ in its entirety and the reversal was of the finding that a gratuitous passenger would be entitled to coverage under Section 147(1) of the Act. In _**Saju P.Paul's**_ case, which considered both the aforesaid decisions the specific facts were that an employee of the insured himself was travelling as a spare-driver in yet another vehicle of the same employer, when the accident occurred. The accident resulted in the spare-driver suffering serious injuries. The Hon'ble Supreme Court found that the injured was only a gratuitous passenger. It was held in para 17 that: _“...The insured (owner of the vehicle) got insurance cover in_ MACA No.2281 of 2014 11 _respect of the subject goods vehicle for driver and cleaner only and not for any other employee. There is no insurance cover for the spare driver in the policy. As a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he was a spare driver. The insured had paid premium for one driver and one cleaner and, therefore, second driver or for that purpose “spare driver” was not covered under the policy."_ 7. The amendment of 1994 which is relied on by the learned counsel for the claimants does not at all have any relevance in so far as a gratuitous passenger. In Section 147(1)(b)(i), the words _"injury to any person"_ specifying the person or classes of persons covered, was substituted with _"injury to any_ _person, including owner of the goods or his authorized representative carried in the vehicle"_ . Hence only the owner of the goods and such owner's authorized representative carried in the vehicle were additionally covered as per the amendment. A gratuitous passenger who was held to be excluded by MACA No.2281 of 2014 12 _**Asha Rani's**_ case cannot be included by virtue of the amendment relied on. 8. We need to dwell briefly upon the background to clear the air with respect to the specific contention raised by the learned Counsel for the respondent. In _**Satpal Singh**_ the question dealt with was whether the third party risk covered by a limited policy under the 1988 Act covers death or bodily injury even of a gratuitous passenger as distinguished from the 1939 Act. Noticing the provision under Section 147 of the 1988 Act to be substantially different from Section 95 of the 1939 Act, it was held that an insurance policy covering third party risk under the 1988 Act does not exclude gratuitous passenger in a vehicle whatever be the type or class of the vehicle. Therein a ten year old girl met with her death in a truck accident in which vehicle she was a gratuitous passenger. Later the issue again arose for consideration before the MACA No.2281 of 2014 13 Hon'ble Supreme Court on three aspects; the liability under the 1939 Act, that under the 1988 Act, before and after the 1994 amendment. _**Satpal Singh**_ dealt with the aspect of the liability as per the 1988 Act before its amendment in 1994. A two Judge Bench of the Hon'ble Supreme Court in _**New India Assurance Co.Ltd. v. Asha Rani,[(2001) 6 SCC 724]**_ doubted the position as declared in _**Satpal Singh**_ and referred it for consideration before a larger Bench. On the two other aspects the very same Bench authoritatively declared the position in _**Ramesh Kumar v. National Insurance Company Limited [(2001) 6 SCC 713]**_ . The common issue was whether the Insurance Company was liable to pay compensation on account of death or injury of gratuitous passenger including the owner of the goods or his representative travelling in a goods vehicle. The question as to whether Section 95 of the 1939 Act provided cover to these categories was found to have been answered in _**Mallawwa v Oriental**_ MACA No.2281 of 2014 14 _**Insurance Company Limited [(1999) 1 SCC 403]**_ . With respect to the 1939 Act, it was held that the Insurance Company is not liable for any damages or injury caused to gratuitous passengers including owner of the goods or its representative who travelled in a goods vehicle. The position with respect to the 1988 Act, prior to its amendment in 1994 was not considered since the issue of coverage of gratuitous passengers in a goods vehicle before amendment, was referred to a larger Bench. On the third category of cases, regarding the liability of the Insurance Company under the 1988 Act, after its 1994 amendment it was noticed that there was no case before them in which there was a claim raised by a gratuitous passenger. _**Satpal Singh**_ was found to be only applicable to gratuitous passengers. With respect to the owner of the goods and his authorised representative carried in the vehicle; it was held, after the 1994 amendment the Insurance Company is MACA No.2281 of 2014 15 liable to cover any injury caused to them, under Section 147. 9. As we noticed earlier, the amendment in 1994 does not in any manner affect the decision in _**Satpal Singh**_ which was with respect to the pre-amended provision. Even after amendment, as per _**Satpal Singh**_ the injury caused to a gratuitous passenger travelling in a goods vehicle would be covered under Section 147. This is the specific issue which was considered by the larger Bench of the Hon'ble Supreme Court pursuant to the reference, in _**New India Assurance Co.Ltd. v. Asha Rani, (2003) 2**_ _**SCC**_ **223** which reversed _**Satpal Singh**_ . It was held by the larger Bench that the amendment of 1994 itself would lead to the irresistible conclusion that prior to that even if the widest interpretation is given to the expression “to any person” as found in 146(1)(b) (1), it would not cover the owner of the goods or his authorised representative carried in the vehicle. MACA No.2281 of 2014 16 Hence there is no question of a gratuitous passenger being covered under the policy issued prior to the amendment of 1994. After the amendment of 1994 the law with respect to the coverage under the insurance policy remains the same insofar as the third party risk not covering the injury or damage caused to gratuitous passengers. However, the owner of the goods and his representative would be covered after the amendment brought in to Section 147 in 1994. This does not change the position insofar as the gratuitous passenger in a goods vehicle not being covered even after the amendment in 1994. Hence a gratuitous passenger in a goods vehicle or goods carriage as per the 1939 Act and the 1988 Act, before and the after the amendment of 1994 are not covered under a policy issued under Section 147. A spare driver also has only the status of a gratuitous passenger and would not be covered by an 'Act only policy'. MACA No.2281 of 2014 17 10. _**Sanjeev Kumar Samrat**_ was a case in which the question arose as to whether the insurer is obliged to indemnify the owner of a goods vehicle, when the employees engaged by the hirer of the vehicle(owner of the goods) travelled in the vehicle. Therein the owner of the goods and two employees travelled in the hired vehicle, which met with an accident in which all of them succumbed to the injuries caused. The owner of the goods was held to be covered, but not his employees. The policy therein, in addition to the statutory cover, covered six employees under the purview of the Workmens Compensation Act. The said employees were held to be those of the owner of the vehicle and not of the owner of the goods. The Court noticed Section 147 to find the legislative intend, as far as a goods vehicle is concerned, to be to cover injury to any person (a third party as held in _**Asha Rani**_ ) including the owner of the goods or his authorized representative carried MACA No.2281 of 2014 18 in the vehicle as per sub-section(1)(b), the driver of the vehicle as per proviso (i)(a) and an employee of the owner of the vehicle who is carried in the vehicle as per proviso (i)(c). Hence every employee of the owner of the goods would not be covered under the policy; was the finding. The dictum has no application to the instant case. 11. In _**Paily**_ the injured deceased was a loading and unloading worker, who was travelling with the timber owned by the forest department in a vehicle hired by the said department. The worker was thrown out of the vehicle and later succumbed to injuries. It was in such circumstances that the Division Bench found that he is covered by the policy being an authorized representative of the owner of the goods. Neither of these decisions help the claimants in advancing their case with respect to indemnification of the owner of the vehicle, by the insurance company. MACA No.2281 of 2014 19 12. Having stated the law with respect to an additional employee carried in the goods vehicle as argued by the learned counsel for the claimant, we have to observe that the same has no relevance to the facts of the instant case. The deceased was not the employee of the owner of the vehicle, which was involved in the accident. Admittedly, two lorries were proceeding to Maharashtra with goods loaded from the very same premises. Both the vehicles as noticed before had two drivers employed therein along with one cleaner. The second driver of each of the said vehicles was the spare driver engaged by the owner of the vehicle to satisfy the essential requirement for a National Permit. The two vehicles as noticed had registration Nos.MH-11-M-5097 and MH-11-F-4369. The vehicle involved in the accident was one having number MH-11-F-4369, whose owner was impleaded as the 2[nd] respondent before the Tribunal. The 2[nd] respondent's deposition as available from the records MACA No.2281 of 2014 20 indicates that the other vehicle was owned by yet another person and the deceased was the first driver in that vehicle. This is in consonance with the FI Statement as spoken of by Bhanudas, the cleaner of the vehicle, with registration No. MH-11-M-5097. Though both vehicles were hired by the same person to transport Dalda from Maharashtra to Kerala and timber from Kerala back to Maharashtra, the registered owners of the two vehicles were different persons. The deceased was not the employee of the 2[nd] respondent, who was the owner of the vehicle involved in the accident. In that context no question arises as to whether a second driver is covered under the proviso to Section 147 of the Motor Vehicles Act; which in any event has to be answered in the negative going by the precedents above referred. It has to be held that the Insurance Company has no liability to indemnify the owner of the goods vehicle, with respect to the compensation MACA No.2281 of 2014 21 awarded for the loss of life of the deceased, who was not an employee of the owner of that vehicle and has been proved to be a gratuitous passenger in the goods carriage involved in the accident. Even a spare driver as found in _**Saju P. Paul**_ would not be covered by an 'Act only policy'. The insurance company has to be absolved from the liability to indemnify the owner of the vehicle, as per the policy. The award is set aside to that limited extent. 13. Now the question arises as to whether the insurance company has to discharge the liability and then be reserved the right of recovery from the owner of the offending vehicle. The claim petition before the Tribunal is one filed under section 163A and hence there is no question of negligence being proved, though this Court has referred to the vehicle involved in the accident as the offending vehicle; MACA No.2281 of 2014 22 which is only for the purpose of distinguishing the two vehicles. The Hon'ble Supreme Court in _**Saju P. Paul**_ has elaborately dealt with the directions issued to the insurer to satisfy the award amounts, with rights reserved for recovery, on the strength of precedents. The learned Judges also noticed _**National**_ ## _**Insurance Co. Ltd. vs. Parvathneni (2009) 8 SCC 785**_ wherein the question as to the justification of directing insurance companies to satisfy the award amounts even when it does not have any liability; was referred to a larger Bench; but all the same issued such direction. A later decision _**Manuara Khatun vs. Rajesh Kr. Singh (2017) 4 SCC 796**_ dealing with this specific question held so: **17.** The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as “gratuitous passengers” in the offending vehicle and it was for this reason, the insurance companies were exonerated. MACA No.2281 of 2014 23 In _Saju P. Paul case_ ~~a~~ lso having held that the victim was “gratuitous passenger”, this Court issued directions against the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings. **==> picture [377 x 13] intentionally omitted <==** contentions advanced on the strength of the reference made to a larger Bench in para 19: **19.** We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in _Saju P. Paul case_ . Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in _Saju P. Paul case_ it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from para 26 of the judgment in _Saju P. Paul case_ . That apart, the learned counsel for the appellants stated at the Bar that the reference made to the larger Bench has since been disposed of by keeping the issue MACA No.2281 of 2014 24 undecided. It is for this reason also, the argument does not survive any more. 15. The issue in the two cases cited above was the liability of the insurance companies as against injury/death caused to gratuitous passengers; which was held in the negative in so far as an 'Act only policy'. Despite that the insurer was directed to satisfy the award and recover it from the owner. In that circumstance we issue similar directions to the insurance Company to satisfy the award amounts and pay it to the claimants and reserve the right of the Insurance Company to recover the amounts paid from the owner of the vehicle, the second respondent herein who has been served with notice in this appeal, but remained ex-parte. The Insurance Company would be enabled to approach the Tribunal which decided the issue or seek transfer of the matter to the Tribunal having jurisdiction over the residence/ MACA No.2281 of 2014 25 assets of the 2[nd] respondent owner of the vehicle. Either way the Tribunals shall be empowered to effect recovery under the Revenue Recovery Act of that State where the 2[nd] respondent has assets/residence. 16. Considering the fact that 14 years have now elapsed from the date of the accident, there is no requirement to keep any amounts in fixed deposit as directed by the Tribunal. We also notice that both the minor children would have attained majority as of now. The claimants shall produce a copy of a cancelled cheque of the Bank account in a Nationalized Bank in any one of their names, with authorization from others or in their joint/separate names and with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account/accounts, within three months thereafter failing which, the claimants can MACA No.2281 of 2014 26 approach the Tribunal. Appeal allowed with the above reservation and directions. No order on costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** **Jma/**