SATYABRATA SINHA, J. - (1.) THIS appeal and the application arise out of a judgment and award dated 8.9.99 passed by the Motor Accident Claims Tribunal, 3rd Court, Alipore, whereby and whereunder while allowing the petition for claim filed by the appellants herein to the extent of Rs. 1,50,000/- held that as the deceased was travelling in a vehicle which did not have the permit to carry passengers the insurance company was not liable to indemnify the owner of the vehicle. The award was thus passed only against the owner of the vehicle which is a lorry.
(2.) BEFORE the learned Tribunal a contention has been raised that as the driver was not holding a valid driving licence, there had been a clear violation of the insurance policy and violation of the permit inasmuch as the road permit was granted only for carriage of goods. The point at issue is now covered by the decision of the Apex Court in New Janta Stone Co. and another v. United India Insurance Co. Ltd., 1999 ACJ 273 as also the decision of the Apex Court in New India Assurance Company v. Satpal Singh and others, 2000(1) R.C.R.(Civil) 274 : AIR 2000 SC 235. In New Janata Stone Co. and another's case (supra) the Rajasthan High Court has held :- "In the case on hand the driver of the truck carried the passengers in the said truck which was goods vehicle, without the knowledge of the appellant. Insurance company could not prove from the material on record that the insurance policy was violated wilfully by the appellant therefore the respondent No. 1 insurance company could not have been exonerated from the liability to pay compensation to the claimants-respondents. In the light of Sohan Lal Passi's case, 1996 ACJ 1044 (SC) and New India Assurance Company's case, 1993 ACJ 673 (Gujarat), the view expressed by the D.B. of the Karnataka High Court in Oriental Insurance Company's case, 1992 ACJ 918 (Karnataka) cannot be accepted." The aforementioned decision covers the first objection taken by the appellants.
(3.) AS regards the question as to whether a gratuitous passenger is entitled to compensation or not, as noticed hereinbefore, was considered by the Apex Court in New India Assurance Company v. Satpal Singh and others (supra), wherein Apex Court distinguished its earlier judgement in Mallawwa v. Oriental Insurance Co. Ltd., 1999 ACJ 1 : AIR 1999 SC 589 : 1999(1) RCR(Civil) 115 (SC), inter alia, on the ground that by reason of the coming into force the Motor Vehicles Act, 1988, the Parliament has altered the phraseology of the charging provision. The Apex Court clearly held:- "Proviso to section 147(1) of the new Act shows that it is a recast provision by placing the erstwhile Clause (iii) as the present Clause (ii). In other words, Clause (ii) of the proviso in section 95(1) of the old Act is totally non-existent in the proviso to section 147(1) of the new Act. Under Section 147 of the new Act, the policy must be a policy which insures the person or classes of person specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorised representative carried in the vehicle) or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place." Having considered the provisions of sub-section (2) of section 147 of the Motor Vehicles Act, 1988 the Apex Court held - "Hence, under sub-section (2), there is no upper limitation for the insurer regarding the amount of compensation awarded in respect of death or bodily injury of a victim of the accident. It is, therefore, apparent that the limit contained in the old Act has been removed and the policy should insure the liability incurred and cover injury to any person including owner of the goods or his authorised representative carried in the vehicle. The legislature has also taken care of even the policies which were in force on the date of commencement of the Act by specifically providing that any policy of insurance containing any limit regarding insurer's liability shall continue to be effective for a period of four months from commencement of the Act or till the date of expiry of such policy, whichever is earlier. This means, after the said period of four months a new insurance policy consistent with the new Act is required to be obtained. The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis-a-vis gratuitous passenger are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force." ;