Pratap Kumar Ray, J. - (1.) Heard the learned Advocates appearing for the parties.
(2.) Assailing the judgment and order dated 28th Novemver, 2003 passed by the learned Motor Accident Claims Tribunal at Alipore in M.A.C. Case No. 420 of 2000, this appeal has been preferred by the claimant of the application filed under Section 166 of the Motor Vehicles Act, 1988. The claimant suffered 75% disablement due to the accident while he was returning back in a Mini Truck, which collided with another truck. Though loss of income was determined as Rs. 2500/- per month, but considering such travel of the claimant in the Mini Truck concerned as a gratuitous passenger, learned Tribunal below exempted the Insurance Company from their liabilities to satisfy the award as passed by applying Section 147(1) Clause (b)(i) of the West Bengal Motor Vehicles Act, 1988 and thereby liability was fixed upon owners of both the two tricks, namely, Mini Truck and Truck in question. Such adjudication is under challenge in this appeal in the ground of misinterpretation of statutory regulation on reflection of evidence on record. The owners of both the two vehicles did not contest the matter before the learned Tribunal below. Both the two trucks were insured under the same Insurance Company and admittedly the Insurance Company took leave under Section 170 of said Act to agitate all the points as the respective owners did not contest the case. The learned Advocate for the appellant submits that from the material evidence on record when the claimant in the application contended that the concerned Mini Truck was hired by him for selling fire woods to the nearby market, which is his business to earn livelihood and when in the evidence it remains unchallenged in cross-examination about his return by said Truck, the learned Tribunal ought to have fixed the liability of the Insurance Company by holding that the claimant was traveling in the said Mini truck as owner of the goods for which he hired the vehicle in terms of Section 147(1) Clause (b)(i) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act"). It has been further urged that even if for argumendo it is presumed that the claimant was a gratuitous passenger in the Mini Truck, still then the Insurance Company who covered the risk liability of the third party in respect of the other truck ought to have been directed to make payments of compensation money. Fixing of the liability upon the owners accordingly as per his submission was not lawful and justified. The learned Advocate for the appellant further has urged that even if for argumendo it is assumed that the claimant was a gratuitous passenger of the Mini Truck, hence, the insurer of the Mini Truck had no liability to bear the compensation award and even the third party's liability so far as the Insurance Company who has covered the risk in respect of the other truck is concerned involved in the accident lawfully could not be fixed, but following the case National Insurance Co. Ltd. v. BaljitKaur & Ors. reported in (2004)1 TAC 366 (SC) : (2004)1 WBLR (SC) 490, the learned Tribunal below ought to have directed the Insurance Company to pay the compensation amount as fixed fixing the liability to the owners of the vehicles with a rider to realize the same from the owners.
(3.) The Insurance Company has opposed the appeal by contending, inter alia, that the learned Tribunal was justified to follow the case New India Assurance Co. Ltd. v. Asha Rani & Ors., reported in (2003)1 TAC (SC) 1 : (2003)1 WBLR (SC) 605 in view of the statutory provision of law in terms of Section 147 whereby and whereunder by the amended provision "any person" was qualified the inclusion of words "the owner of the goods or the authorized representative" for fixing the liability upon the owners by considering the claimant as a gratuitous passenger. It has been urged that the judgment of Baljit Kaur (supra) has no applicability in the instant case factually and legally in both ways and the same is not a precedent at all to conclude that the statutory provision of Section 147(1) Clause (b)(i) so far as the inclusion of the word "including owner of the goods or his authorized representative" should be considered as effective prospectively from the date of judgment passed in Baljit Kaur (supra) that is with effect from 6th January, 2004 as in the event of considering the same in that angle, the same would be nothing but re-writing of the statute by the Court, which is not legally permissible under the law. The learned Advocate for the Insurance Company has further urged that the loss of income has not been properly dealt with and assessed as there is possibility of running the business of the fire woods with 75% disablement finding, even if is accepted, by other person being engaged by the claimant concerned and those points have not been dealt with by the learned Tribunal below.;