RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal has been preferred by the National Insurance Company Ltd. against the award dated 9. 8. 1995 passed by Motor Accident Claims Tribunal Jhunjhunu. The Tribunal therein awarded a sum of Rs. 1,02,400/- for the death of husband of respondent No. 3. Shri Ganesh Joshi, learned counsel appearing for the appellant has argued that the Tribunal has seriously erred in law in holding the appellant-Insurance Company liable for making payment of compensation even though deceased was gratuitous passenger in a goods vehicle. Deceased-Ramjan was admittedly travelling in a truck which was being driven by the driver rashly and negligently and which over-turned resulting into serious injuries to Ramjan who later succumbed thereto. It was argued that permitting deceased to travel in a goods vehicle was in clear breach of the terms and conditions of the policy of the insurance. Tribunal failed to appreciate the defence of the appellant that truck being a public goods carrier, a gratuitous passenger would travel in such truck at his own risk and the insurance company cannot be held liable for making payment of compensation for his death. Learned counsel in support of his arguments relied on the judgments of Supreme Court in Ramesh Kumar vs. National Insurance Co. Ltd. and others : 2001 ACJ 1565, New India Assurance Company Ltd. vs. Asha Rani and others : ACJ 2003 (1) 17 = (RLW 2003 (2) SC 213), New India Assurance Company Ltd. vs. Asha Rani : SCJ 2003 (1) 1 = (RLW 2003 (2) SC 213), National Insurance Co. Ltd. vs. Bommithi Subbhayamma and others : ACJ 2005 (2) 36, Smt. Thokchom Ongbi Sangeeta @ Sangi Devi and Anr. vs. Oriental Insurance Co. Ltd. and Ors. (Civil Appeal Nos. 4946-4947 of 2007 arising out of SLP (C) Nos. 3871-3872 of 2005 decided on 23. 10. 2007, Oriental Assurance Company Ltd. vs. Brijmohan (2007) 7 SCC 56 and New India Assurance Company Ltd. vs. Vedwati & Ors. : (2007) 9 SCC 486 = (2007 (2) RLW 1098 (SC ). It was further argued that owner of the vehicle had also taken a defence that deceased-Ramjan climbed in the truck from the back side without prior permission and if some unfortunate event occurred, they cannot be held liable. Learned counsel has also made an alternative argument that driver of the truck was not having any valid license, which also being violative of the condition of the contract of insurance, appellant insurance company could not be held liable for payment compensation. On the other hand, Shri Ramdev Tripathi, learned counsel for claimant-respondents opposed the appeal and argued that the learned Tribunal has passed a just and correct award. He argued that Tribunal has rightly relied on the judgment of the Supreme Court in New Asiatic Insurance Co. Ltd. vs. Pessumal Dhannamal Ashwani and others : AIR 1964 SC 1736 wherein it was held that a passenger travelling in a vehicle with permission of the driver, who in turn had the permission of the owner, would, be a third party covering third party sick and the liability of insurance company is co-extensive with that of the owner and for a dispute between the owner and the insurance company, third party cannot be made to suffer because right of the third party does not merely flows from the contract of insurance but it is statutory. Learned counsel relied on the judgment of Supreme Court in Ramesh Kumar supra, holding owner and insurance company jointly and severally liable to pay compensation. I have given my thoughtful consideration to the arguments aforesaid and perused the impugned awarded and studied the cited judgments. In Ramesh Kumar supra, the Supreme Court considered the effect of amendment in Section 147 (1) of the Motor Vehicles Act, 1988 introduced in 1994. First category of cases which arose before the Supreme Court were relating to the matters in which claim petitions had been filed on account of death due to bodily injuries sustained by either the owner or his representative or gratuitous passenger where, the compensation was claimed under Section 95 (1) (b) (i) and clause (ii) of proviso thereof after its amendment of 1969 under the Motor Vehicles Act, 1939. Third category of cases were such where similar claim petitions were filed in regard to liability of insurance company after 1994 amendment in Section 147 (1) of the Motor Vehicles Act, 1988. But the second category of cases were such which had arisen out of the accidents which took place prior to its amendment in 1994.
(3.) TWO-Judge Bench of Supreme Court in Ramesh Kumar supra, doubted the correctness of the earlier Supreme Court judgment in New India Assurance Company Ltd. vs. Satpal Singh : 2000 ACJ 1 (SC) = (RLW 2000 (1) SC 98) in so far as the law it laid down regarding second category of cases therefore, referred this question for re-consideration of this question by the Larger Bench. The three-Judge Bench of Supreme Court in New India Assurance Company Ltd. vs. Asha Rani and others: ACJ 2003 (1) 17 considered the provisions of Section 147 of the Motor Vehicles Act, 1988 corresponding to Section 95 of the Motor Vehicles Act, 1939. These cases in fact arose out of the accidents which occurred prior to amendment in clause (i) of Section in 1994 to also include "injury to any person including owner of the goods or his authorized representative being carried in the vehicle. " Larger Bench of Supreme Court in New India Assurance Company Ltd. vs. Asha Rani and others supra held that "even if widest interpretation is given to the expression `to any person', it will not cover either the owner of the goods or his authorised representative being carried in the vehicle," which was purposely later added therein by the Motor Vehicle (Amendment) Act of 1994. The later amendment therefore cannot be said to be either clarificatory in nature or amplification of pre-existing statute. Judgment of Supreme Court in New India Assurance Company Ltd. vs. Satpal Singh supra was not therefore held to have been correctly decided and thus stands over ruled. This very view has again been reiterated not only with regard to death or injury of owner of the vehicle but also gratuitous passenger. And so far as the law on the question as to risk of gratuitous passenger carried in a goods vehicle is concerned, it has been consistent view of the Supreme Court since Ramesh Kumar supra which was approved in New India Assurance Company Ltd. vs. Asha Rani and others supra and later reiterated by Supreme Court in National Insurance Co. Ltd. vs. Bommithi Subbhayamma and others supra and in recently pronounced judgment of Supreme Court in Smt. Thokchom Ongbi Sangeeta @ Sangi Devi and Anr. supra, Oriental Assurance Company Ltd. vs. Brijmohan supra and New India Assurance Company Ltd. vs. Vedwati & Ors. supra. Settled proposition of law emerging from all these judgments thus is that the insurance-company can not be held liable to make payment of compensation for the death or bodily injury to a gratuitous passenger travelling in goods/transport vehicle. In view of the law aforesaid, judgment of the Supreme Court relied on in New India Assurance Company Ltd. vs. Satpal Singh supra does not apply to the facts of the present case as that was a matter in which offending vehicle was a car and not a goods vehicle. It is therefore held that appellant-Insurance Company cannot be held liable for making payment of compensation to the claimants in regard to death of deceased who was a gratuitous passenger. ;