Ramesh Kumar Vs. National Insurance Co. Ltd. & Ors.
EmailAppeal: Civil Appeal No. 5010 of 1999
Petitioner: Ramesh Kumar
Respondent: National Insurance Co. Ltd. & Ors.
Apeal: Civil Appeal No. 5010 of 1999
Judges: A.P. MISRA & U.C. BANERJEE, JJ.
Date of Judgment: Aug 17, 2001
Appearances:
Mr. Jitender Sharma, Mr. P.P. Malhotra, Mr. Rama Jois, Senior Advocates, Mr. Ashok Kumar Gupta, Mr. K.K. Jain, Mr. Pramod Dayal, Mr.Anand Padmanabhan, Ms. Lipika Sharma, Mr. S.K. Paul, Ms. Indra Sahney, Mr. Kishore Rawat, Mr. M.K. Dua, Mr. Sunil Kapoor, Mr. Shailendra Sharma, Ms. Rekha Palli, Ms. Pankaj Bala Verma, Ms. Kiran Suri, Mr. Sanjeev Das, Mr. Parmanand Gaur, Ms. Minakshi Vij, Mr. N.M. Popli, Ms. Vrinda Dhar, Mr. T.C. Sharma, Mr. Joy Basu, Mr. B.K. Satija, Mr. Jay Savla, Mr. K.K. Mani, Mr. Romy Chacko, Mr. Rajiv Mehta, Mr. Anil Sinha, Mr. Naresh K. Sharma, Mr. Umesh Bhagwat, Mr. H.A. Raichura, Mr. Mahabir Singh, Mr. Rajiv Nanda, Ms. Neera Gupta, Mr. D.B.R. Vohra, Mr. S.N. Bhat, Mr. N.P.S. Panwar, Mr. D.P. Chaturvedi, Mr. Uday Gupta, Mr. Vineet Kumar, Dr. K.S. Chauhan, Mr. J.S. Attri, Mr. S. Sriniva-san, Ms. B. Sunita Rao, Mr. V.B. Saharya, Mr. Sunil Kumar Jain, Mr. Vijay Hansaria, Mr. Goodwil Indeevar, Mr. Arvind Kumar, Ms. Laxmi Arvind, Mr. Sunil Gupta, Ms. Binu Tamta, Mr. Rajesh Saxena, Mr. Anil Kumar Sangal, Mr. Anurag Pandey,Mrs. V.D. Khanna, Mrs. K. Sharada Devi, Mr. S.C. Patel, Mr. M.T. George, Dr. Sushil Balwada, Mr. Surya Kant, Mr. B.D. Sharma, Mr. Javed Mahmud Rao, Mr. E.C. Vidya Sagar, Mr. K. Khullar, Mr. R.C. Kohli, Mr. A.V. Palli, Mr. P. Narasimhan, Ms. Biraj Tiwari, Mr. Uma Datta, Mr. C.S. Ashri, Mr. M.K.D. Namboodiri,Mr. Sanjeev Malhotra, Mr. J.R. Midha, Mr. S. Ghosh, Mr. C.P. Pandey, Mr. Ajit Pudussery, Mr. K.L. Nandwani, Mr. Vipin Nandwani for Mr. Debasis Misra, Mr. H. Wahi and Ms. Meenakshi Vij, Advocates with them for the appearing parties.
Head Note:
MOTOR VEHICLES
Motor Vehicle Act, 1939
Section 95 – Liability of Insurance Company – Damage in cases of gratuitous passengers including owner, travelling in goods vehi-cle. Held that in view of decision in Mallawwa’s case, (JT 1998 (8) SC 217) the liabil-ity is not of insurance company but of owner of vehicle. (Para 6)
Motor Vehicle Act, 1988
Section 147 – ( As amended in 1994) – Liability of Insurance Company – Damages to gratuitous passenger including owner and his representative, travelling in goods vehicle. Held that in view of decision in Satpal Singh’s case, insurance company is liable to pay to owner and his representative travelling in goods vehicle. (Paras 7 and 8)
Ed: Question whether a particular person was or was not owner not allowed to be raised, being a question of fact.
Cases Reffered:
1. New India Assurance Company v. Satpal Singh and Ors. (JT 1999 (9) SC 416) (Para 7)
2. Mallawwa (Smt.) and Ors. v. Oriental Insurance Co. Ltd. and Ors. (JT 1998 (8) SC 217) (Para 6)
2. Mallawwa (Smt.) and Ors. v. Oriental Insurance Co. Ltd. and Ors. (JT 1998 (8) SC 217) (Para 6)
JUDGEMENT:
MISRA, J.
1. Leave granted.
2. The aforesaid sets of cases have been classified in three categories, which raises common question about the liability of payment of compensation by the Insurance Company under the Motor Vehicles Act.
Category I
CA No. 5010 of 1999, C.A. No. 5051/1999, C.A. Nos. 623/1997, C.A. No. 40/1986, C.A. No. 5457 of 2001(Arising out of SLP (C) 20312/1997), C.A. No. 5458 of 2001(Arising out of SLP (C) No. 20313 of 1997), C.A. Nos. 3393-3395 of 1996, C.A. Nos. 10846-10850 of 1996, C.A. No. 5459 of 2001 (Arising out of SLP(C) No. 13954 of 2000), C.A. No. 5460 of 2001 (Arising out of SLP(C) No. 14855 of 2000), C.A. Nos. 950-957 of 1999, C.A. No. 1090 of 1999, C.A. No. 521 of 1993, C.A. No. 522 of 1993, C.A. No. 523 of 1993, C.A. Nos. 5461-62 of 2001, (Arising out of SLP(C) Nos. 15554-15555 of 2000), C.A. No. 1249 of 1999, C.A. No. 1253 of 1999, C.A. No. 1255 of 1999, C.A. No. 1254 of 1999, C.A. No. 1251 of 1999, C.A. No. 1252 of 1999, C.A. No. 5463 of 2001, (Arising out of SLP No. 3938 of 1996), C.A. No. 6542 of 1994, C.A. No. 6543 of 1994, C.A. No. 6544 of 1994, and C.A. No. 6545 of 1994,
Category II
CA No. 5385 of 2001 (arising out of SLP (C) No. 9873 of 2000), C.A. 16793-16796 of 1996, C.A. 229 of 1999, CA Nos. 5386-5410 of 2001 (arising out of SLP (C) Nos. 4098-4122 of 2001), CA No. 5411-16 of 2001, (arising out of SLP (C) Nos. 11427-11432 of 2001), CA No. 5417 of 2001 (arising out of SLP (C) No. 11760 of 2001), CA Nos. 5418-27 of 2001 (arising out of SLP (C) Nos.10938-10947 of 2000), C.A. No. 4458 of 1999 , C.A. No. 5223 of 2000, CA Nos. 5428-32 of 2001 (arising out of SLP (C) Nos. 12889-93 of 2001), C.A. No. 1697 of 1999, CA Nos. 5433-44 of 2001 (arising out of SLP (C) Nos. 12627-38 of 2000), C.A. No. 6237 of 1997, C.A. Nos. 272-77 of 1999, CA Nos. 5445-50 of 2001 (arising out of SLP (C) Nos. 8116-22 of 2001), CA Nos. 5451-52 of 2001 (arising out of SLP (C) Nos. 6956-57 of 2001), CA Nos. 5453-56 of 2001 (arising out of SLP (C) Nos. 10419-22 of 2001), and C.A. No.3843 of 2000,
Category III
CA No. 5464 of 2001 (Arising out of SLP (c) No. 3408 of 2001), CA No. 5465 of 2001(Arising out of SLP (c) No. 3409 of 2001), C.A. NO. 6755 of 1999, CA Nos. 5466-67 of 2001(Arising out of SLP (c) Nos. 8765-66 of 2001), and CA Nos. 5468-69 of 2001(Arising out of SLP (c) Nos. 9892-93 of 2001)
3. The first category of cases arise out of the Motor Vehicles Act, 1939 (hereinafter referred to as ‘Old Act’). The question raised for this category is:
“Whether insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passeng-ers including owner or his representative of the goods, travell-ing in a goods vehicle under Section 95 of the said Act?”
4. The second category of cases arise out of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘New Act’) prior to its amendment in 1994. In this category also similar question is raised. The third category of cases also arise under the New Act but after its amendment by Act No.54 of 1994. In this category also the same question is raised
5. Thus the question raised in all these cases is about the liability of the insurance company, for the payment of compensa-tion to the claimants for those falling under the aforesaid field on account of their death or bodily injury while travelling in a goods vehicle. We are disposing of through this judgment, the group of cases falling under category one and three respectively. So far cases covered under category two, we will be dealing with it through a separate judgment and order.
6. The category one cases are all in which a claim petition has been filed by the claimants on account of death or bodily inju-ries of either the owners or his representative or the gratuitous passengers. In all these cases claimant claimed compensation under Section 95(1)(b)(i) and Clause (ii) of the proviso after its amendment in 1969 under the Old Act. The submission is, it is the insurance company, which is liable to pay the compensation notwithstanding that vehicle involved in the accident is a goods vehicle. On the other hand submission for the insurance company is that they are not liable for those passengers who travels by a goods vehicle, in view of the language used in Section 95 of the Old Act. The cases under this category need not detain us long as this question has been directly raised and decided in the case of Mallawwa (Smt.) and Ors. v. Oriental Insurance Co. Ltd. and Ors. (JT 1998 (8) SC 217 = (1999) 1 SCC 403). In this case the accidents were for the period between 1971 and 1985. This Court held, the insurance company is not liable for any damage in cases the gratuitous passengers including owner of the goods or his representative who travelled in a goods vehicle. So the first category of cases are disposed of in term of this declaration that liability to pay compensation to the claimants of such person is not on the insurance company but on the owner of the goods vehicle. In case insurance company had made part or full payment towards such compensation awarded, the same shall not be refunded from the claimant but is recoverable by the insurance company from the owners. In case the amount has been withdrawn by the claimants on furnishing any security, the said security shall stand discharged. In case no payment or part payment has been made by the claimant, we direct the owners of the vehicle to pay the awarded compensation to the claimant within a period of three months from today. Accordingly the first category of cases are disposed of.
7. This takes us to the third category of cases where similar question is raised regarding liability of the insurance company under the new Act after its 1994 amendment. The submission for the claimant is, the insurance company is liable to pay the compensation both in view of the decision of this Court in New India Assurance Company v. Satpal Singh and Ors., (JT 1999 (9) SC 416 = (2000) 1 SCC 237) and also in view of its 1994 amend-ment. This Court in this case, while interpreting Section 147(1)(i) and (ii) of the New Act holds, the insurance company liable to pay the compensation both for the owner and his repre-sentative and also for the gratuitous passengers travelling in a goods vehicle. In this third category, in spite of the said declaration the claimants have confined their claim only for the owner or his representative who were travelling in a goods vehi-cle and not for the gratuitous passenger. Since Satpal Singh (supra) confers right over gratuitous passengers also, which is not claimed by any of the claimants under this category, thus declaration of law in Satpal Singh (supra) is not required to be considered for this category, as claim for the owner and his representative is not disputed even by the learned Counsel for the insurance company, after its aforesaid 1994 amendment, that insurance company is liable to pay compensation for such person even when they were travelling in a goods vehicle. This is in view of 1994 amendment in Sub-clause (I) of Section 147 (1)(b) of the New Act in which the following words were brought in:
“…injury to any person, including owner of the goods or his authorised representative carried in a vehicle.”
8. Thus this category of cases are also disposed of by declaring that compensation awarded in such cases where deceased or injured persons were travelling in a goods carriage who were owner or his authorised representative, the insurance company is liable to pay the compensation. Any compensation or part of it not paid shall be paid to the claimant by the insurance company within eight weeks of this order. Any such amount withdrawn by the claimant which was deposited by the Insurance Company on furnishing secur-ity, such security stands discharged.
9. Leaned Counsel appearing for the insurance company has submit-ted that even though the insurance company is liable to pay to the legal representatives of the owner or authorised representa-tive, the question is, whether those travelling were truly owners of the goods or not? This in our considered opinion is a ques-tion of fact which we need not advert. Only in cases it is recorded by the Tribunal that they were not the owners then only insurance company could succeed that they are not liable to pay. In any case if insurance company has not raised any such issue they cannot be permitted to raise it now. Unless such an issue was raised, foundation laid in the pleading and if not adjudicat-ed by the Tribunal thereafter if a ground is raised before the High Court yet not decided there could be possibility of remand-ing the case otherwise it cannot be permitted to be raised. We have not been shown in any of these cases to qualify for the above. Accordingly we dispose of these cases falling under the third category, by declaring that the insurance company is liable to pay the compensation for the deceased or injured persons travelling in a goods carriage, who were either the owner or his representatives. These appeals are disposed of accordingly.
1. Leave granted.
2. The aforesaid sets of cases have been classified in three categories, which raises common question about the liability of payment of compensation by the Insurance Company under the Motor Vehicles Act.
Category I
CA No. 5010 of 1999, C.A. No. 5051/1999, C.A. Nos. 623/1997, C.A. No. 40/1986, C.A. No. 5457 of 2001(Arising out of SLP (C) 20312/1997), C.A. No. 5458 of 2001(Arising out of SLP (C) No. 20313 of 1997), C.A. Nos. 3393-3395 of 1996, C.A. Nos. 10846-10850 of 1996, C.A. No. 5459 of 2001 (Arising out of SLP(C) No. 13954 of 2000), C.A. No. 5460 of 2001 (Arising out of SLP(C) No. 14855 of 2000), C.A. Nos. 950-957 of 1999, C.A. No. 1090 of 1999, C.A. No. 521 of 1993, C.A. No. 522 of 1993, C.A. No. 523 of 1993, C.A. Nos. 5461-62 of 2001, (Arising out of SLP(C) Nos. 15554-15555 of 2000), C.A. No. 1249 of 1999, C.A. No. 1253 of 1999, C.A. No. 1255 of 1999, C.A. No. 1254 of 1999, C.A. No. 1251 of 1999, C.A. No. 1252 of 1999, C.A. No. 5463 of 2001, (Arising out of SLP No. 3938 of 1996), C.A. No. 6542 of 1994, C.A. No. 6543 of 1994, C.A. No. 6544 of 1994, and C.A. No. 6545 of 1994,
Category II
CA No. 5385 of 2001 (arising out of SLP (C) No. 9873 of 2000), C.A. 16793-16796 of 1996, C.A. 229 of 1999, CA Nos. 5386-5410 of 2001 (arising out of SLP (C) Nos. 4098-4122 of 2001), CA No. 5411-16 of 2001, (arising out of SLP (C) Nos. 11427-11432 of 2001), CA No. 5417 of 2001 (arising out of SLP (C) No. 11760 of 2001), CA Nos. 5418-27 of 2001 (arising out of SLP (C) Nos.10938-10947 of 2000), C.A. No. 4458 of 1999 , C.A. No. 5223 of 2000, CA Nos. 5428-32 of 2001 (arising out of SLP (C) Nos. 12889-93 of 2001), C.A. No. 1697 of 1999, CA Nos. 5433-44 of 2001 (arising out of SLP (C) Nos. 12627-38 of 2000), C.A. No. 6237 of 1997, C.A. Nos. 272-77 of 1999, CA Nos. 5445-50 of 2001 (arising out of SLP (C) Nos. 8116-22 of 2001), CA Nos. 5451-52 of 2001 (arising out of SLP (C) Nos. 6956-57 of 2001), CA Nos. 5453-56 of 2001 (arising out of SLP (C) Nos. 10419-22 of 2001), and C.A. No.3843 of 2000,
Category III
CA No. 5464 of 2001 (Arising out of SLP (c) No. 3408 of 2001), CA No. 5465 of 2001(Arising out of SLP (c) No. 3409 of 2001), C.A. NO. 6755 of 1999, CA Nos. 5466-67 of 2001(Arising out of SLP (c) Nos. 8765-66 of 2001), and CA Nos. 5468-69 of 2001(Arising out of SLP (c) Nos. 9892-93 of 2001)
3. The first category of cases arise out of the Motor Vehicles Act, 1939 (hereinafter referred to as ‘Old Act’). The question raised for this category is:
“Whether insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passeng-ers including owner or his representative of the goods, travell-ing in a goods vehicle under Section 95 of the said Act?”
4. The second category of cases arise out of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘New Act’) prior to its amendment in 1994. In this category also similar question is raised. The third category of cases also arise under the New Act but after its amendment by Act No.54 of 1994. In this category also the same question is raised
5. Thus the question raised in all these cases is about the liability of the insurance company, for the payment of compensa-tion to the claimants for those falling under the aforesaid field on account of their death or bodily injury while travelling in a goods vehicle. We are disposing of through this judgment, the group of cases falling under category one and three respectively. So far cases covered under category two, we will be dealing with it through a separate judgment and order.
6. The category one cases are all in which a claim petition has been filed by the claimants on account of death or bodily inju-ries of either the owners or his representative or the gratuitous passengers. In all these cases claimant claimed compensation under Section 95(1)(b)(i) and Clause (ii) of the proviso after its amendment in 1969 under the Old Act. The submission is, it is the insurance company, which is liable to pay the compensation notwithstanding that vehicle involved in the accident is a goods vehicle. On the other hand submission for the insurance company is that they are not liable for those passengers who travels by a goods vehicle, in view of the language used in Section 95 of the Old Act. The cases under this category need not detain us long as this question has been directly raised and decided in the case of Mallawwa (Smt.) and Ors. v. Oriental Insurance Co. Ltd. and Ors. (JT 1998 (8) SC 217 = (1999) 1 SCC 403). In this case the accidents were for the period between 1971 and 1985. This Court held, the insurance company is not liable for any damage in cases the gratuitous passengers including owner of the goods or his representative who travelled in a goods vehicle. So the first category of cases are disposed of in term of this declaration that liability to pay compensation to the claimants of such person is not on the insurance company but on the owner of the goods vehicle. In case insurance company had made part or full payment towards such compensation awarded, the same shall not be refunded from the claimant but is recoverable by the insurance company from the owners. In case the amount has been withdrawn by the claimants on furnishing any security, the said security shall stand discharged. In case no payment or part payment has been made by the claimant, we direct the owners of the vehicle to pay the awarded compensation to the claimant within a period of three months from today. Accordingly the first category of cases are disposed of.
7. This takes us to the third category of cases where similar question is raised regarding liability of the insurance company under the new Act after its 1994 amendment. The submission for the claimant is, the insurance company is liable to pay the compensation both in view of the decision of this Court in New India Assurance Company v. Satpal Singh and Ors., (JT 1999 (9) SC 416 = (2000) 1 SCC 237) and also in view of its 1994 amend-ment. This Court in this case, while interpreting Section 147(1)(i) and (ii) of the New Act holds, the insurance company liable to pay the compensation both for the owner and his repre-sentative and also for the gratuitous passengers travelling in a goods vehicle. In this third category, in spite of the said declaration the claimants have confined their claim only for the owner or his representative who were travelling in a goods vehi-cle and not for the gratuitous passenger. Since Satpal Singh (supra) confers right over gratuitous passengers also, which is not claimed by any of the claimants under this category, thus declaration of law in Satpal Singh (supra) is not required to be considered for this category, as claim for the owner and his representative is not disputed even by the learned Counsel for the insurance company, after its aforesaid 1994 amendment, that insurance company is liable to pay compensation for such person even when they were travelling in a goods vehicle. This is in view of 1994 amendment in Sub-clause (I) of Section 147 (1)(b) of the New Act in which the following words were brought in:
“…injury to any person, including owner of the goods or his authorised representative carried in a vehicle.”
8. Thus this category of cases are also disposed of by declaring that compensation awarded in such cases where deceased or injured persons were travelling in a goods carriage who were owner or his authorised representative, the insurance company is liable to pay the compensation. Any compensation or part of it not paid shall be paid to the claimant by the insurance company within eight weeks of this order. Any such amount withdrawn by the claimant which was deposited by the Insurance Company on furnishing secur-ity, such security stands discharged.
9. Leaned Counsel appearing for the insurance company has submit-ted that even though the insurance company is liable to pay to the legal representatives of the owner or authorised representa-tive, the question is, whether those travelling were truly owners of the goods or not? This in our considered opinion is a ques-tion of fact which we need not advert. Only in cases it is recorded by the Tribunal that they were not the owners then only insurance company could succeed that they are not liable to pay. In any case if insurance company has not raised any such issue they cannot be permitted to raise it now. Unless such an issue was raised, foundation laid in the pleading and if not adjudicat-ed by the Tribunal thereafter if a ground is raised before the High Court yet not decided there could be possibility of remand-ing the case otherwise it cannot be permitted to be raised. We have not been shown in any of these cases to qualify for the above. Accordingly we dispose of these cases falling under the third category, by declaring that the insurance company is liable to pay the compensation for the deceased or injured persons travelling in a goods carriage, who were either the owner or his representatives. These appeals are disposed of accordingly.
