The main legal point established in the judgment is the liability of the insurance company for compensation in the case of passengers traveling in a goods vehicle, based on the interpretation of Section 95(1)(b) of the Motor Vehicles Act, 1939, and the principle of stare decisis.

H. RANGAVITTALACHAR, J.

( 1 ) MFA No. 452 of 1990 and mfa No. 959 of 1990 arise against a common order passed by the claims tribunal, dharwad in mvc No. 302 of 1988.

( 2 ) MFA No. 452 of 1990 is filed by the united India insurance company challenging that portion of the award of the tribunal holding it liable to pay the compensation while mfa No. 959 of 1990 is filed by the legal representatives of sannabheemappa for enhancement of compensation.

( 3 ) THE deceased sannabheemappa along with his wife shivagangamma and the grandchild netravathi were travelling in the lorry bearing No. Myt 5554 with their goods on the poona-Bangalore road. The lorry met with an accident on account of the rash and negligent driving of the driver and in the ensuing accident all the 3 of them died. Legal representatives of the deceased filed separate claim petitions for compensation in mvc nos. 301, 302 and 303 of 1988.

( 4 ) TRIBUNAL after notice and enquiry awarded compensation as follows: (a) mvc No. 302 of 1988 Rs. 1,17,220/- (b) mvc No. 301 of 1988 Rs. 5,500/- (c) mvc No. 303 of 1988 Rs. 33,200/-

( 5 ) MFA nos. 959 and 721 of 1990 are filed for enhancement of compensation for the death of shivagangamma and the grand child.

( 6 ) TRIBUNAL after notice and enquiry has held that the lorry capsized on account of the rash and negligent driving of the driver and in the ensuing accident, 3 persons died.

( 7 ) WHILE awarding compensation insofar as mvc No. 302 of 1988 is concerned, it has awarded a sum of Rs. 1,17,220/ -. This amount tribunal has directed the owner and the insurance company which was appellant in mvc No. 452 of 1990 to jointly and severally to pay the same. As stated, this order is under challenge.

( 8 ) THE main ground on which the insurance company has filed this appeal is that since the deceased sannabheemappa was a passenger with goods in a goods vehicle, in view of the decision of this court in national insurance company limited v dundamma, and that of Smt. mallawwa v oriental insurance company limited and others, of the Supreme Court, tribunal was not correct in law to have saddled the company with the liability.

( 9 ) LEARNED counsel appearing for the insurance company in support of the contention contended that in mallawwa's case, supra, the supreme court has enunciated the law on the point which is to the following effect:"para 10: for the purposes of Section 95, ordinarily a vehicle could have been regarded as a vehicle in which passengers have carried if the vehicle was of that class. Keeping in mind the classification of vehicles, by the Act, the requirement of registration with particulars including the class to which it belonged, requirement of obtaining a permit for using the vehicle for different purposes and compulsory coverage of insurance risk, it would not be proper to consider a goods vehicle as a passenger vehicle on the basis of a single use or use on some stray occasions of that vehicle for carrying passengers for hire or reward. For the purpose of construing a provision like proviso (ii) to section 95 (1) (b), the correct test to determine whether a passenger was carried for hire or reward, would be whether there has been a systematic carrying of passengers. Only if the vehicle is so used then that vehicle can be said to be a vehicle in which passengers are carried for hire or reward. The high courts have expressed divergent views on the question whether a passenger can be said to have been carried for hire or reward when he travels in a goods vehicle either on payment of fare or along with his goods. It is not necessary to refer to those decisions which were cited at the bar as we find that all the relevant aspects were not taken into consideration while expressing one view or the other. We may only refer to the decision of the Orissa High Court in new india assurance company limited v kanchan bewa and others, where hansaria, j. , speaking for the full bench observed as under: "18. The aforesaid is not enough to

Click Here to Read the rest of this document