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2003 Supreme(Kar) 153
Karnataka High Court
NEW INDIA ASSURANCE COMPANY, BIJAPUR - Appellant
Versus
KUSUM - Respondent
Decided On : 02-17-03
M.F.A. : 2839 of 1998
ASHOK R.KALYAN SHETTY, R.A.Shiraguppi, R.Jayaprakash
Headnote:Right of gratuitous person
MOTOR VEHICLES ACT, 1988 - Section 147 - Right of gratuitous person - the expression "any person" occurring in the section covers a gratuitous person also.
[A. V. Srinivasa Reddy, J.] - There can be no dispute about the fact that a policy under Section 147 only covers a third party risk. The expression, any person as occurring in Section 147, exclusively means and refers to a third party, in respect of whom the insured has taken out a policy to cover any liability that may be incurred by him (the insured) by death or bodily injury of a third party. If we take out from the purview of a third party a person travelling in the private vehicle gratuitously, then it is not open to contend, placing reliance on the literal meaning of the expression, any person that the liability incurred by the insured in respect of such a gratuitous passenger also should be indemnified by the insurer. If such an argument is to be accepted, then there was absolutely no need for the Legislature to enact sub-clause(ii) of clause (b) of sub-section (1) of Section 147 in order to cover the death or bodily injury of a passenger of a public service vehicle as it would be rendered superfluous if the expression, any person is to be understood as to cover any and every person because sub-clause (i) does not make any distinction between a private or a public vehicle. The legislature has taken care to bring within its sweep even such class of persons who are not third parties but who are co-passengers travelling in the offending vehicle but whose interests the Legislature wanted to protect by making it compulsory for the person specified to take out a policy under the Act to cover the risks involved to these persons. The fact that a gratuitous passenger does not figure as one of those person is ample proof of the intention of the Legislature not to cover a "gratuitous passenger under the policy. Thus, the finding recorded by the Tribunal foisting liability on the insurance company is incorrect and is liable to be set aside.
Cases Referred:
2002 AIR SCW 5259; 2000 (1) SCC 237; AIR 1992 Ori 110=1992 ACJ 851;
AIR 1990 A.P. (DB) 370;
ILR 2000 Kar 3796;
ILR 2000 Kar 886;
ILR 2002 Kar 870.
( 1 ) THE present appeal by the insurance company arises from an order dated 10th February, 1998 of the Motor Accidents Claims Tribunal, bijapur in M. V. C. No. 266 of 1996 allowing the petition filed before it and granting a compensation of Rs. 1,19,500. 00 and foisting the liability of paying the compensation on the insurance company. Aggrieved, the insurance company has preferred this appeal claiming that it is not liable to pay the compensation.
( 2 ) THE claim petition was laid before the Tribunal by the legal representatives of the deceased claiming compensation of Rs. 4,30,000. 00 for the death of Balakrishna in an accident which occurred on 7-3-1996 at about 4 p. m. in the jeep in which the deceased was travelling. It was claimed by the petitioners that the jeep was being driven in a rash and negligent manner as a result of which the jeep skidded off the road and turned turtle. In the resultant impact two of the travellers inside the jeep died on the spot and two others succumbed to the injuries in the hospital. The Tribunal formulated the following four points for its consideration:1. Whether petitioners prove that on 7-3-1996 at about 1600 hours near Kanamadi Village the driver of the jeep No. MHO 3/b-2592 drove it in high speed, rash and negligent manner and caused the accident pleaded?2. Whether the petitioners further prove that on the said date, time and place the deceased Balakrishna met with an accident and succumbed to grievous injuries?3. Whether the petitioners are entitled for compensation? If so, what amount from which respondent?4. What order?the Tribunal answered points 1 and 2 in the affirmative and in regard to point 3 the Tribunal found that the vehicle was insured with the insurance company and therefore the insurance company was liable to pay the compensation amount. Hence, the present appeal by the insurance company.
( 3 ) THE sole point that arises for my consideration in this appeal is: whether the Tribunal was right in foisting the liability to pay compensation on the insurance company?
( 4 ) I have heard the learned Standing Counsel Mr. Jaiprakash for the insurance company and Mr. Ashok R. Kalyan Shetty for respondent 7, the owner of the jeep in question.
( 5 ) MR. Ashok R. Kalyan Shetty very strenuously submitted that after amendment of Section 147 by Act 54 of 1994 on 14-11-1994, irrespective of the fact whether the vehicle involved in the accident is a goods vehicle or a private vehicle, the insurance company is liable to pay compensation because the insurance company is required under Section 147 of the motor Vehicles Act, to compuisorily cover all persons travelling in a vehicle. He relied on several decisions of the Apex Court and this Court in support of his submission. However, the learned Standing Counsel mr. Jaiprakash, on the other hand, submitted that the insurance company is not liable to pay damages in respect of death or bodily injury suffered by a gratuitous passenger travelling in a private vehicle.
( 6 ) THE entire thrust of the argument of Mr. Kalyan R. Shetty is based on interpretation of the words 'any person' as occurring in sub-clause (i) of clause (b) of Section 147. In order to better understand the import of the provision and the context in which the words 'any person' have been employed, I quote Section 147 of the Act. It reads:"147. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons 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
