First Appeal from Order No.145 of 2010,First Appeal from Order Nos.83-86 of 2010

23rd May, 2013.

Petitioner Counsel: BALENDU SHEKHAR
Respondent Counsel: JITENDRA NARAIN MISHRA, PRAKASH CHANDRA

Cases Cited:
Laxmi Devi Vs. Mohd. Tabbar, 2008(3) ALL MR 872 (S.C.)=2008 (2) TAC 304 : 2008(2) TAC 394 [Para 5,12]
National Insurance Company Ltd. Vs. Rattani & Ors., 2009 ALL SCR 246=2009 (1) T.A.C. 420 (S.C.) [Para 7,9,25]
National Insurance Company Ltd. Vs. Cholleti Bharatamma & Ors., 2008(1) ALL MR 436 (S.C.)=2008 ACJ 268 [Para 7]
New India Assurance Company Ltd. Vs. Bismillah Khan, (2009) 5 SCC 404 [Para 8,9]
National Insurance Company Limited Vs. Bommithi Subbhayamma, 2005(2) TAC 1 [Para 8,9,25]
National Insurance Company Ltd. Vs. Salit Bharat & Ors., 2008 ACJ 268 [Para 9]
New India Assurance Company Ltd. Vs. Asha Rani & Ors., 2013 ALL SCR (O.C.C.) 114=(2003) 3 SCC 233 [Para 9,25,28,29,30]
Oriental Insurance Company Limited Vs. Meena Variyal & Ors., 2007 ALL SCR 1697 [Para 9]
Syed Basheer Ahamed & Ors. Vs. Mohammad Jameel & Anr., 2009(1) ALL MR 914 (S.C.)=(2009) 2 SCC 225 [Para 9]
State of Haryana & Anr. Vs. Jasbir Kaur & Ors., 2003(4) ALL MR 742 (S.C.)=2003 (3) TAC 569 [Para 9]
Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., 2009(4) ALL MR 429 (S.C.)=2009 (6) SCC 121 [Para 18]
New India Assurance Company Vs. Satpal Singh & Ors., 2000(1) ALL MR 346 (S.C.)=(2000) 1 SCC 237 [Para 27,28]
Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy & Ors., 2003(2) ALL MR 316 (S.C.) [Para 30]
Machindranath Kernath Kasar Vs. D.S. Mylarappa & Ors., 2008 ACJ 1964 [Para 36]
Nirendra Vs. Steel Authority of India Ltd. & Ors., Dt.5-03-2010 [Para 36]
Farhad K. Wadia Vs. Union of India & Ors., Dt.5-12-2008 [Para 36]
India House hold & Health Care Ltd. Vs. L.G. Household & Healthcare Ltd., 2007 ALL SCR 1690=2007 AIR SCW 1721 [Para 36]
Oriental Insurance Co. Ltd. Vs. Iqbal Ahmad & Ors., 2009 ACJ 1151 [Para 36]
Union of India Vs. Prabhakaran Vijaya Kumar & Ors., 2008(5) ALL MR 917 (S.C.)=2008 (III) D.M.P. 193 [Para 38]
UPSRTC Vs. Smt. Guddi Devi & Ors., 2009 (III) D.M.P. 338 [Para 38]
Sanjeev Gupta & Ors. Vs. Ram Pal & Ors., 2011(I) ACCD 37 [Para 40]
Yogendra Singh Vs. M.A.C.T./A.D.J. Fatehpur & Ors., 2005 (2) T.A.C. 312 [Para 41]
Santosh Kumar Vs. M.A.C.T. & Ors., 2008 (4) T.A.C. 412 [Para 41]

JUDGMENT

JUDGMENT :- All the above mentioned connected appeals arise out of a common accident which occurred on 21.01.2006. The said accident occurred when the driver of the Vehicle No. UP 34-C- 8039 lost control of the vehicle and after hitting some persons standing on the side of the road turned turtle and two persons standing on the side of the road and some persons sitting on the vehicle died.

2. Following claim petitions were filed before the learned Motor Accident Claim Tribunal Lucknow, seeking compensation for death of the victims of the accident:

(i) Claim Petition No. 53/2006, Manohar Lal and others Vs. Smt. Vimla Rani Chaurasia and another, was filed by the heirs and L.R's seeking compensation for death of Late Smt. Ram Dulari, who was travelling in the vehicle. Learned Tribunal awarded compensation of Rs.1,64,500/- and imposed the liability on the opposite party no.1- Vehilce owner. Further, the learned Tribunal dismissed the claim petition, against the opposite party no.2 insurer of the vehicle. The claimants assailed the said judgment and order/award dated 31.10.2009 by means of FAFO No.83/2010.

(ii) Claim Petition No. 55/2006, Pankaj Kumar Mishra and others Vs. Smt. Vimla Rani Chaurasia and another, was filed by the children of the deceased, Late Dinesh Kumar Mishra, who was standing on the side of the road, was hit by above vehicle. Learned Tribunal imposed, the liability to pay compensation of Rs. 2,60,500/-, on the Insurance Company and also granted the right to recover from the opposite party no.1 vehicle owner. The claimants assailed the said judgment and order/award dated 31.10.2009, by means of FAFO 84/2010.

(iii) Claim Petition No. 52/2006, Pankaj Kumar Mishra and others vs. Smt. Vimla Rani Chaurasia and another, was filed by the children of the deceased Late Prakashini Devi Mishra, who was standing on the side of the road and was hit by the above vehicle. Learned Tribunal has awarded the compensation of Rs.1,64,500/- and directed the opposite party no.2 insurance company to pay the same, and recover the amount from opposite party no.1-vehicle owner. The claimants assailed the said judgment and order/award dated 31.10.2009, by means of FAFO No.85/2010.

(iv) Claim Petition No. 51/2006, Smt. Sudha Shukla and others vs. Smt. Vimla Rani Chaurasia and Anors, was filed by the widow and children of Late Shiv Ratan Shukla, who was traveling in the aforesaid vehicle. Learned Tribunal awarded compensation of Rs.3,29,500/- and imposed the liability on the opposite party no.1- vehicle owner. The claimants challenge the said judgment and order/award dated 31.10.2009, by means FAFO No.86/2010.

(v) Claim Petition No. 57/2006, Ram Kumar Awasthi and another vs. Smt. Vimla Rani Chaurasia and another was filed by the parents of the deceased Late Ashish Kumar Awasthi, who was traveling in the above vehicle. The Tribunal awarded compensation of Rs.1,74,500/- and imposed the said liability on opposite party no.1 vehicle owner. The claimants assailed the said judgment and order/award dated 31.10.2009 by means of FAFO No.145/2010.

3. The learned Tribunal has held that the insured vehicle was being plied in breach of the insurance policy and the victims mentioned in Claim Petition Nos. 51/2006, 53/2006 and 57/2006, were traveling as gratuitous passengers. Thus, in Claim Petition Nos.51/2006, 53/2006 and 57/2006, the learned Tribunal, imposed the liability to pay compensation on opposite party no.1- vehicle owner. Further, since the Tribunal observed that the insured vehicle was being plied in the breach of insurance policy, and the victims mentioned in Claim Petition Nos. 52/2006 and 55/2006, were hit by such vehicle, therefore, the right to recovery from the opposite party no.1 vehicle owner, was granted to the opposite party no.2 insurance company, after paying the compensation to the claimants.

4. Heard Sri Balendu Shekhar, learned counsel for the appellant and Sri J.N. Mishra, learned Counsel for Insurance Company and learned counsel for the owner.

5. It was argued from the side of appellants that the notional income should have been treated to be Rs. 3000/- per month. Learned Tribunal has failed to follow the principles as has been laid by Hon'bel Apex Court in Laxmi Devi Vs. Mohd. Tabbar 2008 (2) TAC 304 : [2008(3) ALL MR 872 (S.C.)].

6. It was further argued that as the deceased persons were travelling in the bus as owner of the goods so, they are entitled to be compensated by the Insurance Company. It has further been argued that the persons who were standing on the road and died after being crushed by the Vehicle are also entitled for compensation from the Insurance Company as they were third parties for the insurer and Insurance Company was under obligation to indemnify the owner for third party.

7. Refuting the arguments advanced by learned counsel for the appellant, Sri J.N. Mishra learned counsel for the Insurance Company argued that there is no evidence on record to show that persons traveling in the bus were owner of the goods. It has also not been proved by the appellants that some goods of the deceased persons were loaded on the vehicle and they were travelling as the owner of the goods; it has also been argued that since the vehicle was being plied against the Insurance Policy hence, Insurance Company was not liable to pay the amount of compensation. Learned counsel for Insurance Company has relied upon the case of National Insurance Company Ltd. Vs. Rattani & Ors. 2009 (1) T.A.C. 420 (S.C.) : [2009 ALL SCR 246], National Insurance Company Ltd. Vs. Cholleti Bharatamma & Ors. 2008 ACJ 268 : [2008(1) ALL MR 436 (S.C.)].

8. Learned counsel for the appellants have relied upon the case of New India Assurance Company Ltd. Vs. Bismillah Khan (2009) 5 SCC 404, National Insurance Company Limited Vs. Bommithi Subbhayamma 2005(2) TAC 1.

9. Learned counsel for the appellants has also relied upon following cases:-

(i) National Insurance Company Ltd. Salit Bharat & Ors. 2008 ACJ 268. New India Assurance Company Ltd. Asha Rani & Ors. (2003) (3) SCC 233 : [2013 ALL SCR (O.C.C.) 114]

(ii) The National Insurance Company Limited Vs. Rattani 2009 (1) TAC 420 : [2009 ALL SCR 246]

(iii) New India Assurance Company Ltd. Vs. Bismillah Khan: (2009) 5 SCC 404

(iv) National Insurance Company Limited Vs. Bommithi Subbhayamma : 2005(2) TAC 1

(v) Oriental Insurance Company limited Vs. Meena Variyal and Ors. 2009 : [2007 ALL SCR 1697]

(vi) The New India Assurance Company Limited Vs. Asha Rani (2003) 2 SCC 233 : [2013 ALL SCR (O.C.C.) 114]

(vii) Syed Basheer Ahamed and Ors. vs. Mohammad Jameel and another (2009) 2 SCC 225 : [2009(1) ALL MR 914 (S.C.)]

(viii) State of Haryana and another vs. Jasbir Kaur and others 2003 (3) TAC 569 : [2003(4) ALL MR 742 (S.C.)]

10. Before entering into the liability of the owner or Insurance Company, it would be proper if the matter of income and compensation is decided first.

11. In the case of FAFO No.83/2010 (claim petition no.53/2010) the Tribunal has assessed the income of the deceased to be 15000/- per annum and has deducted 1/3 for her personal expenses. In FAFO No.145/2010 (claim petition 57/2006) the annual income has been assessed to be Rs.2500/- per month. In FAFO No.86 of 2010 (claim petition no.51 of 2006) the monthly income has been assessed to be Rs. 2500/- per month. In FAFO No.85/2010 (claim petition no.52/2006) the monthly income has been assessed to be Rs. 5000/- per annum. In FAFO No.84/2010 (claim petition no.55/2006) the income has been assessed to be Rs. 2000/- per month.

12. In the case of Laxmi Devi Vs. Mohd. Tabbar 2008(2) TAC 394 : [2008(3) ALL MR 872 (S.C.)] Supreme Court, the Apex Court has held that nowadays the notional income should be treated to be 3000/- per month. The reasons given by the Tribunal to deviate from the principles are not based on sound reason and in view of this in all the cases notional income of the each of the deceased is fixed to be Rs. 3000/- per month.

13. It is a known principle that woman too contribute in the household work by their labour and time so if one has to enagage some help for doing the work which she performs in her household work, then it will also be available on payment so in the case of woman also, the notional income should be treated as Rs. 3000/-.

14. In FAFO No.84 of 2010 treating the notional income to be Rs.3000/- per month and deducting 1/3 as personal expenses then the dependency comes to Rs. 24,000/-. The Tribunal has also applied multiplier of 16, so multiplying the dependency from 16 comes to Rs. 24,000 X 16= 3,84,000/-. Apart from that claimants are entitled to Rs. 2000/- for funeral expenses and Rs. 2500/- for loss of estate thus they are entitled to the payment of Rs.3,84,000 + 4500=3,88500/-

15. In FAFO No.85/2010 considering the notional income to be 36,000/- per annum and deducting 1/3 as personal expenses the annual dependency comes to Rs. 24,000/- per annum, the Tribunal has applied multiplier of 16, so the total amount comes to Rs.24,000 X 16=3,84,000/=. Apart from that the claimants are entitled to Rs. 2000 as funeral expenses and Rs. 2500/- for loss of estate so total amount comes to Rs.3,84,000 + 4500 =3,88500/-.

16. In FAFO No.86 of 2010 considering the notional income to be Rs. 3,000/- per month and deducting 1/3 for funeral expenses, the annual dependency comes to Rs.24,000/-. The Tribunal has applied multiplier of 16, so the total amount comes to Rs.24,000 X 16=3,84,000/=. Apart from that claimant no.1 is wife, so she is entitled to Rs.5000/- for loss of consortium, Rs. 2000/- for funeral expenses and Rs. 2500/- for loss of estate so total compensation amount comes to Rs.3,84,000+5000+4500=3,93,500/=.

17. In FAFO No.83/2010 treating the notional income as Rs.3000/- per month and deducting 1/3 for personal expenses, the annual dependency comes to Rs.24,000/-. The Tribunal has applied multiplier of 16, so the total compensation amount comes to Rs.24,000 X 16=3,84,000/=. Apart from that claimants are entitled of Rs.2000/- as personal expenses and Rs. 2500/- for loss of estate, so total compensation amount comes to Rs.3,84,000 + 4500 =3,88500/-.

18. In FAFO No.145/2010 considering the notional income to be Rs. 36,000/-, the deceased was unmarried and the claimants are his father and mother, so deducting 1/2 for personal expenses, the annual dependency comes to Rs.18,000/- per annum. The Tribunal has applied multiplier of 17. As the claimants are father and mother so multiplier is to be applied on the age of parents so in view of principles laid down by Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation & Another 2009 (6) SCC 121 : [2009(4) ALL MR 429 (S.C.)] multiplier of 14 is to be used so annual dependency comes to Rs.18,000 X 14=2,52,000/- .Apart from that claimants are entitled to Rs.2000/- as funeral expenses and Rs. 2500/- for loss of estate so total compensation amount comes to Rs.2,52,000 + 4500 =2,56,500/-.

19. After ascertaining the amount of compensation it is to be decided as to who is liable to pay compensation, whether the owner is liable to pay or the Insurance Company is liable to pay the compensation. Admittedly, the deceased in FAFO No.84/2010 (claim petition no.55/2006) and FAFO No.85/2010 (claim petition 52/06) were standing on the road side and the driver of the vehicle U.P. 34-C08039 hit them due to which they both died.

20. Learned Tribunal has directed the Insurance Company to pay the amount of compensation and recover that from the owner on the basis of the fact that vehicle was not being plied according to the Insurance Policy.

21. These two persons were not travelling on the vehicle so they are third party to the insurer and were statutorily insured as per Section 147 of the Motor Vehicle, 1988 which reads as follows:

"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 authorized 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 in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, (8 of 1923), in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

Corresponding Law: S. 95(2) of Act IV of 1939

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. Corresponding Law: S. 95(4) of Act IV of 1939

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

Corresponding Law: S. 95(4-A) of Act IV of 1939

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."

22. This clearly goes to so that every Insurance Policy covers the risk of third party irrespective of the fact that the vehicle was being plied against the insurance policy or not, hence, the liability to pay compensation in claim petition is squarely upon the Insurance Company without right to recovery because they are bound to indemnify the liability of the owner.

23. Thus the FAFO No.84/2010 (claim petition no.55/2006) and FAFO No.85/2010 (claim petition no.52 of 2006) deserve to be allowed and award is liable to be modified accordingly.

24. Now, we will come to FAFO No.83/2010, FAFO No.86/2010 and FAFO No.145/2010 and consider the evidence and its implication.

25. It was argued from the side of Insurance Company that :

(a) In National Insurance Company Limited Vs. Rattani reported in 2009 (I) TAC 420 : [2009 ALL SCR 246], the Hon'ble Supreme Court held that all the persons traveling in a goods vehicle with their goods, cannot by any stretch of imagination be said to be owners of goods. Similarly, in the instant accident, only Ata Ullah was traveling along with his polished rice bags as owner of goods and was thus, covered under the policy, but the other passengers who were traveling allegedly along with their goods, cannot be deemed to be traveling as owner of goods.

(b) Hon'ble Supreme Court has held in a catena of decisions that insurance company shall not be liable to pay compensation for injury/death of persons traveling in a goods vehicle, as gratuitous passengers. Such judgments include. The New India Assurance Company Limited Vs. Asha Rani reported in (2003) 2 SCC 233 : [2013 ALL SCR (O.C.C.) 114], also, National Insurance Company Limited vs. Bommithi Subbhayamma reported in 2005 (2) TAC 1, etc.

(c) Appellants-claimants contention in the above mentioned appeals, holding opposite party no.2- insurance company liable for covering the risk of all the passengers, who had boarded the vehicle along with their goods, is not legally tenable. This is evident from the language of section147(1)(b)(i), which says that the insurer shall be liable for death or bodily injury to the owner of goods or his authorized representative carried in the vehicle. It does not say, "owners of goods" and "his authorized representatives"; thus, the legislative intent, is apparently, to cover only one person in the goods vehicle, traveling as owner of the goods.

The driver of the vehicle no. UP 34 C/7039, who was examined in claim petition filed due to death of Ata ullah has before the Tribunal stated on oath that he was carrying polished rice of Late Ataullah who was also traveling with it. But the said driver has not been examined in any of the other claim petitions. Thus, all the other persons (victims mentioned in FAFO Nos. 83/2010, 86/2010 and 145/2010) traveling in the said vehicle, were travelling as gratuitous passengers.

(d) The appellants - contention, holding opposite party no.2- insurance company, liable for covering the risk of passengers, other than Late Ataullah, is not legally tenable also on account of the fact that it shall result in unjust enrichment of the claimants/insured vehicle owner at the cost of the opposite party no.2- insurance company, though, legally the liability to pay compensation rests on the opposite party no.1- vehicle owner.

26. By the Motor Vehicles (Amendment) Act, 1994 (for short, '1994 Amendment Act'), Section 147 came to be amended. The expression "including owner of the goods or his authorised representative carried in the vehicle" was added in Section 147. The amended Section 147 has been considered by Apex Court in various decisions, some of which we intend to refer a little later.

27. In New India Assurance Company v. Satpal Singh and others, (2000) 1 SCC 237 : [2000(1) ALL MR 346 (S.C.)] Apex Court with reference to the provisions in the Motor Vehicles Act, 1939 and the provisions in 1988 Act, particularly Section 147, held that under the 1988 Act an insurance policy covering third party risk was not required to exclude gratuitous passengers in a vehicle no matter that the vehicle is of any type or class. It was also held that the earlier decisions of this Court rendered under the 1939 Act vis-à-vis gratuitous passengers were of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the 1988 Act came into force.

28. The correctness of the judgment in Satpal Singh's [2000(1) ALL MR 346 (S.C.)] case was doubted, inter alia, in the case of Asha Rani (2003)2 SCC 223 : [2013 ALL SCR (O.C.C.) 114]. It was felt by the Apex Court that Satpal Singh's case needed a relook insofar as cases covered under the 1988 Act prior to its amendment in 1994 were concerned. A three-Judge Bench of Apex Court in Asha Rani noticed Section 147 of the 1988 Act prior to its amendment in 1994 and after its amendment in 1994 and held in paragraph 9 of the Report (Pgs. 231-232) as follows:

"In Satpal case [(2000) 1 SCC 237] the Court assumed that the provisions of Section 95(1) of the Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment.

But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amendment Act of 1994 is examined, particularly Section 46, by which the expression "injury to any person" in the original Act stood substituted by the expression "injury to any person including owner of the goods or his authorised representative carried in the vehicle", the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if the 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.

The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression "including owner of the goods or his authorised representative carried in the vehicle" which was added to the pre-existing expression "injury to any person" is either clarificatory or amplification of the pre-existing statute.

On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal case therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of the goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury."

29. Hon'ble Mr. Justice S. B. Sinha, J. in his supplementary judgment in Asha Rani [2013 ALL SCR (O.C.C.) 114] (supra) , while concurring with the above, observed as follows (Pg. 235):

"26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.

27. Furthermore, sub-clause (i) of clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.

28. An owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237] is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy where for even no premium is required to be paid.

30. Asha Rani [2013 ALL SCR (O.C.C.) 114] (supra) has been relied upon in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others [2003(2) ALL MR 316 (S.C.)] wherein it was held as under (Pgs. 342-343):

"....The difference in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in the definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the carriage of "goods". Carrying of passengers in a goods carriage is not contemplated in the Act."

31. From the above discussion, it is clear that it is for the claimants to prove that the deceased were travelling in the vehicle as owner of the goods. In all three cases, the owner/driver or the Insurance Company have not adduced any evidence so we have to consider the statement of the witnesses examined by claimants. In FAFO No.83 of 2010 (claim petition no.53/2006) P.W.1 is not an eye witness, P.W. 2 Atma Prakash Tiwari is an eye witness and he has only stated that at the scene of accident he has seen 8 to 10 cans full of milk 10 to 12 packages of medicines and about 3 to 4 sacks of grain on the spot. He has further admitted that he is not aware as to where all those goods had gone after accident. Apart from that there is no evidence on this point. An FIR was registered regarding the case but no site plan has been filed by the claimants to show cans of milk, boxes of Medicines and sack of grain were scattered there. There is no G.D. entry that the above medicine and goods were found on the spot. There is nothing on record to show that claimants have ever claimed those goods and they were even given in supurdgi . In view of this, there is no cogent and reliable evidence, which would have been available to the claimants of FAFO No.83/2010 (claim petition no.53/2006).

32. The evidence of P.W. No. 2 Atma Prakash Tiwari, is thus not supported by documentary evidence.

33. In FAFO No.145/2010 (claim petition no.57 of 2006), apart from P.W. 2 Atma Prakash Tiwari, P.W. 3 Rajjan Shukla was examined to show that deceased Ashish Kumar was engaged in selling of milk but he has nowhere stated that he has seen the deceased loading his cans of milk in vehicle concerned. He has also admitted that he is not aware as to how much milk was carried by the deceased. He has not gone to spot and has not seen the jeep, goods and injured person thus in this case also the claimants have failed to prove that deceased was travelling in the jeep as owner of the goods.

34. In the case of FAFO No.86/2010 (claim petition no.51/06), apart from Atma Ram Tiwari, (P.W. 3) Basant Kumar Singh has been examined to show that deceased was supplying the medicines to shopkeepers near Sidhauli after taking from his shop but this witness has not seen and proved that deceased was carrying his medicines from the vehicle in question.

35. Thus, there is no evidence to show that deceased persons were carrying their goods from the vehicle and were travelling in the jeep as owner of the goods.

36. Learned counsel for the appellant has relied upon the cases of Machindranath Kernath Kasar Vs. D.S. Mylarappa & Others 2008 ACJ 1964 Supreme Court, Nirendra Vs. Steel Authority of India Ltd. & Ors. decided on 5th March 2010, Farhad K. Wadia Vs. Union of India & Ors. decided on 5th December 2008 by the Hon'ble Supreme Court, India House hold & Health Care Ltd. Vs. L.G. Household & Healthcare Ltd. 2007 AIR SCW 1721 : [2007 ALL SCR 1690] Supreme Court, Oriental Insurance Co. Ltd. Vs. Iqbal Ahmad & Ors. 2009 ACJ 1151 Allahabad, to show that doctrine of comity or amity applied to the cases where one of the cases of the same nature and the same accident has been decided and attained finality. It was argued that in the case of Ataullah, the Tribunal has decided that Ataullah was driving on the vehicle concerned as an owner of the goods hence all other persons are also be treated as persons travelling in the vehicle as owner of the goods.

37. In the case of Ataullah which has been decided by Tribunal at Sitapur, the driver of the vehicle has been examined from the side of owner and he has admitted that Ataullah was travelling in the vehicle as owner of the goods. In all other claim petitions driver has not been examined, so the burden squarely lies on the claimants and they have failed to discharge this burden so doctrine of comity or amity cannot be applied in the instant cases.

38. Learned counsel for the appellant has relied upon the case of Union of India Vs. Prabhakaran Vijaya Kumar & Ors. 2008 (III) D.M.P. 193 : [2008(5) ALL MR 917 (S.C.)] Supreme Court to show that there is no good reason to discard the evidence of eye witness. Again, learned counsel for the appellant has relied upon the case of UPSRTC Vs. Smt. Guddi Devi & Ors. 2009 (III) D.M.P. 338 Allahabad High Court to press the above point. In the instant cases, evidence of the eye witness is not supported by documentary evidence which could have been easily available by going through the police record hence so called eye witness was believed in respect of the accident but the Tribunal has not believed him for ascertaining the fact that the deceased persons were travelling in the vehicle as owner of the goods.

39. Learned counsel for appellant has argued that FIR is not substantive peace of evidence and cannot be placed on pedestal higher than statement made before the Court. It is true that FIR is not a substantial piece of evidence but the claimants in above three claim petition were unable to show that deceased were travelling on the vehicle as owner of the goods.

40. From the above analogy, the decision relied upon by the counsel for the appellant in Sanjeev Gupta & Ors. Vs. Ram Pal & Ors. 2011(I) ACCD 37 Allahabad High Court Lucknow Bench is of no help to the claimants.

41. Learned counsel for the appellant has relied upon the decisions of Yogendra Singh Vs. M.A.C.T./A.D.J. Fatehpur & Ors. 2005 (2) T.A.C. 312 Allahabad High Court and Santosh Kumar Vs. M.A.C.T. & Ors. 2008 (4) T.A.C. 412, Allahabad High Court, and argued that the amount claimed ought to have been given to the claimants but the learned Tribunal has erred in not giving the total amount to the claimants.

42. In none of the above FAFOs appellants have claimed that the entire awarded amount be given to them in cash . In view of this , there is no need to interfere in the manner of distribution of awarded amount provided in the award.

43. In the result, FAFO No.84 of 2010 is partly allowed and award is modified and it is held that claimants are entitled to Rs. 3,88500/-. The liability to pay this amount is on the Insurance Company.

44. FAFO no. 85 of 2010 is partly allowed and award is modified. The claimants are entitled to Rs. 3,88,500/- The liability to pay this amount is of the Insurance Company.

45. FAFO No.83/2010 claim petition is partly allowed. Claimants are entitled to amount of Rs. 3,88,500/-. The liability to pay the amount is of the owner as determined by the Tribunal.

46. FAFO No.86 of 2010 is partly allowed. Claimants are entitled to modified award of Rs.3,93,500/-. The burden to pay shall be on the owner of the vehicle as determined by the Tribunal.

47. FAFO No.145 of 2010 is partly allowed. The award is modified and claimants are entitled to Rs.2,56,500/-and the burden to pay shall be on the owner as held by the Tribunal.

48. Needless to say that appellants in all above FAFOs shall also be entitled to get 6% simple interest per annum on enhanced amount too, from the date of filing of petition till the date of actual payment. The manner of distribution of the awarded amount shall be the same as has been held by the Tribunal.

49. Owner of the vehicle and Insurer are directed to pay the awarded amount within two months, failing which claimants/appellants shall be entitled to get the awarded amount through the Tribunal.

Ordered accordingly.