1 2) FA 1132-2010-J.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH AT NAGPUR FIRST APPEAL NO. 1132 OF 20 10 The Divisional Manager, The New India Insurance Company Ltd., Division No.1, Sitabuldi, Nagpur, through the Authorised Signatory of the Regional Office, Sitabuldi, Nagpur. ... Appellant .. Versus .. 1. Jashoda Wd/o Praneshwar Sardar, Aged about 60 years, Occ.: Household, 2. Jayant S/o Khagen Sardar, Aged about 6 years, 3. Kum. Jyoti D/o Khagen Sardar, Aged about 4 years, Minor, 4. Dinesh S/o Khagen Sardar, Aged about 2 years, Minor, Minor Guardian Grand-Mother Jashoda Wd/o Praneshwar Sardar, For self and minor guardian to Applicants All residents of Nazral Nagar, Village No.2, Tah. Sirpur, District Adilabad (AP). 5. Kisanchand Turani, Aged about 45 years, Occ.: Matador Owner, R/o: Durgapur, Behind Adilabad Bank, Durgapur, District Chandrapur. 6. Anand S/o Kashirao Wagh, Matador Driver, R/o: Ganj Ward, Chandrapur. ...Respondents Matter is dismissed against R.No.6 vide R(J) Order dt. 16/12/08. 2026:BHC-NAG:4859 2 2) FA 1132-2010-J.odt ------------------------------------------------------------------------------- Ms. S.H.Bhatia, Advocate for appellant. ------------------------------------------------------------------------------- CORAM : NEERAJ P. DHOTE, J. DATE : 24 /0 3 /2026 ORAL JUDGMENT This is an Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘M.V. Act’) by the Insurance Company against the judgment and award dated 09/07/2001 passed by the learned Motor Accident Claims Tribunal, Chandrapur (for short, ‘Tribunal’) in Motor Accident Claims Petition (MACP) No. 151/1997, preferred by Respondent nos. 1 to 4 for compensation on account of death of Khagen s/o. Praneshwar Sardar in the motor vehicular accident occurred on 01/03/1997, while the deceased was travelling in the Matador, which was owned by the Respondent no. 5 and insured with the Appellant - Insurance Company at the relevant time. The learned Tribunal awarded the compensation of Rs. 45,040/- alongwith interest @ 9% per annum. 2. It is submitted by the learned counsel for the Appellant - Insurance Company that, the deceased was the gratuitous passenger in the offending vehicle, which was the 3 2) FA 1132-2010-J.odt goods vehicle. Being the gratuitous passenger, he was not covered with the Insurance Police and therefore, was not entitled for compensation from the Insurance Company. She submits that, the judgment relied upon by the learned Tribunal in respect of the gratuitous passenger has been considered by the Hon’ble Apex Court in M/s. National Insurance Co. Ltd. V/s. Baljit Kaur & ors. {2004(1) Supreme 3} and so the Appeal be allowed and the pay and recover order be passed. 3. The Claimants filed the aforesaid Claim Petition with the contention that, the deceased was travelling as a gratuitous passenger in the offending vehicle. Undisputedly, the offending vehicle was insured with the Appellant - Insurance Company. The Insurance Company in its written statement, nowhere pleaded that, the Claimants were not entitled for the compensation from the Insurance Company on the ground that, the deceased was a gratuitous passenger. The learned Tribunal considered this aspect of the matter and made the following observations in its judgment and award in para 18, which are reproduced below:- “18. Mr. Ambatkar learned counsel on behalf of the Insurance Company argued that Khagen was 4 2) FA 1132-2010-J.odt traveling in the said matador as a fare paid passenger. But the company has led no evidence to prove the same. Moreover, in the Written Statement Exh-24 also it is nowhere mentioned that Khagen was traveling as a fare paid passenger in the said matador. Moreover, Claimant Jashoda has specifically stated in her evidence at Exh-32 that Khagen was knowing the driver of the said matador so he allowed her son to travel in the said matador without fare. Therefore, Khagen will have to be treated as a gratuitous passenger traveling in a goods vehicle. Now whether the gratuitous passenger traveling in a goods vehicle invites the liability of Insurance Company or not has been settled by Supreme Court in a case of New India Assurance Co. Ltd. Vs. Satpal Singh and others, 2000(1) Mah.L.J. 740 wherein it is observed as follows :- ‘Under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in the vehicle, no matter that the vehicle is of any type of class. Hence the decisions rendered under the old Act vis-à-vis gratuitous passengers are of no vial while considering the liability of the Insurance Company in respect of any accident which occurred or would occur after the new Act came into force'.” 4. Perusal of the above referred decision of the Full Bench of the Hon’ble Apex Court (i.e. M/s. National Insurance Co. Ltd. V/s. Baljit Kaur & ors.), shows that, the following observations are made:- “20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision 5 2) FA 1132-2010-J.odt contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. 21. 21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject matter of determination before the tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the tribunal in such a proceeding.” 6 2) FA 1132-2010-J.odt 5. It is clear from the observations in the above referred judgment that, the said legal position is made effective prospectively. Undisputedly, the accident in the case at hand was prior to the said decision, which is made applicable prospectively. In view of the said Full Bench decision and in the facts and circumstances of the case, the other decision relied on by the learned counsel for the Appellant in United India Insurance Co. Ltd. V/s. Tilak Singh and ors. {AIR 2006 SC 1576) is of no assistance to the Appellant. Thus, no interference is called for in the impugned judgment and award. The Appeal fails. Hence, the following order:- ORDER i) The Appeal is dismissed with no order as to costs. ii) The amount deposited by the Insurance Company pursuant to the award passed by the learned Tribunal, is permitted to be withdrawn by the Claimants, alongwith the interest accrued thereon, by following due procedure. iii) R & P be sent back to the learned Tribunal. [NEERAJ P. DHOTE, J.] B.T.K.