IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 15 of 2006. Reserved on.: 11.09.2009 Date of decision : 15.10.2009 New India Insurance Company Ltd. …Appellant Versus Kushla Devi and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1. For the Appellants: Mr. Sanjiv Sood, Advocate. For the respondents No. 1 to 4: Mr. Sunil Mohan Goel, Advocate. For the respondents No. 5 and 6: Mr. Onkar Jairath, Advocate. Deepak Gupta, J. This appeal by the Insurance Company is directed against the award passed by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, in M.A.C. Case No. 76 of 2003 decided on 7.5.2005. Briefly stated the facts of the case are that the Ravinder Kumar died in an accident of truck No. HP-20A-3463, which took place on 19.09.2003. The claimants who are the widow, two minor children and mother of Ravinder Kumar filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. In the claim petition it was alleged that the deceased Ravinder Kumar was aged 29 years. He was doing the work of agriculture, horticulture and Chowdhary, i.e. labourer engaged in loading and unloading of goods. It was alleged that the deceased was travelling in the vehicle but in the 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 claim petition there is no allegation what-so-ever as to in what capacity the deceased was travelling in the vehicle. Reply to the petition was filed by the respondent No.2, the driver of the truck. He took the specific plea that the deceased was travelling in the truck as an unauthorized passenger. It was alleged that the accident took place due to the giving way of the retaining wall and the driver was not negligent. Respondent No.1, who is owner of the vehicle adopted the reply filed by the driver. The Insurance Company in its reply raised various defences including the defence that the deceased was an unauthorized passenger in the vehicle and therefore the Insurance Company was not liable. The learned Motor Accident Claims Tribunal came to the conclusion that the accident occurred due to the negligence of the driver. It assessed the income of the deceased at Rs.3,000/- per month. A sum of Rs.6,00 was deducted for the personal expenses of the deceased and dependency of the family was assessed Rs.2400/- per month or Rs.28,800/- per year. Multiplier of 14 was applied and compensation assessed at Rs.4,03,200/-. The learned trial Court held that the deceased was travelling as a labourer and was therefore not an unauthorized or gratuitous passenger travelling in the truck. It also held that the driver had a valid driving license. The Insurance Company was thus held liable to pay the compensation. Hence, this appeal by the Insurance Company. I have heard Shri Sanjiv Sood, learned counsel for the appellant, Shri Sunil Mohan Goel, counsel for respondents No. 1 to 4 and Shri Onkar Jairath, counsel for respondents No. 5 and 6. 3 The main contention raised on behalf of the Insurance Company is that the learned Tribunal has built up a case for the claimants which was neither pleaded nor proved by them. Learned counsel for the Insurance Company submits that from the evidence on record it is apparent that the deceased was a gratuitous passenger and the Insurance company has wrongly been held liable. He also submits that the driver did not have a valid driving license to drive the vehicle in question. As noted above, in the claim petition there was no averment as to in what capacity the deceased was travelling in the truck. In column No. 4 where occupation of the deceased was to be given it is mentioned that he is agriculturist, horticulturist and Chowdhary. The owner and driver of the truck took a specific stand that the deceased was travelling as an unauthorized occupant in the truck. This was the stand of the Insurance Company also. Smt. Kushla Devi, widow of the deceased appeared as PW-1 and stated that her husband used to do the work of loading of apple boxes during the apple season. In addition, he also used to do the work of electricity wiring and plumber, etc. She states that they own an apple orchard, which is in the name of her father-in- law. According to her, the deceased was carrying 50 apple boxes in the truck in question and was travelling as owner of goods. She could not produce any documentary evidence in support of her assertion that the deceased was travelling as owner of the apple boxes. PW-2 is a witness to the accident. He clearly states that he does not know whose apple boxes were being carried in the truck. 4 The owner and driver of the truck did not enter into the witness box. Even if the evidence led by the Insurance Company on this issue is discarded it is apparent that there was no evidence worth the name to show as to in which capacity the deceased was travelling in the truck. In the claim petition, there was no allegation made in this behalf. In evidence, the widow tried to put up a new case that the deceased was carrying 50 apple boxes and was therefore travelling as owner of goods. The learned Tribunal has built up a totally new case, which was neither pleaded nor proved before him. According to the learned Tribunal the deceased was travelling as a labourer in the truck. I am constrained to observe that this finding of the learned Tribunal is totally contrary to the pleadings and the evidence led on record. When the owner and the driver themselves states that the deceased was an unauthorized passenger and nothing is said in the claim petition with regard to the capacity in which the deceased was travelling the Tribunal could not have built up a case which was not even pleaded or proved by the claimants. Merely because the Insurance Policy covered liability in respect of four labourers it could not be presumed that the deceased was employed as a labourer in the truck in question. There is not an iota of evidence in this regard. The widow has not stated that the deceased was employed as a labourer in the truck. The only allegation was that the deceased used to do the work of loading of apple boxes. In addition to work of electrician and plumber. It was neither pleaded nor proved that 5 the deceased was engaged as labourer on the truck. The finding of the learned Tribunal is totally unsustainable. On behalf of the claimants, it is argued even if it is held that the Insurance Company is not liable it may be directed to satisfy the award and recover the amount paid from the owner of the vehicle. By now the law is very well settled that the Insurance Company cannot be made liable in respect of a person unauthorizedly travelling in a goods vehicle. Reference in this behalf may be made to the latest judgement of the Apex Court in National Insurance Co. Ltd. versus Cholleti Bharatamma and others, (2008) 1 SCC 423. It may be mentioned that this Court in National Insurance Company v. Maghi Ram and others Latest HLJ 2009(HP) 532 following the decision of the Apex Court in National Insurance Company Ltd. V. Baljit Kaur and others (2004) 2 SCC 1 had directed that the Insurance Company should satisfy the award and recover the amount from the Insurer. The Insurance Company challenged the judgment of this Court before the Apex Court. This direction of this Court was set aside and the Apex Court gave the following directions:- “14. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 10694 is allowed and Civil Appeal arising out of SLP (C ) No. 9910 of 2006 is dismissed. If the amount deposited by the insurance company has since been withdrawn by the first respondent, it would be open to the insurance company to recover the same in the manner specified by the High Court. But if the same has not been withdrawn the deposited amount may be refunded to the insurance company and the proceedings for realization of the amount may be initiated against the owner of the 6 vehicle. In the facts and circumstances of the case, however, there shall be no order as to costs.” Reliance on behalf of the claimant has also been placed on the judgment of the apex Court in Deddappa and others v. Branch Manager, National Insurance Co. Ltd. (2008) 2 SCC 595, wherein after holding that the Insurance Company was not liable, the Court directed the Insurance Company to deposit the amount. In my view this judgment cannot apply since in this case, the apex Court exercised its extra-ordinary jurisdiction under Article 142 of the Constitution to give these directions. This Court does not have any such jurisdiction. It would, however, be relevant to refer to another later judgment of the apex Court in Oriental Insurance Co. Ltd. versus. Zaharulnisha & Ors, 2008(7) Scale 310, wherein the apex Court after holding that the Insurance Company is not liable directed it to satisfy the award. Para 19 of the judgment reads as follows:- “19. In the result, the appeal is allowed to the limited extent and it is directed that the appellant- insurance company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz. respondent No. 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] and Deddappa and Others v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595].” The Apex Court in United India Insurance Co. Ltd. V. Suresh K.K. & anr, 2008(6) Scale 589, after holding that the Insurance Company was not liable, gave the following directions:- 7 “16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realize the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice. 17. We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this Court dated 13.11.06.” On the basis of the aforesaid judgments, it has been urged that this Court should also give similar directions to the Insurance Company. As noted above, in Deddappa’s case (supra), the apex Court gave the directions in exercise of the jurisdiction vested in it under Article 142 of the Constitution. In Zaharulnisha’s case (supra), this Court specifically followed this case. Therefore, it can be said that in Zaharulnisha’s case also, the orders were passed by the apex Court in exercise of jurisdiction vested in it by Article 142 of the Constitution of India. In Suresh’s case (supra), though the apex Court has not specifically referred to Article 142, it is apparent that the directions have been given in the facts peculiar to that case. On the other hand, in Kaushalya Devi’s case (supra),the apex Court has set aside the directions given by this Court directing the Insurance Company to deposit the amount. It specifically held that if the amount had not been withdrawn by the Insurance Company, it would be refunded to the Company and the claimant would recover the amount from the owner of the vehicle. This is the latest judgment cited before me and I am bound by the same. 8 In view of the above discussion, I am of the considered opinion that only the owner can be held liable to pay the award amount and this Court has no power to direct the Insurance Company to satisfy the award. Consequently, I am of the considered view that the award of the learned Tribunal in so far as it holds the Insurance Company liable to pay the compensation has to be set-aside. The appeal is accordingly allowed and the award of the learned Tribunal is modified and it is held that the Insurance Company is not liable to pay the compensation. No order as to costs. 15th October, 2009 ( Deepak Gupta ) ™ Judge.