IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No.441 of 2006 Date of Decision: 23rd October, 2008 National Insurance Company Ltd. Appellant Versus Smt. Urmila Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Deepak Bhasin, Advocate. For the respondent: M/s H.K.Bhardwaj and Y.Paul, Advocates. Sanjay Karol, J. The Insurance Company has filed the present appeal assailing the award dated 18.2.2005 passed by the Motor Accident Claims Tribunal (II), Una, H.P., in MAC Petition (RBT) No. 114/01/99, titled as Smt. Urmila Devi vs. Lakhbir Singh and others, awarding a sum of Rs.2,61,800/- alongwith interest @ 9% per annum in favour of the legal heirs of the deceased Shri Phuman Singh. Since the impugned award has been assailed only by the Insurance Company, therefore, the scope of the present appeal is narrow. Facts necessary for adjudication of the appeal are that on 17.8.1999, vehicle No. DL-IG-8195, met with an accident, in which Shri Phuman Singh, aged 25 years, died. Whether the reporters of Local Papers are allowed to see the Judgment? 2 Legal heirs of said Shri Phuman Singh, namely, his wife and two minor children (son and daughter) filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), averring that the deceased alongwith Shri Lal Singh, Ram Bax Sharma, Tilak Raj and Sohan Singh being employees of Mahalaxmi Transport Company and working as labourers, at Delhi loaded certain goods (machinery) belonging to the Transport Company in vehicle No.DL-IG- 8195, and travelled in the vehicle to Jallandhur for the purpose of unloading the same. After unloading the goods, on their return journey from Jallandhur on 16.8.1999 the vehicle, being driven by Shri Lakhbir Singh in a rash and negligent manner, met with an accident near Sanmati Rice Mill, Ghanaur, District Sonepat, Haryana, in which the deceased died. Since the deceased was earning a sum of Rs.8000/- per month compensation of Rs.10 lacs was sought for. The owner of the vehicle filed written statement admitting the fact that the deceased, who was deputed by Mahalaxmi Transport Company as labourer was travelling in the vehicle for the purpose of unloading the machine at Jallandhur and on 16.8.1999 on the return journey vehicle met with an accident in which the Shri Phuman Singh died. However, negligence on the part of the driver was denied. The Insurance Company while admitting that the vehicle was insured, intera alia, took preliminary objection that the deceased was travelling as a gratuitous passenger and hence the Insurance Company was not liable to indemnify the insured. Based on the pleadings of the parties, the Tribunal framed the following issues:- 3 1. Whether on dated 17.8.1999 at about 5 A.M. at place near Sanmati Rice Mill, Gannaur, Distt. Sonepat (Haryana), Phuman Singh died due to the rash or negligent driving of truck No. DL-IG_8195 being driven by respondent No.1 Lakhbir Singh in which the said Phuman Singh was travelling at the time of accident? OPP 2. If Issue No.1 is proved in affirmative whether the petitioners are entitled for compensation, if so, to what amount and from which of the respondents? OPP 3. Whether Phuman Singh deceased was travelling in the said truck as a gratuitous passenger and thus the insurance company is not liable to pay any compensation to the petitioner as alleged? OPR-3. 4. Whether the respondent No.1 was not holding a valid and effective driving licence at the relevant time? OPR-3 5. Whether the said truck was being plied in violation of the terms of the insurance policy and route permit? OPR-3 6. Whether the claim petition has been filed collusively by the petitioners and the respondents No.1 and 2 as alleged? OPR-3. 7. Relief. Appreciating the material on record, the Tribunal held the driver Lakhbir Singh to have driven the vehicle in a rash and negligent manner, which caused the accident resulting into the death of deceased Phuman Singh. The claimants were held to be the legal representatives of the deceased whose income was proved to be Rs.1800/- per month and keeping in view his age to be 25 years, and also the age of legal heirs, 4 multiplier of ‘17’ was applied and loss of dependency was worked out to Rs.2,44,800/-. In addition thereto, a sum of Rs.3000, Rs.4000/- and Rs.10,000/- was also awarded under other heads. The Tribunal held that the deceased was working as a labourer of the Transport Company whose goods were being carried in the vehicle, therefore, he was not a gratuitous passenger. The driver was held to have possessed an effective and valid driving licence at the time of accident and thus none of the terms of the insurance policy were found to have been breached by the insured. On the issue of collusion between claimants and the owner, the Tribunal found that there was no material to substantiate the plea taken by the Insurance Company. Mr.Deepak Bhasin, learned counsel for the Insurance Company has restricted his submissions only on the ground that the deceased being a gratuitous passenger, the Insurance Company was not liable to indemnify the insured and pay compensation to the claimants. In support of his submissions, he has referred to and relied upon the decisions of the Apex Court in National Insurance Co. Ltd. v. Kaushalya Devi and Ors, AIR 2008 SC 2252 and United India Insurance Co. Ltd. vs. Hira Lal,(2006) 4 SCC 131. Mr.Bhardwaj alongwith Mr.Paul, learned counsel for the claimants have supported the award for the reasons set out therein. The owner and the driver have chosen not to cause appearance and contest the appeal. I have heard the learned counsel for the parties and perused the record. 5 In order to prove its case, the claimants have examined Balbir Singh (PW-1) to prove the registration of FIR (Ext.PW-1/A), recording the occurrence of the accident; claimant No.1 Smt. Urmila Devi (PW-2); Shri Lal Singh (PW-3), also an employee of the transport company, who had accompanied the deceased as a labourer; Dr.Purnima Ahuja (PW- 4), who has proved the post-mortem report (Ext.PW-2/A) and ASI Suraj Bhan (PW-5), who has also proved the registration of the FIR. Importantly, no evidence was led by the Insurance Company except for tendering the copy of Insurance Policy (Ext.RX). No evidence was led by the owner and the driver chose to remain ex parte before the Tribunal below. From the statement of PW-2, it is evident that the deceased was employee with Mahalaxmi Transport Company and on 15.8.1999 he alongwith Shri Lal Singh, Ram Bax Sharma, Tilak Raj and Sohan Singh loaded certain machinery in vehicle No. DL-IG-8195 and travelled in the same for the purpose of unloading it at Jallandhur. On 16.8.1999 after unloading the same and loading other goods at Jallandhur they left for Delhi. In the early hours of 17.8.1999 the vehicle met with an accident, in which the deceased died. Importantly, the witness has not been cross- examined on these points at all. Her statement stands duly corroborated by Shri Lal Singh (PW-3), who has deposed that he alongwith the deceased and other employees/labourers of the company loaded the machinery and travelled in the vehicle for the purpose of unloading it at Jallandhur. On 16.8.1999 they unloaded the machinery and on their return journey to Delhi the vehicle met with an accident. The Insurance Company, no doubt, has cross-examined 6 this witness and has suggested to him that the deceased and the other labourers were travelling as a gratuitous passengers but the suggestion stands denied. Importantly, he has clarified that the goods in the vehicle which were loaded at Jallandhur were of the Transport Company. This is the only evidence on record. Thus, in my view, it cannot be said that the deceased was travelling as a gratuitous passenger. He being an employee of the Transport Company was travelling in the “goods carriage” carrying the goods belonging to the said Company for the purpose of unloading the same. The ratio of law laid down in Kaushalya Devi (supra), does not apply to the facts and circumstances of the case, which is evident from para 13 of the said report. The Court was dealing with a matter where the admitted case of the parties was that the deceased was not the owner of the goods loaded in the vehicle at the time of the accident as he was travelling for the purpose of collecting the empty boxes on the return journey of the vehicle. It was in this background, the Apex Court held that the deceased was not the owner of the goods at the time of the accident and, therefore, the Insurance Company was held not liable to indemnify the insured. Similarly, in Hira Lal (supra), the Court was dealing with a case where after appreciating the material on record the Court came to a definite conclusion that the claimant (daughter-in-law), and the owner (father-in-law) were actually acting in collusion to claim compensation from the Insurer. The decision was based on the admitted case of the parties that no goods were being carried in the vehicle. It was in this background the Court held that the deceased was a gratuitous passenger. 7 The position in the present case, however, is entirely different. From a bare reading of Section 147 of the Act, it is evident that the policy of insurance must be a policy which insures the person against any liability which may be incurred by the insured in respect of death or bodily injury to any person, “including the owner of the goods or his authorized representative carried in the vehicle”. The employees being the representative of the owner of the goods would be covered by the Insurance Policy is evident from the policy (Ext.RX), which specifically provides that policy does not cover “Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen’s Compensation Act”. The goods belonged to the Transport Company, is evident not only from the statements of PW-2 and PW-3 but also from the fact that even the Insurance Company has not disputed the same while cross- examining the witnesses. Even though there is no dispute with regard to ownership of the goods belonging to the Transport Company, however, in any event of the matter, I am of the view that the word “owner” has to include the Transport company being an agent, while liberally construing the expression “owner” under Section 147 of the Act. The Apex Court in Sun Export Corporation and another vs. Board of Trustees of the Port of Bombay, (1998) 1 SCC 142, while interpreting the definition of ‘owner’ in the Bombay Port Trust Act and Major Port Trusts Act held that it would also include “consignee” as well as “agent for the custody of goods” in question. 8 The relevant portion of the report is reproduced as under:- “The definition of “owner” in Section 3(5) of the Bombay Port Trust Act and 2(o) of the Major Port Trusts Act includes a “consignee” as well as the “agent for the custody of the goods” in question. The Division Bench of the High Court rightly held that on the endorsement made by the “consignee” on the Bill of Lading, the appellant became the “consignee” and in view of the letters of authority issued to it, the appellant was obliged to clear the goods as an “agent” of the licensee. The appellant would therefore squarely fall within the definition of “owner” under both the Acts.” In New India Assurance Co. Ltd. vs. Asha Rani and others, (2003) 2 SCC 223, it has been held as under:- “If the Motor Vehicles Amendment Act of 1994 is examined, particularly Section 46 of Act 54 of 1994 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 authorized 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 authorized 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 authorized representative carried in the vehicle for the purposes of liability under the insurance policy. Although sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but giving a plain meaning to the words used in the 9 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, it is not possible to construe that the expression “including owner of the goods or his authorized 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 make it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized 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. Therefore, it is held that in respect of cases under Section 147 prior to its amendment in 1994, the insurer will not be liable for paying compensation to the owner of the goods or his authorized 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.” In National Insurance Co. Ltd. vs. Baljit Kaur and others, (2004) 2 SCC 1, the apex Court held as under:- “In spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same.” No other point urged. 10 Therefore, in my view, I find no fault with the findings returned by the Tribunal and it cannot be said from the record that the deceased employee-labourer was a gratuitous passenger. For the foregoing reasons, the appeal is dismissed. However, there shall be no order as to costs. CMP No. 795/2008 Disposed of at this stage. 23rd October, 2008 (Sanjay Karol), J. (C)