IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.232 of 2008 alongwith FAO Nos.134, 135, 136, 462 and 463 of 2008. Decided on: 17.9.2009 FAO No.232 of 2008. Smt.Santosh Kumari & ors. ...Appellants. VERSUS Smt.Kamla Devi and anr. ...Respondents. FAO No.134 of 2008. New India Assurance Company ...Appellant. VERSUS Sh.Kishan Lal and others ...Respondents _____________________________________________________ FAO No.135 of 2008 New India Assurance Company ...Appellant. VERSUS Sh.Kishan Lal and others ...Respondents FAO No.136 of 2008. New India Assurance Company ...Appellant. VERSUS Gian Chand and others ...Respondents FAO No.462 of 2007. New India Assurance Company ...Appellant. VERSUS Sh.Rattan Dass and anr. ...Respondents FAO No.463 of 2007 New India Assurance Company ...Appellant. VERSUS Sh.Jawahar Singh and others ...Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1No 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… For the Appellant: Mr.B.M.Chauhan,Advocate, for the New India Assurance Company. For the Respondents: Mr.Lalit Kumar Sehgal, Advocate, for the owner of the vehicle. M/s.Y.Paul, and Lalit Kumar Sharma vice Sh.H.S.Rawat, Advocates, for the claimants. Deepak Gupta,Judge (Oral) All the aforesaid appeals are being disposed of by this common judgment since identical questions of law are involved in all these cases. Briefly stated the facts of the case are that a goods vehicle No.HP-10-2825 met with an accident on November 4, 2003 near Chirgaon. A number of people were traveling in the vehicle. The victims of the accident filed claim petitions before the learned Motor Accident Claims Tribunal. The learned Tribunal held that the vehicle in question was a goods vehicle. It also held that the driver of the goods vehicle did not have a valid licence to drive a goods vehicle since the licence entitled him to drive a light motor vehicle only whereas the vehicle in question was registered as transport vehicle. The Tribunal came to the …3… conclusion that the victims were traveling as gratuitous passengers in a goods vehicle and there is violation of the policy of insurance. In five cases though it was held that Insurance Company was not liable to pay the compensation since the victims were gratuitous passengers, the Insurance Company was directed to deposit the awarded amount and liberty was granted to recover the amount from the owner of the goods vehicle. These awards have been challenged by the Insurance Company firstly on the ground that the Insurance Company could not have been directed to satisfy the Tribunal once the Tribunal came to the conclusion that the victims were gratuitous passengers and the Insurance Company was not liable. These appeals are being FAO Nos.134, 135, 136, 462 and 463 of 2009. FAO No.232 of 2008 One case was decided by another MACT. The learned Tribunal after came to the conclusion that the victim was a gratuitous passenger relying upon the judgments of the Apex Court held that the Insurance Company could not be directed to satisfy the award and then recover the amount from the owner. In this …4… case, the claimants have filed an appeal and the only ground raised is that the Insurance Company should be directed to first satisfy the award. The question which arises is whether the Insurance Company can be held liable to satisfy the award once it is held that the victims were gratuitous passengers and the Insurance Company was not liable to cover the liability in respect of such passengers. 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 …5… 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 vehicle. In the facts and circumstances of the case, however, there shall be no order as to costs.” In National Insurance Company Ltd. versus Baljit Kaur and others, (2004) 2 SCC 1, a three Judge Bench of the Apex Court held that the words ‘any person’ in section 147 could be held not to include the owner of the goods or his authorized representative’. It was further held that after the amendment of the Motor Vehicles Act in 1994, the Insurance Company is also liable in respect of the owner of the goods. However, the Court went on to hold that this judgment would have prospective effect since the Apex Court in New India Assurance Co. v. Satpal Singh, (2000)1 SCC 237, had taken a different view which view had been set aside only in the year in 2000 in National Insurance Company v. Asha Rani (2003) 2 SCC 223. Therefore, the apex Court directed the Insurance company to satisfy the award and to recover the same from the owner without having to file a separate suit. …6… Reliance on behalf of the claimant as well as the owner 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 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 …7… 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:- “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 alleged 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 …8… 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. In view of the above discussion, the appeals filed by the Insurance Company are allowed and the appeal filed by the claimants being FAO No.232 of 2008 is dismissed. In all the cases, it shall be the owner alone who shall be liable to pay the amount and the directions given by the MACT to the Insurance Company to satisfy the award is set aside. …9… All the appeals are disposed of in the aforesaid terms. No order as to costs. September 17, 2009 ( Deepak Gupta ) (m) Judge.