IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O. Nos. 29 and 364 of 2004 Judgment reserved on:27.3.2008 Date of decision: 11.4.2008 1. FAO No. 29 of 2004 Shanti Devi and another ..Appellants Versus National Insurance Company and others ..Respondents Mr. M.L.Sharma, counsel for the appellants. Ms. Madhu Sharma, vice counsel for the Insurance Company. Mr. Harsh Khanna, counsel for the owner-driver. 2. FAO No. 364 of 2004 National Insurance Company ..Appellant Versus Shanti Devi and another ..Respondents Ms. Madhu Sharma, vice counsel for the appellant. Mr. M.L.Sharma, counsel for respondents No. 1 & 2. Mr. Harsh Khanna, counsel for respondents no. 3 & 4. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Deepak Gupta, J. Both the aforesaid appeals are being disposed of by a common judgment as they arise out of 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 the same accident and award. The admitted facts of the case are that deceased Anup Kumar, aged about 23 years died in a motor vehicle accident of truck No. HP-14- 4275. The claimants, who are the parents of the deceased, filed a claim petition under Section 163-A of the Motor Vehicles Act (for short the Act). In this petition it was stated that the deceased, was working as a driver with M/s Friendly Coach Bus Service, Subathu, at a salary of Rs.4500/- per month, i.e. Rs.54,000/- per annum. According to the averments made in the petition, the petitioner left his home at village Borti at about 6.45 a.m. to go to Kasauli to get his name registered in the Employment Exchange. He boarded the Diggal-Solan bus and got down at Darwa. There he met Mohan Lal, driver of truck No. HP-14-4275. Both, Anup Kumar and Mohan Lal, were friends. Thereafter Anup Kumar travelled in the truck of Mohan Lal. The truck went off the road near Ganguri and the deceased sustained injuries. He was taken to Civil Hospital, Dharampur. Thereafter he was referred to P.G.I., Chandigarh, but he expired. It is apparent from the averments made in the claim petition that as per the claimants, the deceased was a gratuitous passenger in the truck. The respondent- Insurance Company filed a written statement on 11.12.2002 in which it was alleged that since the 3 deceased was a gratuitous passenger in a goods vehicle, the Insurance Company was not liable. Thereafter the owner filed her written statement in which it was alleged that the regular driver was to go on leave w.e.f. 27.8.2001 after unloading the truck at C.R.I., Kasauli and, therefore, the driver of the truck, who knew the deceased, had asked him to work as a driver on the truck as stop gap arrangement. It was alleged that the deceased was co-driver in the truck and hence the Insurance company was liable. Though the petition was purported to have been filed under Section 163-A of the Act, issues were framed. Neither the learned Tribunal nor any of the counsel treated this petition to be one under Section 163-A of the Act. In fact this petition under Section 163-A of the Act was not maintainable in view of the fact that the income of the deceased was stated to be more than Rs. 40,000/- per annum. The Apex Court in Deepal Girishbhai Soni and others Vs. United India Insurance Company Ltd., Baroda, (2004) 5, SCC 385 has clearly laid down that where the income of the deceased-victim is more than Rs. 40,000/- per annum, the claimants are not entitled to file a petition under Section 163-A of the Motor Vehicles Act. The Apex Court made the following observations in paras 51 and 67 of the judgment:- 4 “51. The scheme envisaged under Section 163-A, in our opinion, leaves no manner of doubt that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set-off against a higher compensation unlike Section 140. In terms of the said provision, a distinct and specified class of citizens, namely, persons whose income per annum is Rs.40,000/- or less is covered thereunder whereas Sections 140 and 166 cater to all sections of society. 52-66. x x x x x x x x x x x x x x x x x 67. We, therefore, are of the opinion that Kodala has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000/- per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.” Therefore, the petition under Section 163-A of the Act was not maintainable. Since the trial has taken place and no party raised this objection before the learned Tribunal, I proceed to treat this petition under Section 166 of the Act since issues were framed and the parties led evidence. The learned court below came to the conclusion that the petitioner died due to rash and negligent driving of the driver of the truck and that the claimants were entitled to Rs. 2,30,000/- as 5 compensation. These findings have not been challenged in this court by the owner or driver. They have thus attained finality. The Insurance company has, however, challenged the findings of the learned Tribunal that the deceased was not a gratuitous passenger. I have already referred to the claim petition which clearly spells out that the deceased was traveling as a friend of the driver of the truck. He was, therefore, a gratuitous passenger. The case set up by the owner and driver is that in fact the deceased was engaged as a second driver of the truck. This explanation is obviously an afterthought and was taken up only after the written statement by the Insurance Company had been filed. According to the claimants, at the time of his death the deceased was working with M/s Friendly Coach Bus Service, Subathu. Even in the court the father of the deceased has clearly stated that the deceased was working as a driver with Friendly Coach Bus Service, Subathu. He has stated that he has no knowledge whether the deceased was engaged as daily wager on the truck. If the deceased was employed with the Friendly Coast Bus Service at a salary of Rs. 4,500/- per month, there was no question of his taking employment on daily wages at the rate of Rs. 120/- per day. 6 The driver has stated that he came to know that his son was unwell and informed the owner of the truck about this and she asked him to engage deceased Anup Kumar as driver of the truck. According to him this conversation took place on the day prior to the accident. He states that his son was unwell in village Sham. His statement is totally contradicted by the statement of the owner. According to her on the night prior to the accident, she was informed by the driver of truck that he intended to proceed on leave due to illness of his son. She categorically states that Mohan Lal telephoned her from village Sham. This is not what Mohan Lal states. Village Sham does not fall on the route from Delhi to Kasauli. How did the truck reach there? This question remains unanswered. When asked further details, the owner has given evasive replies and has stated that the truck is looked after by her husband, who has not been produced as a witness in the case. The story that the son was unwell is also not borne out from the fact that admittedly at the time when the truck met with the accident, besides the deceased, two other persons, Geeta Ram and Mohan Lal and the wife of driver Mohan Lal were sitting in the truck. In case the truck had come from Delhi, how was the wife of the driver traveling in the truck? If it was coming from village Sham and the son of the driver was unwell, 7 why was his wife sitting with him? The presence of the wife clearly indicates that the story of the son being unwell and the deceased having been engaged as a second driver is a cock and bull story woven only to fasten the Insurance company with the liability to pay compensation. It is apparent that the deceased was a gratuitous passenger. It has been lastly contended by Mr. M.L.Sharma, Advocate, that the Insurance Company be directed to pay the amount and recover the same from the owner-insured of the vehicle. It is true that previously such orders have been passed, but now the Apex Court has held in a number of cases that the Insurance Company cannot be directed to deposit the compensation when it is not held liable. Therefore, this prayer of Mr. Sharma cannot be accepted. As far as the quantum of compensation is concerned, the amount of compensation of Rs. 2,30,000/- awarded to the claimants is just and reasonable keeping in view the fact that the deceased was the son of the claimants and admittedly the father is in receipt of pay of Rs. 8,000/- per month. In view of the above discussion the appeal filed by the claimants is rejected and the appeal filed by the Insurance Company is allowed and the Insurance 8 Company is held not liable to pay any compensation. The owner and driver of the truck, i.e. respondents No. 2 & 3 herein are held jointly and severally liable to pay the amount of compensation. Both the appeals are disposed of in the aforesaid terms. No costs. April 11, 2008(K) ( Deepak Gupta ), J.