1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 53 OF 2006 The New India Assurance Co. Ltd. Velho Building, 3rd Floor, Panaji-Goa. ... Appellant versus 1. Smt. Laxmi Rama Padsalgi Widow of Rama Padsalgi, aged 37 years, housewife, Residing at Gaonkarwada, H. No.30, Bicholim-Goa. 2. Mast. Deelip Rama Padsalgi alias Padsali, Minor, student, 12 years, represented by natural guardian Smt.Laxmi Rama Padsalgi, widow of Rama Padsalgi, aged 37 years, housewife, Residing at Gaonkarwada, H.No.30, Bicholim-Goa. 3. Mast. Gulgappa Rama Padsalgi @ Padsalgi, Minor, student, 11 years, represented by natural guardian Smt. Laxmi Rama Padsalgi, widow of Rama Padsalgi, aged 37 years, housewife, residing at Gaonkarwada, H.No.30, Bicholim-Goa. 4. Santosh Uttam Jalmi Major, driver, Residing at Bagwada, H.No. not known, Piligao, Taluka Bicholim-Goa. 2 5. M/s. Dempo Mining Corporation Ltd. having its head office at Campal “Dempo House” Panaji-Goa. 6. Shri Babli Ganesh Raut, Resident of Mulgao, Bicholim-Goa. ... Respondents Shri E. Afonso, Advocate for the Appellant. Shri D. Pangam, Advocate for the Respondents. Ms. R. Kamath, Advocate for Respondent No.5. CORAM : N. A. BRITTO, J. DATE : 6TH APRIL, 2009. JUDGMENT This appeal is directed against award dated 29-3-2005 of the learned M.A.C.T.(Motor Accident Claims Tribunal) Mapusa. 2. Some undisputed facts may be stated to dispose off this appeal. Rama Padsalgi, the deceased husband/father of Respondent Nos.1 to 3(claimants, for short) was travelling in tipper truck No.GA-01-T-1102 belonging to Respondent No.5(owner, for short) and operated by Respondent No.4(operator, for short) under an agreement dated 20-5-1992 and driven by Respondent No.4(driver, for short). The said truck met with an accident on 20-8-1998 at about 7 p.m. whilst the said truck was returning from Surla to Bicholim. Deceased Rama 3 Patsalgi who was sitting in the cabin of the said truck died. On account of his death, the claimants filed a claim for compensation. 3. The learned M.A.C.T. has come to the conclusion that the said truck was driven by the driver, Respondent No.4, rashly and negligently, and, we are not concerned with that finding. 4. Respondent No.5 herein, the owner had obtained a comprehensive insurance policy in respect of the said truck with third party risks for the period from 1-4-1998 to 31-3-1999, and this is a position which has now been admitted before this Court by learned Counsel appearing on behalf of the insured-owner as well as the insurer, the appellant herein. This position was also admitted by the driver as well, in his written statement. In other words, except for the claimants, the other parties to the claim petition do not dispute that the said tipper truck was a goods vehicle and had a comprehensive insurance policy covering damage to it and third party risks. 5. The learned M.A.C.T. after considering the evidence led by the claimants and other parties came to the conclusion that there was nothing forthcoming to show that Rama, since deceased, was not a contractor employed for Respondent No.2(owner of the truck) or that they were not travelling in the truck from the mines at Surla to Bicholim on regular basis. The learned M.A.C.T. also held that there is material on record to show that the claimant(sic. deceased) 4 and other persons too, were carried in the truck in the course of their employment and therefore Respondent No.3(appellant herein) would be liable to indemnify the owner in paying the compensation, and more so in the facts of the present case when no policy of insurance was produced on record by the insurer. The learned M.A.C.T. then held that the contention of the insurer therefore, could not be accepted that the claimant was a gratuitous passenger in the truck driven by the driver, owned by the owner and insured with the insurer(the appellant, herein). The learned M.A.C.T therefore held that the insurer(appellant herein) and the operator were jointly and severally liable to pay the compensation awarded by the Tribunal. 6. Shri E. Afonso, learned Counsel on behalf of the appellant submits that the deceased was not a third party but was a gratuitous passenger travelling in a goods vehicle and therefore the appellant was not liable to indemnify either the owner or the operator . He further submits that the deceased was a contractor and was not anybody's employee and thus was a gratuitous passenger travelling in a goods vehicle. Shri Sudin Usgaonkar, learned Counsel on behalf of the operator submits that the deceased was an employee of V. S. Dempo at the time of his death and therefore the appellant was liable to indemnify the operator. However, when his attention is drawn that no such plea was taken by the operator, learned Counsel submits that no plea was required to be taken. 5 7. Three questions arise for the consideration of this Court. The first is whether the learned M.A.C.T. was justified in saddling the liability upon the insurer. The second is whether the liability could have been saddled on the insurer with option given to the insurer to recover compensation from the insured or the operator and the third whether the award requires to be modified saddling the liability on the owner of the vehicle in lieu of the operator. The answers to the first two questions are no longer res integra. 8. The findings rendered by learned M.A.C.T. as regards the first question have got to be considered as perverse. There could be no dispute that the deceased was a contractor and this was clearly stated in the claim petition and as the deceased was a contractor no name or address of the employer was given in the petition. The widow of the deceased had admitted in her cross-examination that her husband has worked as a contractor for Dempo Company for six years and for M/s. Bandekar Company for four years and on the basis of her statements and in the light of documents produced by her, it could be safely concluded that the deceased had taken some contract of V. S. Dempo and Company Ltd. on 19-4-1996 when he was paid the final bill for the work done of pitching at Surla beneficiation plant. Thereafter, the deceased had worked for M/s. Bandekar Brothers Pvt. Ltd. and this can be seen from their last bill dated 29-9-1997 when TDS certificates were issued to him for the period from 1997 to 1998. Therefore, the claimants are right in contending that the deceased was a contractor earlier for V. S. Dempo and Company and later for M/s. Bandekar Brothers Pvt. Ltd. In what 6 capacity the deceased was travelling in the said truck was not mentioned by the claimants in the claim petition. The case of the driver of the truck was that there was no liability of whatsoever nature on him and the liability, if any, was that of the insurer, under a comprehensive policy. The case of the owner of the vehicle was that there was a valid agreement between the owner and the operator and accident had occurred during the continuance of the agreement. The owner had particularly relied on clause 14 of the said agreement which, inter alia, provided that the operator would be liable and responsible to the Company(owner) for any damage or loss caused to the said tipper, or building, plant or machinery or property of the Company and/or its allied concerns and/or any third party, by reason or carelessness, negligence, inexperience or wilful fault of the operator or his agent or by his employee. The appellant, who was Respondent No.3 in the petition had stated that it had issued the said policy in favour of the owner covering for the period from 1-4-1998 to 31-3-1999 and its liability was governed by its terms and conditions. The appellant had also pleaded that the deceased was a gratuitous passenger carried in the said goods vehicle therefore risk was not covered by the policy of insurance and as such the appellant was not liable to indemnify Respondent Nos.1(driver) and 2(owner) and consequently was not liable to pay any compensation to the claimants. Respondent No.4, the operator, had also stated that there was no liability upon him and in any event if there was any liability it was covered by the appellant under a comprehensive policy. 7 9. It is common knowledge that in the mining areas many a times the mining trucks are used as passenger vehicles. It is also common knowledge that otherwise also goods vehicles are used as passenger vehicles. It is the claimants who had to prove that the deceased as a contractor was being carried by the owner in the course of employment and not other way round. The bills produced by the claimants do not even show that at the relevant time the deceased was employed as a contractor either by V. S. Dempo and Co. or the owner who in law are two separate entities. The Apex Court in National Insurance Co. Ltd. v. Rattani and others(2009(1) SCALE 379) has stated that the question whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. As already stated, the claimants did not state in the petition or in their evidence as to in what capacity the deceased was travelling in the said good vehicle. When CW1, the widow of the deceased, was questioned about it, she stated that she was not aware in what capacity her late husband was in the said truck since she did not see him. The claimant's witness Yamunappa Padsalgi, who is related to the claimants, and who was also travelling in the said truck along with others, had clearly admitted in his cross-examination that the driver of the said truck had given a lift to them to go to Surla. The Divisional Manager of the appellant, who was examined, had stated, in terms of the plea earlier taken, that gratuitous passengers/persons carried in a goods vehicle were not covered by Insurance Policy nor was it required to be covered under the Motor Vehicles Act, 1988 and had further stated that Respondent No.3 the insurer was not liable to indemnify Respondent No.1(driver) and Respondent No.2(owner) of 8 the said truck. He did not produce the policy stating that the original was in possession of Respondent No.2, the owner of the vehicle. The claimants chose not to cross-examine him; so did the owner except for denying the statements made by him. Certainly, he was not a third party, as it is now understood after the Judgment of the Apex Court in New India Assurance Co. Ltd. v. Asha Rani((2003) 2 SCC 223) and which holds the field till date. In fact, the case of New India Assurance Co. Ltd. v. Asha Rani(supra) was in connection with carrying of passengers in a goods vehicle. The case of New India Assurance Co. Ltd. v. Asha Rani(supra) is a decision rendered by three learned Judges of the Hon'ble Supreme Court and was followed in National Insurance Co. Ltd. v. Baljit Kaur and others((2004) 2 SCC 1)(a three Bench Judge decision) and in the case of Oriental Insurance Company Ltd. v. Sudhakaran K. V. and others(2008) (7) SCC 428) wherein the Apex Court reiterated that it had in a catena of decisions categorically held that gratuitous passengers in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. In Ghulam Mohammad Dar v. State of J & K(2008(1) SCC 422) the Apex Court opined that the words “injury to any person” as inserted by reason of the 1994 Amendment would only mean a third party and not a passenger travelling in a goods carriage whether gratuitous or otherwise. Summarizing the decisions quoted, the Apex Court noted that :- (i) The liability of the insurance company in a case of this nature 9 would not extend to a pillion rider of the motor vehicle unless the requisite amount of premium is paid covering his/her risk; (ii) The legal obligation arising under Section 147 of the Act cannot be extended to an injury of the death of the owner of vehicle or the pillion rider; (iii)The pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle. 9A. The submission that the deceased was an employee of V. S. Dempo is not even a submission made on behalf of the claimants inasmuch as no plea in that regard was also taken by the operator and therefore cannot be accepted. It is also necessary to keep in mind that the deceased had done some contract work for V. S. Dempo and Company Ltd., in the past but that would not even make him a contractor of the owner which as a company is a separate entity and has a different identity from the said V. S. Dempo and Company. That the deceased had worked as a contractor in the past for the said V. S. Dempo and Company would not entitle him, in the absence of any other evidence, to travel on a truck belonging to 10 the owner and operated by the operator. It was also nobody's case that the employees or contractors of V. S. Dempo and Co. or of the owner were entitled to travel on the said truck which was a goods vehicle and which had to be operated by the operator in terms of the said agreement. In other words, the deceased as admitted by the claimants own witness was given a free lift and as otherwise pleaded and proved by the appellant herein, was a gratuitous passenger. 10. In my view, in the light of the admission of the claimants own witness that they were given a lift and the version of the appellant's Divisional Manager that the deceased was gratuitous passenger which was in conformity with the plea taken by him, there was no other view possible but to hold that the deceased was a gratuitous passenger travelling in a goods vehicle, at the time it met with the accident. 11. Considering the facts of the case, and the law applicable thereto, the appellant as insurer was not liable to pay any compensation or indemnify the owner of the vehicle because the deceased was not a third party but was a gratuitous passenger travelling in a goods vehicle. 12. The second question which requires consideration is whether the appellant as insurer should be directed to indemnify the insured with option to recover the amount from the insured. There are three decisions of this Court which provide an answer in the negative, though the case of United India Insurance Co. Ltd. v. Branch Office at Rial Toly and others(2008(4) Bom.C.R. 851) is 11 on a different note. In this case it was observed that the larger Bench of the Supreme Court has, in fact, laid down a clear law that the Insurance Company would first satisfy the award and then recover the amount from the owner by filing an execution application before the Court and the Insurance Company will not be required to file a separate suit, and in view of that, it is clear that although the Insurance Company is not liable to the suit claim, all the same, it has to first satisfy the suit claim and recover that amount from the owner or holder of a policy of Insurance. 13. In United India Insurance Co. Ltd. v. Anubai Gopichand Thakare and others(2008 8ACJ 213) a learned Single Judge of this Court held as follows:- “It is conspicuous that the directions were given in respect of the procedure for recovery in the same proceedings having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988. The directions in the context of determination of such a dispute after depositing the amount by the insurer are subject matter of the scope of Section 168 of the Motor Vehicles Act, 1988. The Apex Court did not, however, lay down that in all such cases, the insurer shall first be liable to pay and then to recover it from the insured. The directions in Baljit Kaur's case are given when the Apex Court came to the conclusion that the interest of justice would be subserved if the appellant(insurer) would be directed to satisfy the awarded amount in favour of 12 the claimant, if not already satisfied and recover the same from the owner of the vehicle. Needless to say, in a particular case, when such directions are given to meet ends of justice, then same are given in exercise of extra ordinary jurisdiction of the Apex Court. The same powers, which are available to the Apex Court under Article 136 and under Article 142 of the Constitution, are not available to the Tribunal or High Court. The purposive interpretation of Section 168 of the Motor Vehicles Act would make it manifest that the provision relates to power of the Tribunal to determine the question of justness of the award and quantum of compensation. It may be said that Section 168 is enabling provision but it does not empower the Tribunal to issue direction to the insurer to pay the amount of compensation, though a finding is reached that the insurer is not liable to pay such amount on account of fundamental breach of the terms of insurance policy. Considering all the relevant aspects of the matter and having regard to the case law referred to above, I have no hesitation in holding that the directions given by the Tribunal in the bunch of present appeals are incorrect, improper and illegal. The impugned order is, therefore, unsustainable”. 14. In United India Insurance Co. Ltd. v. Sayaji Masuji Shinde and others(2008(5) Bom. C.R. 35) it is held that it is not proper that the Insurance Company should be asked to bear the liability and then recover it from the owner as if the insurance company is an agent of the claimant to recover the amount. In fact, the amount deposited by the Insurance Company was ordered to be refunded back. 13 15. In another unreported Judgment dated 26-3-2009 rendered by this Court in First Appeal Nos.277, 278, 279, 280 and 218 of 2008 it observed as follows:- “In my humble view, if the appellant- insurer is not liable to pay the compensation as the party involved was not a third party and the policy issued was a third party policy, I fail to understand on what principle the insurer can be compelled to indemnify the insured and give an option to recover the amount from the insured without filing execution proceedings. If at all this method was adopted by the Apex Court in Oriental Insurance Company Ltd. v. Nanjapan and others(2004(13) SCC 224) or Samundra Devi and others v. Narendra Kaur and others(2008(9) SCC 100) or New India Insurance Co. Ltd. v. Darshana Devi(2008(7) SCC 416) it was because of uncertainty of law then existing as regards who is a third party prior to New India Assurance Co. Ltd. v. Asha Rani(20203(2) SCC 223) and in order to do complete justice amongst the parties under its extraordinary jurisdiction under Article 142 of the Constitution of India. This conclusion is inescapable in view of para 21 of New India Insurance Co. Ltd. v. Darshana Devi(supra)”. Considering the facts of the case, I do not think this is a fit case to order the insurer to indemnify the insured with liberty to the insurer to recover the compensation from the insured. This view will be in conformity with the view held by the Apex Court in National Insurance Company Ltd. v. Jethu Ram and others(1998(2) T.A.C. 14 805). Consequently, the appeals deserve to succeed and the appellant/insurer would stand discharged from indemnifying the insured as regards the liability which they have been required to meet under Section 140 of the Act. Consequently, the appeals are allowed with no order as to costs”. 16. Shri D. Pangam, learned Counsel on behalf of the claimants has submitted, relying on para 21 of National Insurance Co. Ltd. v. Baljit Kaur and others(supra) that this Court, while deciding the said three cases did not take into consideration the law laid down therein as well as in National Insurance Co. Ltd. v. Swaran Singh and others(20204(3) SCC 297). Shri Afonso has been quick to rely upon Oriental Insurance Co. Ltd. v. Meena Viriyal and others(2007(5) SCC 425). 17. In National Insurance Co. Ltd. v. Baljit Kaur and others(supra) the Apex Court stated that “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 decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in 15 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”. 18. In the case of National Insurance Co. Ltd. v. Swaran Singh and others((2004) 3 SCC 297) there was a valid insurance policy issued in favour of the owners but the insurer had claimed that there was breach of the policy on the part of the owners by authorizing the vehicles being driven by persons who either had a fake driving license or did not have a driving license or a license which had expired and which was not renewed or a license for a class of vehicles other than for which it was meant or a learner's driving license and it is in that context that the Apex Court directed that the Insurance Company should satisfy the decree at the first instance and that it should recover the awarded amount from the owner or driver thereof as that was the law which was in the field for a long time. However, 16 the Apex Court in the said case of Oriental Insurance Co. Ltd. v. Meena Variyal and others(supra) has held that in a case where a person is not a third party within the meaning of 1988 Act, insurance company cannot be made automatically liable merely by purportedly resorting to ratio of National Insurance Co. Ltd. v. Swaran Singh(supra). The fact situation in National Insurance Co. Ltd. v. Swaran Singh and others(supra) is completely different from the facts of this case. 19. In the light of three decisions of this Court referred to herein above and that of the Apex Court in Oriental Insurance