IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 242 of 2006 Date of decision : 13.11.2009 New India Assurance Company. …Appellant Versus Sadh Ram and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1. Yes. For the Appellant: Mr. Sanjeev Sood, Advocate. For the respondent 1: Mr. Romesh Verma, Advocate. For the respondents No. 2 & 3: Mr. M.L.Brakta, Advocate. Deepak Gupta, J. (oral) This appeal had been filed by the Insurance Company, which is aggrieved by the award passed by the learned Motor Accident Claims Tribunal (II), Shimla, in M.A.C. Petition No. 24-S/2 of 2000 decided on 28th April, 2006, in as much as the Insurance Company has been held liable to pay the compensation. The main ground urged by the Insurance Company is that the claimant was not a conductor/cleaner in the truck and was a gratuitous passenger and hence the Insurance Company could not have been held liable. The admitted facts are that the truck No. HP-09-0327, which was owned by Rajinder Singh respondent No.2 and was being driven by Inder Singh respondent No.3 herein, met with an accident near Chharabra on 20.8.1999 at about 8.24 p.m. It is not 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 disputed that the claimant Sadh Ram was travelling in the truck and he suffered serious injuries in the accident which led to the amputation of his left leg resulting in 80% disability to him. The learned Tribunal after taking into consideration all factors awarded compensation of Rs.3,60,000/-. The Insurance Company was held liable to pay the compensation. I have heard Shri Sanjeev Sood, learned counsel for the Insurance Company, Shri Romesh Verma, learned counsel for claimant-respondent No.1 and Shri M.L.Brakta, learned counsel for respondents No. 2 and 3. The only question which has been raised in this appeal is whether claimant Sadh Ram was cleaner/conductor or a gratuitous passenger in the truck in question. To appreciate this question, it would be relevant to refer to the claim petition. In para-4 of the claim petition, the claimant had claimed that he was working as conductor in the truck in question. The owner and driver filed a joint reply to this claim petition. In the said reply they stated that the petitioner has no relationship of conductor with the replying respondents as alleged. It was further specifically submitted that the petitioner-claimant had taken a lift in the truck from Theog and was not a conductor in the truck. The Insurance Company also took the plea that since the claimant was not a conductor, he being a gratuitous passenger, the Insurance Company could not be held liable to pay compensation. The F.I.R. regarding the truck was lodged on 21.8.1999 in which it is mentioned that the claimant Sadh Ram was a cleaner in the truck. PW-4 Karam Chand is the person who is alleged to have 3 lodged the F.I.R. According to him claimant Sadh Ram was a cleaner in the said truck. Karam Chand states that the truck in question was loaded at village Prem Nagar, Tehsil Kumarsain and 2-3 growers had loaded their potatoes, vegetables, etc. in the truck for transportation to Delhi. He further states that four people i.e. himself, one other person, the driver of the truck and the conductor were travelling in the truck in question. Sadh Ram himself has appeared in the witness box as PW-5. He states that he was employed as cleaner/conductor in the truck in question by the owner Rajinder Singh. He admits that prior to being employed as cleaner he was working as mechanic for two-three years. He has feigned ignorance with regard to the fact as to whether the names of the driver and conductor are entered in the log book of the truck. He has denied the suggestion that he had taken a lift in the truck. He could present no written proof of his engagement as conductor or with regard to the payment of salary, if any, made to him. Though in the claim petition it was stated that he was engaged as a conductor for about six months, this witness is totally silent with regard to the period of his engagement as conductor while deposing in Court. It would be pertinent to mention that even when the claimant appeared in the witness box the suggestion put to him by the owner and driver was that he had taken a lift in the truck and had not been engaged as a conductor. The owner when he appeared in the witness box as RW-2 took a total somersault. Despite the clear cut stand in the reply that the claimant was not engaged as a conductor and also the suggestion put to the claimant in the witness box that he had taken 4 a lift, the owner while appearing in the witness box states that on that day the claimant Sadh Ram requested the driver to allow him to board the truck as he wanted to go to Shimla and he would discharge the duty of a conductor. This witness was not present when Sadh Ram boarded the truck. In cross-examination this witness further states that the salary of the petitioner had not been fixed and according to him the claimant was not a gratuitous passenger. He, however, denied the suggestion that Sadh Ram had been working as a conductor with him for more than six months. The driver appeared as RW-3. He states that Sadh Ram met him at Theog and expressed his intention to accompany in the truck as a conductor. The salary was not settled as the same was to be settled by the owner but he permitted Sadh Ram to travel as a conductor. Both the owner and driver had admitted that the reply had been filed under their signatures. A perusal of the pleadings and the evidence led in Court leads to only one irresistible conclusion that the owner and driver are liars. They first took up a stand that the claimant was a gratuitous passenger who had taken a lift. Realising that in case this stand is upheld they would themselves be held liable to pay compensation they took a somersault and changed their stand and took the plea that in fact the claimant had been engaged as a conductor. The falsity of the plea is writ large and is apparent from the contradictions in the statements of the owner and the driver. According to the owner he was not present at the time when the petitioner was engaged as a conductor. He further states 5 that the claimant Sadh Ram expressed his intention to travel in the truck upto Shimla and stated that he would perform the duties of conductor. Admittedly, the truck was carrying vegetables to Delhi. There was no purpose in engaging a conductor only for a part of the journey upto Shimla. Perusal of the entire evidence and the pleadings shows that the owner and driver took a specific stand that the claimant was not employed as a conductor. No doubt, in the F.I.R it was mentioned that he was a conductor but this by itself is not sufficient to prove this fact especially when no record of his employment has been proved on record. According to the claimant he had been employed as a conductor for more than six months. This fact was denied by the owner and driver when they appeared in the witness box. According to them he was engaged as a conductor only on the day of the accident. In fact the statement of the owner is very revealing. According to the owner the claimant only wanted to travel upto Shimla and agreed to work as a conductor. According to the driver, no salary was fixed with the claimant as that was to be fixed by the owner. There could have been no employment of the petitioner as a conductor unless some salary had been fixed. There is no proof of payment of salary or his employment as conductor. The learned Tribunal has gravely erred in holding that the claimant was employed as a conductor in the truck. Issues No. 4 and 6 framed by the learned Tribunal read as follows:- 6 Issue No.4.: Whether the petitioner was not the conductor of respondent No.1 at the time of accident, as alleged? OPR 1 & 2. Issue No.6: Whether the petitioner was travelling as gratuitous passenger in truck No. HP-09-0327, as alleged? OPR-3. While recording his findings on these issues the Tribunal has only mentioned that the respondents have not led any evidence to substantiate these issues and therefore these issues are decided against the respondents. I have already discussed the evidence in detail and it clearly shows that evidence was led in respect of these issues. The tribunal glossed over the said evidence. Merely because the Insurance Company had not examined any witness does not mean that there is no evidence on record. Parties had led evidence with regard to the issues and it was the duty of the Tribunal to have discussed this evidence before deciding these issues. It is well established law that no party can be permitted to lead evidence which is contrary to its pleadings. The owner and driver even at the stage of cross-examination of the petitioner took the stand that the claimant was a gratuitous passenger and had taken a lift in the truck. When their turn came to lead evidence they probably became wiser and realized that the Insurance Company would not be held liable in view of the stand taken and then took a somersault. Once it is held that the claimant was not a conductor the only natural consequence is that he was travelling in the vehicle as a gratuitous passenger. Since there is no allegation or any proof to 7 show that he was travelling as a owner of the goods, therefore, the Insurance Company can not be held liable to pay compensation. 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 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 8 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:- “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 9 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 claimant, it would be refunded to the Company and the claimant could 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, I am of the considered opinion that only the owner can be held liable to pay the awarded amount and this Court has no power to direct the Insurance Company to satisfy the award. Consequently, I am of the 10 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. Keeping in view the aforesaid facts, the appeal filed by the Insurance Company is allowed. It is held that the Insurance Company is not liable to pay the compensation. However, the Insurance Company cannot recover the amount already released in favour of the claimant but shall be entitled to recover the same from the owner and driver alongwith interest. The claimant can recover the balance amount due to him alongwith interest from the owner and driver. The appeal is allowed in the aforesaid terms with costs assessed at Rs.25,000/- which costs shall be paid by respondents No. 2 and 3. Exemplary costs have been imposed on them because it is apparent that they have taken up a totally false stand in the case. Before parting with the case, I must observe that only the imposition of exemplary costs is not sufficient. Here are two persons who have told blatant lies in Court. The owner and the driver first took a specific plea in the written statement that the claimant was a gratuitous passenger. This was the suggestion put to the claimant in cross-examination. Lateron they changed their stand and made a false statement on oath. Persons who make such false statements cannot be permitted to go scot free. Therefore, I am prima-facie of the view that criminal proceedings for having committed perjury should be initiated against the respondents for having made a false statement in Court. However, before initiating the proceedings, I feel that it would be appropriate 11 that notice is issued to the owner ( Rajinder Singh S/o Shri Hari Ram R/o Village and Post Office Parala, Tehsil Theog, District Shimla, H.P) and driver (Inder Singh S/o Shri Dila Ram R/o village Dhalli, Post Office Parala, Tehsil Theog, District Shimla) to show cause why proceedings for perjury be not initiated against them. The Registry is directed to register two separate cases and issue notice to the aforesaid persons. Alongwith the notice a copy of this judgement shall also be sent. Notice be made returnable for January 11, 2010. 13th November, 2009 ( Deepak Gupta ) ™ Judge.