^- ^. HIGH COURT OFCHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. M.A.(C)No.589of2006 United India Insurance Company versus Shiv Prasad Kasyap and others. ORDER Post for pronouncement of order l^ .01.2009 Sd/- DUip Raosaheb Deshmukh Judge [ ^. HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. M.A.(Cl No. 589 of 2006 APPELLANT (NON-APPLICANT N0.5) RESPONDENTS (CLAIMANT) (NON-APPLICANT N0.11 (NON-APPLICANT N0.21 (NON-APPLICANT N0.31 (NON-APPLICANT N0.4) United India Insurance Company, through its Branch Manager, Branch Office, Rajendra Nagar Chowk, Bilaspur (C.G.) versus 1. Shiv Prasad Kasyap, S/0-Matruram, aged 36 years, R/o vill. Painjaniya, Tahsil-Lormi, Distt. Bilaspur (C.G.) 2. Devi Prasad Tiwari, Aged 48 Years, S/o Bhanu Prasad Tiwari, R/o Pandariya, P.S. - Pandariya, Distt. Kabirdham (C.G.) 3. Santosh Kumar Yadav, aged 37 years, R/o Belgahana, Indira Avash, P.S. - Kota, Out Post-Belgahna, Distt. Bilaspur (C.G.) 4. The New India Assurance Company Limited, through its Branch Manager, Rajendra Nagar Chowk, Bilaspur (CG) 5. Shiv Kumar Sarraf, Link-Road, Bilaspur, Through:Sheikh Ayyub, Aged 42 years, S/o Sheikh Munnu, R/o Rajiv Gandhi Chowk, Bilaspur (CG) Appeal under Section 173 ofthe MotorVehicles Act, 1988 Present: Shri Dashrath Gupta, counsel for the appellant. Shri Ravindra Agrawal, counsel for respondent No.1. Shri Sourabh Sharma, counsel for respondent No.4. Shri R.D.Rai, counsel for respondent No.5. ORDER (Passed on this 1^^- day of January, 2009) The Appellant/lnsurer is aggrieved by the award dated 22.08.2006 passed by the 1st Additional Motor Accidents Claims Tribunal, Bilaspur ^ ^ (henceforth (the Tribunal') in Claim Case No. 53/2005 whereby the Tribunal has passed an order of pay and recover against the appellant while exonerating it from the liability to pay compensation. 2. Admittedly, respondent No.l/claimant -Shiv Prasad Kashyap was travelling in tanker No.C.G.No.10/ZB/0109 (henceforth 'the tanker) as passenger for hire. Near village Binori seeing an oncoming Bus No. C.G.10 ZA 0552 (henceforth (the Bus'), Harnarayan Kashyap the driver of the tanker sided the tanker to its left and in this process the tanker dashed with the wall of the culvert and turned turtle. Driver Harnarayan Kashyap and helper Suraj Lunia died on the spot. Respondent No.l/claimant sustained grievous injuries. 3. An application under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act') for compensation was filed by respondent No.l/claimant before the Tribunal. The appellant/insurer denied the claim in toto and averred inter alia that at the time of the accident the tanker was being driven in breach ofthe policy ofthe insurance. 4. The Tribunal held in paragraph 11 of the impugned award that the respondent No.l/claimant was travelling as a passenger for hire in the tanker i.e. a goods vehicle which was in breach of the policy of the insurance. It, therefore, held that liability to pay compensation could not be fastened on the appellant/insurer. In paragraph 19 of the award, the Tribunal ordered the appellant/insurer to deposit compensation of Rs.72,000/- in the Tribunal within 30 days from the date of award and to recover the same from the respondent No.5 - Owner of the tanker. It is this order which is under challenge in this appeal by the insurer. ^ ^N^ 5. Shri Dashrath Gupta, learned counsel for the appellant urged that in view of the fact that the injured was being carried in the tanker, a goods vehicle, as a passenger for hire, the insurance company was not under any liability, statutory or contractual, to pay compensation. He placed reliance on United India Insurance Company Limited vs. Smt. Bodali Bai and others, Misc. Appeal (C) No.1243 of 2007, South Eastern Coal Field Limited vs. Ratan Kumar Saha and others, Misc. Appeal (C) No.1292 of 2007, United India Insurance Company Limited vs. Ratan KumarSaha and others,, Misc. Appeal (C) No.1244 of 2007 and South Eastern Coal Field Limited vs. Smt. Bodali Bai and others, Misc. Appeal (C) No.1271 of 2007 decided by this Court on 19.02.2008 in which placing reliance on National Insurance Co. Lfcf. v. Bommithi Subbhayamma and others, 2005 (2) TAC 1 (SC) this Court has held that the Tribunal is not justified in ordering the insurance company to pay the compensation first to the claimants and to recover it from the owner after recording a finding that the insurance company was not under any liability, statutory or contractual, to pay compensation. 6. Shri Ravindra Agrawal, learned counsel for respondent No.l/claimant while arguing in support of the impugned award conceded that the appeal (Misc. Appeal (C) No. 47/2007) filed by respondent No.l/claimant for enhancement of compensation was dismissed by the Division Bench ofthis Courtvide orderdated 15.02.2007. 7. Respondent No.2 - Devi Prasad Tiwari did not contest the appeal despite service of notice. Notice on respondent No.3 - Santosh Kumar ^^ -^ y""' '^^^ / Yadav i.e. the driver of the Bus was dispensed with since he was proceeded ex parte by the Tribunal. 8. Shri Sourabh Sharma, learned counsel for respondent No.4 also argued in support of the arguments advanced by the learned counsel for the appellant. Placing reliance on New India Insurance Company vs. Darshana Devi and others, (2008) 7 SCC 416, learned counsel urged that an order of pay and recovery was passed by the Supreme Court in exercise of its extraordinaryjurisdiction underArticle 142. 9. Shri R. D. Rai, learned counsel for respondent No.5 - owner of the tanker did not dispute that the appellanVinsurer was neither under any statutory liability nor under any contractual liability to cover the risk of the injured who was being carried as a passenger for hire in the tanker, a goods vehicle. Learned counsel placed reliance on United India Insurance Co. Ltd. vs. Suresh K. K. & Anr., AIR 2008 SC 2871 while arguing in support of the impugned award and urged that the appellant/insurer could recover the compensation from the respondent No.S/owner after depositing the same in the Tribunal. No appeal was preferred by the respondent No.5/owner of the tanker against the impugned award. 10. Having considered rival submissions, l have perused the record. The offending vehicle in which the injured was travelling as a passenger for hire was a tanker i.e. a goods vehicle. Admittedly, the appellant/insurer was not under any liability, statutory or contractual, to cover the risk of a passenger being carried for hire in a goods vehicle. Therefore, the Tribunal rightly held that the appeltant/insurer was not under any liability to pay compensation. In the above scenario where the •^\\ k^ appellanVinsurer was not under any liability, statutory or contractual, to cover the risk of a passenger being carried for hire in a goods vehicle, the Tribunal was not justified in passing an order of pay and recover against the appellant/insurer. 11. So far as the case law cited by the learned counsel for respondents No.4 & 5 is concerned, the Supreme Court has, in exercise of its extraordinary jurisdiction under Article 142 of the Constitution of India, passed an order of pay and recover against the insurer. 12. In the order dated 19.02.2008 passed in Misc. Appeal (C) No. 1243 of 2007, Misc. Appeal (C) No.1292 of 2007, Misc. Appeal (C) No.1244 of 2007 and Misc. Appeal (C) No. 1271 of 2007, the following observation was made by this Court: "............ It is true that in National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1, New India Assurance Co. Ltd. v. Asha Rani and others, 2002 (9) SCALE 172, New India Assurance Co., Shimla v. Kam/a ancf others, (2001 4 SCC 342 and National Insurance Co. Ltd. v. Kusum Rai and others, 2006 (2) T.A.C. 1 (SC), the Apex Court has in exercise of its extraordinary jurisdiction underArticle 142 ofthe Constitution of India ordered the insurance company to pay compensation first and recover it from the owner. The decision of the Apex Court in National Insurance Co. Ltd. v. Bommithi Subhayamma and others (supra) also applies with full force to the case in hand, in which, it has been held that in such a case the insurance company is not liable to pay compensation first to the claimants and then to recover it from the owner. In National Insurance Co. Ltd. v. Bommithi Subbhayamma and others (supra), the Apex Court referred to the following observation in New India Assurance Co. Ltd. v. Asha Rani and others, 2003 (2) SCC 223, as under: ^l^- "The observations made in this connection by the Court in Asha Rani case (supra) to which one of us, Sinha, J. was a party, however, bear repetition : 26- In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor". In Asha Rani (supra) it has been noticed that sub-clause (i) of Clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger- carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods for his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. It is, therefore, manifest that inspite of the amendment of 1994, the effect ofthe provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the ^--.^.^^.i^^^u^.si,.^^ , ^ ^NNI^' insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people." 13. The Tribunal was thus not justified in passing an order of pay and recover against the appellant/insurer in the facts and circumstances of this case. 14. In the result, the appeal is allowed. The impugned award whereby the appellanVinsurer was ordered to pay compensation within 30 days from the date of award and to recover the same from respondent No.5/owner of the tanker is set aside. The respondent No.l/claimant shall be entitled to recover the compensation awarded by the Tribunal from the respondent No.5/owner of the tanker. Sd/- DUip Raosaheb Deshmukh Judge Ar^ani