1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR FIRST APPEAL NO.671/2006 M/s. National Insurance Co. Ltd. Through Divisional Manager, Division Office No.3, Mount Road, Nagpur .Appellant Versus 1. S. Vakar Ahmad S/o Mohd. Salim, aged 50 years, Occ. Business, R/o Seikh Bunkar Colony, Kamptee, Tahsil-Kamptee, District-Nagpur Owner of goods Truck MHG-5944. 2. Chandu S/o Mangal Meshram aged about 32 years, Occ. Driver, R/o Naya-Godam Kamptee, Distt. Nagpur Driver of goods Truck MHG-5944 3.Smt. Jaywanta Wd/o Krishna Wanjari, aged about 25 years, Occ. Household, 4. Atul S/o Krishna Wanjari, aged about 5 years, 5. Ku. Shital D/o Krishna Wanjari, aged about 3 years, 6. Amol S/o Krishna Wanjari, 2 aged about 1 year, Respondent Nos. 4, 5 and 6 are minors, represented through their natural guardian, mother appellant no.1. All R/o Neri, Tahsil Kamptee District Nagpur. Respondents. ..... Mr. S.R. Pathak, Advocate for the appellant. Mr. K.V. Thomas, Advocate for respondent no.1. Mr. Asghar Hussain Advocate for respondent nos. 3 to 6. .... CORAM : A.P. LAVANDE, J . DATED : 6/12/2006. ORAL JUDGMENT : 1. Heard Mr. S.R. Pathak, Advocate for the Appellant, Mr. K.V. Thomas, Advocate for respondent no.1 and Mr. Asghar Hussain Advocate for respondent nos. 3 to 6. Admit. By consent heard forthwith. 2. This appeal is directed against judgment and order dated 10.6.2005 passed by Motor Accident Claims Tribunal, Nagpur in Claim Petition No.532/05 partly allowing the application for compensation filed by the respondent nos. 3 to 6 against the appellant and respondent nos. 1 3 and 2. 3. Briefly, the facts which are relevant for disposal of the present appeal are as under:- Deceased Krishna Wanjari the husband of respondent no.3 and the father of respondent nos. 4 to 6 was travelling by truck bearing No. MHG-5944 from Neri to Kamptee. When the said truck reached to Gadha it met with an accident and in the said accident Krishna died. Respondent nos. 3 to 6 filed claim petition claiming compensation of Rs. 5,22,000/- against the appellant and respondent no. 1 – the owner of the truck and respondent no.2 the driver of the truck. The claim petition was contested and after appreciating the evidence led by the parties, the Tribunal granted compensation of Rs. 1,77,000/- including no fault liability with interest @ 6% per annum from the date of petition till realisation. The Tribunal held the respondents nos. 1 to 3 jointly and severally liable to pay compensation. Before the Tribunal, the appellant disowned its liability to pay the compensation on the ground that the appellant was not liable to pay any compensation inasmuch as the deceased Krishna was travelling in the body of the truck which was goods vehicle. According to 4 the appellant, there was no separate or contractual liability on its part to pay the compensation on account of death of Krishna. In the accident inasmuch as there was clear breach of insurance policy and the appellant could not be held liable to pay compensation to a passenger travelling in goods vehicle. 4. Mr. Pathak, Advocate appearing for the appellant submitted that the Tribunal has erred in holding that the appellant is liable to pay compensation since deceased was travelling in the truck which was goods vehicle and, therefore, the appellant was not liable to pay any compensation. He further submitted that there was no contractual liability on the part of the appellant to pay any compensation and in terms of Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to “the Act”) which provides for statutory liability. The appellant could not have been saddled with the liability to pay compensation in respect of death of a passenger travelling in goods vehicle which was clearly in breach of insurance policy. In support of his submissions, learned counsel relied upon judgment of Andhra Pradesh High Court in Cheekati Nageswar Rao Vs. G. Rama Rao and another (2006 ACJ 2248). He further submitted that 5 the appellant has deposited the entire compensation of Rs. 1,96,643/- in this Court and since the appellant is not liable to pay compensation, the appellant be permitted to recover the said amount from the owner in case the claimants are permitted to withdraw the amount of compensation. In support of his submission, learned counsel relied upon the judgment of the Apex Court in National Insurance Co. Ltd. Vs. Baljit Kaur and others (2004 ACJ 428). 5. Per contra, Mr. Thomas, Advocate appearing for respondent no.1 – the owner of the vehicle, submitted that the evidence on record clearly establishes that the deceased was carrying goods along with him and he had paid the charges towards the goods to the driver and, therefore, the Insurance Company was liable to pay compensation in terms of Section 147 of the Act. In support of his submission, learned counsel placed reliance upon National Insurance Co. Ltd. Vs. Lakhuben Punabhai Vaghari and others (2006 (3) T.A.C. 219 (Guj.). 6. In reply to the submissions made by Advocate Thomas, Mr. Pathak invited my attention to the claim petition filed by respondent nos. 6 3 to 6 in which it has not been stated that deceased had paid charges for transport of goods which he was carrying and has only stated that he was only travelling in the said truck at the relevant time. According to Mr. Pathak, since the claimants - respondent nos. 3 to 6 had not pleaded that deceased was accompanying the goods in respect of which he had paid charges, the evidence led by the claimants to establish that deceased was accompanying the goods cannot be considered and accepted. 7. Mr. Hussain, Advocate for respondent nos. 3 to 6 submitted that appropriate order be passed regarding disbursement of the amount deposited by the appellant. 8. I have considered the submissions made by learned counsel. I have perused the records and the judgments relied upon by learned counsel appearing for the parties. 9. Having regard to the submissions made by learned counsel appearing for the parties and having regard to the findings given by the Tribunal, the following points arise for consideration in the present 7 appeal:- (i) Whether the Tribunal was justified in holding that the appellant is liable to pay compensation to respondent nos. 3 to 6? (ii) Whether the appellant should be permitted to recover compensation from respondent no.1 in case the appellant is directed to satisfy the award? 10. Perusal of the judgment of the Tribunal discloses that at the relevant time sand was being carried in the truck involved in the accident. There is no clear finding recorded by the Tribunal that the appellant is liable to pay compensation since deceased was accompanying the goods in respect of which he had paid charges to the appellant. That being the position, I fail to understand as to how the Tribunal could hold the appellant liable to pay compensation to respondent nos. 3 to 6 since admittedly the vehicle was goods vehicle and as such there was no insurance cover in respect of any person travelling as passenger in the vehicle whether gratuitous or otherwise. Upon perusal of the claim petition filed by the claimants, it is clear that nowhere it was the case of the claimants that deceased was 8 accompanying the goods for which he had paid charges to the driver. In the absence of any such pleading, in my opinion, the evidence which was sought to be led by the claimants to prove that he was accompanying the goods for which he had paid and, therefore, the Insurance Company was liable to pay compensation in terms of Section 147 of the Act, cannot be accepted. It is well settled by catena of decisions of the Apex Court that unless there is pleading, evidence led has no relevance. That being the position, the only conclusion that can be drawn is that deceased was travelling as passenger in the goods vehicle. Thus there was clear breach of insurance policy issued by the appellant in respect of the vehicle involved in the accident. The appellant, therefore, cannot be saddled with the liability to pay compensation under Section 147 of the Act. 11. In Cheekati Nageswar Rao case (supra) the Andhra Pradesh High Court held that the Insurance Company cannot be held liable to pay compensation in case a person travelling in truck along with deflated tyre to get it repaired sustained injuries when the truck met with an accident. 9 12. Insofar as the judgment of Gujarat High Court in National Insurance Co. Ltd. (supra) upon which reliance has been placed by Mr. Thomas, the same does not advance the case of respondent no.1 inasmuch as the claimants themselves have not pleaded that deceased was accompanying the goods. In the said judgment, there was specific averment in the claim petition that several persons were travelling along with their goods and had boarded truck along with their goods. The Tribunal, on the basis of the evidence led in the said case, has come to the conclusion that deceased persons were travelling in the truck along with their goods and they were not gratuitous passengers. In this factual background, the Division Bench of Gujarat High Court refused to exonerate the Insurance Company from the liability to pay compensation to the legal representatives of deceased passenger. The facts in the said case are clearly distinguishable and, therefore, the said judgment does not come to the rescue of respondent no.1. 13. For the reasons aforesaid, I find that the Tribunal has erred in holding the appellant liable to pay compensation. As stated above, there was clear breach of insurance policy and, therefore, the appellant could 10 not have been saddled with the liability to pay compensation for the death of deceased Krishna. 14. The next question which arises for consideration is whether the prayer made by Mr. Pathak, Advocate on behalf of the appellant that the appellant be permitted to satisfy the award and recover the same from the owner can be accepted. In Baljeet Kaur's case (supra) the Apex Court after holding the Insurance Company not liable to pay compensation on account of breach of policy directed the Insurance Company to satisfy the award and recover the amount from the owner. The ratio laid down in Baljeet Kaur's case is squarely applicable in the present case and Mr. Pathak is justified in placing reliance on the said judgment. 15. For the reasons aforesaid, the judgment and order passed by the Tribunal to the extent it holds the appellant liable deserves to be quashed and set aside and is accordingly set aside. The appellant is permitted to recover the amount of Rs. 1,96,643/- from respondent no.1 – the owner of the vehicle. For the purpose of said recovery, it would not be necessary for the appellant to file separate suit but it may initiate proceeding before 11 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. 16. In the result, therefore, the appeal is allowed in the aforesaid terms. Since respondent nos. 4 to 6 are minors, Registry is directed to invest the amount of Rs. 50,000/- each along with interest accrued thereon in the name of respondent nos. 4 to 6 in any Nationalised Bank for an initial period of two years to be renewed from time to time till they attain majority. The interest due on the said amounts shall be paid to respondent no.3 till the respondent nos. 4 to 6 attain majority. The balance amount of Rs. 46,643/- along with accrued interest, if any, is ordered to be paid to respondent no.3. 17. At this stage, Mr. Thomas, Advocate appearing for respondent no.1 states that the order passed by this Court permitting the appellant to recover the amount from respondent no.1 be stayed for a period of eight weeks in order to enable the respondent no.1 to take appropriate steps. The prayer is opposed by Mr. Pathak, Advocate for the appellant. In the interest of justice, the direction permitting the appellant 12 to recover the amount from respondent no.1 is stayed for a period of eight weeks, subject to the condition that the respondent no.1 shall not dispose of his truck bearing No. MHG-5944 for a period of eight weeks and file undertaking to that effect in this Court within a period of two weeks. In case, no such undertaking is filed in this Court, the interim order shall stand automatically vacated. JUDGE