1 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CIVIL MISC. APPEAL NO. 1283/2004 (United India Insurance Co. Vs. Smt.6y6. Krasnodar & ors) S.B. CIVIL MISC. APPEAL NO. 1282/2004 (United India Insurance Co. Vs. wariness & ors) S.B. CIVIL MISC. APPEAL NO. 1284/2004 (United Indian Insurance Co. Vs. Abdul Mazid+ & ors) S.B. CIVIL MISC. APPEAL NO. 1048/2007 (United Indian Insurance Co. Vs. Smt. Sajenoor Khatoon) S.B. CIVIL MISC. APPEAL NO. 2146/2007 (United India Insurance Co. Vs. Mod. Iqbal & ors) S.B. CIVIL MISC. APPEAL NO. 2691/2007 (United India Insurance Co. Vs. Maiman & ors) S.B. CIVIL MISC. APPEAL NO. 513/2008 (United India Insurance Co. Vs. Shaft Khan & ors) Date of Judgment : 19th July, 2010 PRESENT HON'BLE MR. C.M. TOTLA, J. Mr. Jagdish Vyas for the appellant. Mr. Ravi Bhansali for the respondent. Mr. U. Ghani ] BY THE COURT: REPORTABLE = = = = All above appeals arise out of the Motor accident claims relating to same incident and decided by common judgment of the Tribunal. Raised issues and arguments very similar so are being decided jointly. Relevant brief facts are that in the night between May9th and 10th 1993 at about 1 o' clock a motor vehicle truck NO. RJ 12 G 0152 - driven by Surest Chandra in which 15-16 persons were - on highway Aimer- railwaymen one km beyond village Rayla - going off the road overturned 2 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) resulting into instant death of three persons and injuries to many of which few succumbed soon after. For the incident FIR No. 112/93 was registered. It appears that charge-sheet for the offense of Section 304 IPC instituted against the driver Surest Chandra and owner and also for the offense of Section 123, 192 MV Act against the owner. Eleven different compensation claims were instituted of which five pertained to death and six to injuries. Tribunal proceeded unconsolidated and in all but four claims compensation awarded. In two claim petitions ire. in Appeal No. 1284/04 and 2146/07 claimants are injured and in remaining five, for death compensation awarded is Rs.1,02,000/-, Rs.1,08,000/-, Rs.1,07,000/-, Rs.91,000/- and Rs.1,13,000/- and in two of injured awarded total Rs. 25,900/-. Per claimant as averred and described in claim petition, all persons in this truck were going to village Nadiya's for loading fish - and at Bhilwara++++, contractor Dr. Sharia loading the truck with some ice slabs himself boarded and then the driver driving seeded fast who asked by occupants to drive slow but driver Surest Chandra did not pay heed and at railwaymen-Aimer road 1 km beyond village Layla due to fast speed and negligence of driver Surest Sand the truck heading wrong side overturned resulting in accident and injuries to many, consequently some dead, describing losses claimed compensation. Insurer in their reply broadly denying or stating ignorance asserted that deceased/injured were not in employment of vehicle owner but at best in control of fishing contractor, in truck were said ice slabs but deceased and injured not workman or owner, so insurer have no liability. Also asserted that as per registration of vehicle and policy, insurance only for the driver whereas 17-18 persons traveling in the vehicle going from a 3 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) place to different place, despite it being a goods vehicle so also the insurer is not responsible. Owner in its reply stating total ignorance claimed that he on 22.01.93 sold and handed over the vehicle to one Ibrahim for Rs. 1,70,000/- thereafter, does not have any relation or control with the vehicle and the accident if occurred not because of the vehicle. Also asserted that driver and contractor charged for the offense of Section 304 Part II IPC. No reply on behalf of driver. The only point raised and argued is regarding liability vis-a-vis such occupiers /passengers in a goods vehicle under the Act policy. Learned counsel for the appellant insurer thrusting submitted that even prior to amendment of November, 1994 and also after that any person much less passenger traveling in a goods vehicle in capacity other than employee of the goods owner or the representative of the goods owner not covered under only Act liability Policy. Submitted that right since the law settled by nontaxable Supreme Court in Pasha Rani’s case principle enunciated is being consistently followed. Relying on Pasha Rani Case reported 2003 (2) SCC 223 and National Insurance Co Vs. Blackfeet Naur & Ors reported in (2004) 2 SCC 1 stated that for no passenger gratuitous or otherwise insurer is liable. For appellant also argued is that now insurer even cannot be directed to pay initially or/and in the first instance and then to recover from the owner, and thrusting stated that this position is clarified in cases following Pasha Rani’s case. Countering above arguments, learned counsel for owner respondent argues that persons even if were for fish loading (as is averred), in vehicle even then they were there only in the capacity of authorized representative of goods owner. Submitted that loading of ice 4 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) slabs in the truck by the said contractor corroborates that persons were in such a capacity. thrust submitted that as is clearly observed, per him, in Blackfeet Naur's case, the position clarified is applicable only prospectively and not retrospectively – so being specifically mentioned and as that matter earlier to this judgment so are to be governed by then applicable and understood law. Learned counsel for owner and also claimants in context of above state that in the application under Section 5 of Limitation Act, specifically averred that not decided to file appeal but preferred as meanwhile rendered judgment of Pasha Rani's case. Furthering above argument, for respondent claimants stressed that amount stands paid following order on stay application - which describes of the then position - and on directions per order dated 27.10.05 the amount is tendered in court for payment to claimants so as far as insurer is concerned stands paid. Learned counsel for the owner also argued that pending appeal driver respondent expired and appellant having all the knowledge did not imp lead his las so, the appeal as a whole abetes and the awards stand. In support of contention cited is (2008) 13 SCC 198 and Rule 10.8. Countering above argument of non-impleading LRs of driver for appellant submitted and as also appears from the judgment impugned and record that the driver did not contest before the Tribunal and against him ex-parte proceedings, therefore per Order 22 Rule 4 CPC not always necessary to bring on record his LRs. Regarding argument of non impleading the Lrs of drive, the driver may be proper and necessary party before the Tribunal and impleading him as respondent in appeal may be desirable but dispensing can be this if the person preferred to not to contest or for related such reasons. In the instant appeals per order dated 23.04.04, appellant exempted from 5 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) bringing on record the LRs of the driver. For this also is 2008 (13) SCC 198. Basic and main argument is about liability of appellant insurer. On careful look of judicial pronouncements by Hon'ble Apex Court it appears that prior to November, 1994 words “injury to any person” - in relation to goods vehicles were broadly taken as always not to include owner or his representative. Thereafter incorporated words “injury to any person including owner of the goods or his authorised representative carried in the vehicle” and followed requirement of insurance in relation to owner and representative. Here Normally, the owner or th person means only the person who travels with and in actual control and entitle to goods or its proceeds. The Act do not contemplate of a goods vehicle carrying large number of passengers dis-proportionate to quantity of goods. Passengers in vehicle are to be covered under insurance and for goods carriage not appear any statutorily necessity of insuring for such passenger occupiers. In 'New India Assurance Vs. Asha Rani 2003(2) SCC 223 mentioning specifically at para 9 is of the inapplicability of Satpal's case 2001 (5) SCC 237 on such facts. After judgment National Insurance Co Vs. Swarn Singh, ACJ 2004 Vol.I Page 1, Hon'ble the Apex Court for such contentions and controversies in National Insurance Co. Vs. Baljeet Kaur & Ors 2004(2) SCC 1 and upholding princpile of Asha Rani's case observed that owner of the passenger carrying vehicle is to pay premium for covering risk of passengers travelling in the vehicle. Above principles thereafter seems to be generally consistently being followed in many cases including 2007(5) SC 428, 2007(9) SCC 486, 2008(9) SCC 100 and 2009(2) SCC 75. Also in number of cases persons occupying the vehicle with some little goods 6 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) (travelling) were held to be gratuitous passengers not covered under statutory policy. In 2009(5) SCC 112 New India Assurance Co. Vs. Shiv lal & Ors also followed and held that a gratuitous passenger in a jeep is not covered by statutory policy. Therefore, settled appears to be proposition that a gratuitous passenger in a goods carriage is not covered by a statutory insurance contract under Section 147 of the Act between insurer and owner. Factual findings regarding as to how and why injured persons were there are not challenged. A perusal of the judgment show that for Issue no.4 on the point finding is somewhat like that for the principles laid down in Satpal’s case that for persons occupying private vehicle insurer have to reimburse so the persons (of vehicle) are covered by policy. Argument and objection that injured being gratuitous passengers insurer not liable is expressly rejected by the tribunal. Looking at the record appear that among the witnesses examined two are the injured claimants. They state of being in receipt of some emoluments but only from the driver and not from the owner of the vehicle and they also uttered some about fishing contractor etc. Given this, finding any other than that they were passengers cannot be. The vehicle per evidence and insurance was truck and a goods motor vehicle. From certificate of insurance clear is that policy was Act policy and it mentions of 4 + 2 meaning thereby at best 6 (six). Specifically mentioned is that not to be used for carrying passengers except employees not exceeding six in number and coming under the Workman compensation Act. None of the injured or dead was employee of the owner so the policy in no way covers such persons. Even otherwise the Act do not contemplate big number of persons in a goods vehicle. Persons as many as 17-18 and none of them in cabin fortifingly establish 7 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) that they all were passengers. Therefore, per established law, insurer do not own responsibility. Learned Judge dealing with the issues held that accident occurred due to rash and negligent fast driving by the driver. Learned Tribunal relying on New India Assurance Company Vs. Satpal Singh's case arrived at conclusion that persons are third party so among “any person” under Section 147(1)(b) of the Act so insurer liable to pay. As such for above inference straight is that persons were gratuitous passengers definitely not in course of employment or as owing goods or representative of goods owner. Applying principles enunciated in Asha Rani's case and legal position emerging, appellant insurer is not under liability to pay or reimburse respondent claimants. Now coming to question whether insurer is to be asked for payment. When judgment of the Tribunal followed Satpal’s case was holding the field so and at least at first instance insurer had to pay. Following judgment of Asha Rani’s case, filing of this appeal precipitated. Now position remains that after order (mentioning judicial pronouncements) of March, 2005 and following orders and direction on stay application to deposit, the amount was tendered by appellant insurer but the same could not be disbursed as condition of receiving/obtaining security from owner could not be fulfilled. And the same has also come on record vide in IA No. 11571 dated 30.07.09 which avers that the Tribunal's order to seize the vehicle could not be executed as the vehicle stood transferred, owner not responding and driver dead, therefore, the condition cannot be fulfilled and prayed was, that the same should be held to be non-mandatory. Such condition of disbursement on furnishing of security of owner is primarily for recovery from person responsible for satisfying the award 8 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) but here then the question arise that if the owner refused, evades or could not be for furnishing of such undertaking then whether rights of claimants are defeated. In such an eventuality of owner not-furnishing security and/or avoiding and evading also now are judicial pronouncements. But for such a situation as above described appellants would have obtained the amount deposited by the insurer appellant. Nonetheless as far as appellants are concerned, this almost towards equivalence of as if payment disbursed. If that be now appellant would have had the right of recovery from owner and not claimants which then stood when payment tendered and also now. Therefore, taking into consideration all this exceptional and peculiar situations, just and appropriate is to direct payment by appellant insurer which actually depositing cheque already stands tendered. Without further going into the question and as the amount some under Section 173 of the Act and also proposed under ‘no fault’ stands already paid and further tendered by cheque which was payable on fulfillment of condition and looking to other circumstances as described above, it is just and appropriate that the amount be paid by the insurer with interest only upto normal implied time for deposit i.e. 31.12.2006. If for some award amount not deposited still appellants to pay now with interest upto 31.12.06 as claimants who, pending appeals did not press much for payment should normally not be put to disadvantage in relation to those who did. Interest subsequent to 31.12.06 if any, accruing as actual payment shall be now, payable only by owner respondent. Appellant insurer paying as above is entitled to receive the amount paid with interest from owner respondent Shri Amrit lal. For this appellant may move appropriate application before the Tribunal. 9 S.B. Civil Misc. Appeal No. 1283/10 (United India Insurance Co. Vs. Smt. Yashodara & ors) Accordingly, are to be decided all appeals. Allowing Appeals No. 1283/2004, 1282/2004, 1284/2004, 1048/2007, 2146/2007, 2691/2007, 513/2008 appellant is held to be under no liability to pay awarded compensation to respondents. However, the amount paid and already deposited with the Tribunal is to be disbursed to respondent claimants as provided by impugned award. Interest after date of tender (by cheque or otherwise in Tribunal) shall not be payable by the appellant – but appellant to submit now payable cheque afresh within a month. If in any appeals (claims) amount consequential order dated 27.10.05 not made then to be paid now in a month with awarded date of interest upto 31.12.05. Appellant insurer is entitled to recover the amount paid or to be paid as above with 6% interest from the date of actual payment till date of recovery and may present appropriate application before the Tribunal. Interest to respondent claimants from dates of cheques tendered before the Tribunal to date of actual disbursement recoverable only from the owner. Costs of appeals to be borne by respective parties. Accordingly and with above order and directions, all the appeals are decided. (C.M. TOTLA), J. bj