IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 191 of 2007 Date of Decision 27th November, 2012 ________________________________________________________ Oriental Insurance Company, Pilibhit U.P. through its Authorised signatory Senior Divisional Manager, Oriental Insurance Company, Mythe Estate, Kaithu, Shimla ….Appellant Versus 1. Smt. Manjinder Kaur widow of late Shri Joginder Singh, 2. Tijender Kaur daughter of Shri Joginder Singh, through her mother Smt. Manjinder Kaur 3. Navneet Kaur daughter of late Shri Joginder Singh, through her mother Smt. Manjinder Singh, 4. Ravneet Kaur daughter of late Shri Joginder Singh, through her mother Smt. Manjinder Kaur, 5. Simran Kaur daughter of late Shri Joginder Singh through her mother Smt. Manjinder Kaur All resident of village Jacubpur, Tehsil Nawab Ganj, District Barrelley UP ….Claimants-non-appellants 6. Shri Sardul Singh son of Shri Gurbachan Singh, resident of Gadore, Tehsil and District Pilibhit Thana Nuria, UP 7. Shri Gaura son of Shri Sohan Lal resident of Punjabi Mohala, Manumangarh Tehsil and P.S. Hanumangarh, District Hanumangarh, Rajasthan. ….Respondents Appeal under Section 173 of the Motor Vehicle Act. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ______________________________________________________________ For the Appellant: Mr. J.L. Kashyap, Advocate. For Respondent Nos. 1 to 5: Mr. Ramakant Sharma, Advocate. _____________________________________________________________ Dev Darshan Sud, J.(oral) The Insurance Company is aggrieved by the award passed by the learned Motor Accident Claims Tribunal-II, Una awarding a sum of ` 2,33,278/- to Smt. Manjinder Kaur and 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 `50,000/- each to Tajinder Kaur, Naveen Kaur, Ravneet Kaur and Simran Kaur. 2. The facts of the case need not be set out in detail since what is challenged before me by the Insurance Company is that the liability is solely of the owner and not of the Insurance Company as the deceased was travelling as a gratuitous passenger along with other persons. 3. Learned counsel appearing for the appellant has drawn my attention to the finding of the learned Tribunal on issue No. 3 which was to the effect that: “Issue No. 3 18. The onus to prove this issue is on the respondent No.3. Although respondent No. 3 did not produce any evidence to prove this issue except the report of the Surveyor of the Insurance Company. The truck was a goods carrier vehicle and was being used to carry passengers on the fateful day. As per statement of Dr. R.K. Garg who appeared as (PW-1) stated that he has medical legally examined 32 persons who suffered injuries in the said accident. (PW-1) the claimant herself has admitted this fact in her cross examination that 30-35 persons were travelling on that day in the ill fated truck. She has further admitted that nothing was charged from them by the owner of the truck. As such, it is held that the truck in question was being used in violation of the terms and conditions of the Insurance Policy and the persons who were travelling in the said truck were gratuitous passengers including the deceased. Therefore, this issue is accordingly decided in favour of respondent No.3.” The owner and the driver of the truck have remained ex-parte before the learned Tribunal and have also not put in appearance before this Court. 3 In Oriental Insurance Company Ltd. vs. Neelam Kumari and others 2012 ACJ 1711 while dealing with the same situation, this Court holds that in such a situation the amount cannot be directed to be recovered from the Insurance Company as the sole liability is of the owner. It is further held: “7. The law with regard to the liability of the Insurance Company in respect of passengers being carried in a goods vehicle is now well settled. A three Judge Bench of the Apex Court in New India Assurance Co. Ltd. versus Asha Rani 2003 ACJ 1 (SC), considered the question whether it is compulsory for the Insurance Company to cover the liability in respect of passengers travelling in a goods vehicle. This decision was in context of the unamended Act. The Apex Court over-ruled its earlier judgment in New India Assurance Co. Ltd. vs Satpal Singh 2000 ACJ 1 (SC) and held as follows: “….It is held that the insurer will not be liable for paying compensation to the owner of the goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury.” Justice S.B. Sinha in his concurring judgment held as follows: “(25). Section 147 of the 1988 Act, inter-alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of ‘public service vehicle’. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen’s Compensation Act. It does not speak of any passenger in a ‘good carriage’. (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 4 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.” 8. This matter again came up for consideration in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy, 2003 ACJ 468 (SC). The Apex Court considered the difference between the definition of ‘goods vehicle’ appearing in the Motor Vehicles Act, 1939 and ‘goods carriage’ appearing in the Motor Vehicles Act, 1988 and held as follows:- “The difference in the language of “goods vehicle” as appearing in the old Act and “goods carriage” in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression “in addition to passengers” as contained in the definition of “goods vehicle” in the old Act. The position becomes further clear because the expression used is “goods carriage” is solely for the carriage of “goods”. Carrying of passengers in a goods carriage is not contemplated in the Act.” Thus, the Apex Court held that passengers cannot be carried in a goods vehicle. 9. In National Insurance Co. Ltd. v Baljit Kaur, 2004 ACJ 428 (SC), the Apex Court considered the impact of the amendment to the Motor Vehicles Act made in 1994. The Apex Court held that after the amendment of 1994, the Insurance Company was bound to cover liability in respect of owner of the goods or his authorized representative travelling in the goods vehicle. However, it further held that no passenger can be carried in a goods vehicle and the Insurance Company was not liable to pay compensation with respect to passengers especially gratuitous passengers. The Apex Court held thus: 5 “(20). It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized 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 insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefits of insurance to such category of people.” 10. The Supreme Court also considered this point in National Insurance Co. Ltd. v. Ajit Kumar 2003 ACJ 1931 (SC). After considering the definitions and various provisions of the Motor Vehicles Act both amended and unamended, the Apex Court held as follows:- “The difference in the language of “goods vehicle” as appearing in the old Act and “goods carriage” in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression “in addition to passengers” as contained in the definition of “goods vehicle” in the old Act. The position becomes further clear because the expression used in goods carriage” is solely for the carriage of goods”. Carrying of passengers in goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of the insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of “public service vehicle”. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and 6 employees carried in goods vehicle would be limited to liability under the Workmen’s Compensation Act, 1923 (In short “the WC Act”). There is no reference to any passenger in “goods carriage”. 11. Following the aforesaid judgments, a similar view was taken by the Apex Court in National Insurance Co. Ltd. v V. Chinnamma 2004 ACJ 1909 (SC). 12. In National Insurance Co. Ltd. v Cholleti Bharatamma 2008 ACJ 268 (SC), the Apex Court was dealing with a matter in which a large number of persons were travelling in a goods carriage vehicle. It was contended on behalf of the claimants that all these persons were travelling as owners of the goods and hence, the Insurance Company was liable to pay the compensation. The Apex Court rejected this contention and held as follows:- “(8). The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injury either of the owner of the goods or his authorized representative.” 13 ………. 14. The next question which arises is whether the Insurance Company can be directed to satisfy the award and be directed to recover the amount from the insured? 15. It may be mentioned that this Court in National Insurance Co. Ltd. v. Maghi Ram, 2010 ACJ 2096 (HP) following the decision of the Apex Court in National Insurance Co. Ltd. V. Baljit Kaur 2004 ACJ 428 (SC) had directed that the Insurance Company should satisfy the award and recover the amount from the Insured. The Insurance Company challenged the judgment of this Court before the Apex Court. This direction of the Court was set aside and the Apex Court in National Insurance Co. Ltd. v. Kaushalaya Devi, 2008 ACJ 2144 (SC) gave the following directions:- “14. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 10694 is allowed and Civil 7 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 respondent No.1, it would be open to the insurance company to recover the same in the manner specified by the HighCourt. But if the same has not been withdrawn the deposited amount may be refunded to the insurance company and the proceedings for realization of 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.” (at pp1713-1715) 4. Learned counsel appearing for the Insurance Company submits that since an amount of ` 1 lac already stands released to the claimants, they should and ought to be directed to deposit the same in this Court. I cannot issue such directions for the reason that in Neelam Kumari’s case supra this Court has further directed that: “23. In view of the above discussion, the appeals filed by the insurance company are allowed and that of the owner is dismissed. It is, however, clarified that in case any amount has already been paid to the claimants out of the amount deposited by the insurance company, then the insurance company shall not recover the same from the claimants, but shall recover the same from the owner of the vehicle.” (at p. 1717) 5. Appeal stands disposed of. No order as to costs. November 27th , 2012, (Dev Darshan Sud), ms Judge