IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 204 of 2005 Reserved on: 11.12.2009. Date of decision : 17.12.2009 The Oriental Insurance Co. Ltd. …Appellant Versus Smt. Meera and others …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Lalit Kumar Sharma, Advocate. For the respondents No. 1 to 3: Mr. Rajesh Verma, vice Mr. Rajinder Singh Dogra, Advocate. Deepak Gupta, J. This appeal by the Insurance Company is directed against the award of the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan in M.A.C. Petition No. 21-MAC/2 of 2004 decided on 1.3.2005 whereby he has awarded compensation of Rs.10,00,000/- in favour of the claimants and held the Insurance Company liable to pay the said amount. The undisputed facts are that the claimants who are the widow, minor daughter and mother of late Shri Naresh Kumar filed a claim petition claiming compensation in respect to the death of Shri Naresh Kumar in an accident of vehicle No. HP-18-0571 owned and driven by Babu Ram and insured with the appellant-Insurance Company. In the claim petition it was alleged that deceased was working as Shashtri in the Education Department. It was further alleged that the deceased was travelling in the Pick-up alongwith 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 his domestic goods when the accident took place. In para 21 it was also alleged that the deceased was travelling in the Pick-up of his friend when it met with an accident. It is pertinent to mention that there is no allegation that the deceased had hired the vehicle for carriage of goods. The owner-cum-driver in his reply took the plea that the deceased had engaged the vehicle and was travelling with his goods in the said vehicle. The Insurance Company took the plea that the deceased was an unauthorized passenger in the goods vehicle. It also took the plea that the owner-cum-driver did not possess a valid and effective license at the time of the accident. The learned Tribunal came to the conclusion that the accident had occurred due to the rash and negligent driving by Babu Ram and assessed the compensation at Rs.10,00,000/-. With regard to the driving license the learned Tribunal held that the license, a copy of which was proved as Ext.RW-1/A, is valid for driving a transport vehicle. In respect of the issue of gratuitous passenger the learned Tribunal held that the deceased was travelling as owner of goods and hence the Insurance Company was liable. Aggrieved by the award, the Insurance Company filed the present appeal and according to Shri Lalit Kumar Sharma, learned counsel for the Insurance Company both these questions have been wrongly decided by the learned Tribunal. He submits that there is no evidence to show that the deceased had hired the vehicle for carriage of goods. Secondly, according to Shri Lalit Kumar Sharma, it was essential for the license holder to have an endorsement entitling him to drive a transport vehicle which was 3 missing in the present case. The Registration Certificate of the vehicle has been proved as Ext.RW-1/B which shows that the vehicle in question is classified as Light Transport Vehicle. The sitting capacity is shown to be 2+1 and the vehicle is described as a Pick-up, i.e. a goods vehicle. The policy of Insurance, Ext.RW- 2/A also shows that the policy has been issued in respect of goods carrying commercial vehicle. Against the heading of limitations to the policy it is specifically provided that carrying of passengers in the motor vehicle is not covered. As mentioned above, in the claim petition there was no allegation that the deceased had hired the vehicle in question or that he was travelling in the same as owner of the goods. No doubt, it is stated that the deceased was carrying some domestic goods in the vehicle but neither there is any description of any goods nor it is mentioned that the vehicle was hired. The Insurance Company had taken a specific stand that the deceased was an unauthorized passenger. The claimant Smt. Meera while appearing in the witness box has not stated a word as to what goods were being carried in the vehicle or that the deceased had hired the vehicle in question. No suggestion was put to her on behalf of the owner-cum-driver that the deceased had hired the vehicle. In any event this witness could not have stated anything in this regard since she was not present when the deceased boarded the vehicle or when the accident occurred. The owner-cum-driver Babu Ram appeared as RW-1. In his examination-in-chief he did not state a word as to whether the deceased had hired the vehicle. In cross-examination he admits 4 that deceased Naresh Kumar was his relative. He, however, denied the suggestion that the deceased was an unauthorized passenger. Even in the cross-examination he did not state that the deceased was travelling in the vehicle as owner of the goods. Thus, it is apparent that the deceased was not the owner of the goods. 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 and others (2003) 1 SCC 223, 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 un-amended Act. The Apex Court over-ruled its earlier judgment in New India Assurance Co. Ltd. versus Satpal Singh (2000) 1 SCC 237 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’. 5 26. In view of the changes in the relevant provisions in the 1988 Act vis-à-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.” This matter again come up for consideration in Oriental Insurance Company versus Devireddy Konda Reddy, (2003) 2 SCC 339. 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. In National Insurance Company Ltd. versus Baljit Kaur and Others, (2004) 2 SCC 1, 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 6 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: “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.” The Apex Court also considered this point in National Insurance Company Ltd. v. Ajit Kumar and Others (2003) 9 SCC 668. After considering the definitions and various provisions of the Motor Vehicles Act both amended and un-amended, 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 7 respect of drivers and conductors of public service vehicle and 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”. Following the aforesaid judgments, a similar view was taken by the Apex Court in National Insurance Company versus Chinnamma and Others (2004) 8 SCC 697. In National Insurance Co. Ltd. versus Cholleti Bharatamma & Others (2008) page-423, 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.” In the present case on the basis of the evidence on record it is apparent that the deceased was not travelling as owner of the goods but was merely a gratuitous passenger. Not a word has been stated by any witness that he had hired the vehicle. It is thus obvious that he was only a gratuitous passenger and even assuming that he had also taken some goods he could not be said to be travelling as owner of the goods. To be covered under the terms of the Act some evidence must be led to show that the 8 deceased had hired the goods vehicle for transportation of his goods. Next comes the issue as to whether the driver had a valid driving license or not. The owner-cum-driver while appearing in the witness box produced the driving license. He showed the original which was returned to him. The photocopy was exhibited as Ext.RW-1/A. A perusal of this shows that in fact it is not the original license but a duplicate license. Against the date of issue it is mentioned that it was issued on 25.7.1995. Thereafter it bears an endorsement “Driving License renewed time to time last renewed upto 10.8.2008. It further bears an endorsement that the duplicate entries attested. A bare perusal of this does not show as to for which category of vehicle it was issued on 25.7.1995. From this duplicate license it cannot be determined as to whether the license as originally granted was granted for a medium goods vehicle or for a paid LMV or whether these endorsements were added lateron. The Insurance Company examined Shri Tota Ram, Licensing Clerk from the office of Registering and Licensing Authority, Rajgarh, District Sirmour from where the original license purported to be issued. He produced the License Register and according to him License No.394-SDM-R/1995 was issued on 25.7.1995 in favour of Shri Babu Ram for scooter, motorcycle and LMV only. It was valid from 25.7.1995 to 24.7.1998. It was then renewed on 1.9.1998 till 23.7.2003 and thereafter from 11.8.2003 to 10.8.2008. He has clearly stated that as per their record there is no endorsement of Light Transport Vehicle (LTV) on the said license. 9 In cross-examination he admits that the driving license Ext.RW-1/A is not in accordance with the entries made in the Licensing Register. He states that license issued for three years is normally valid for LTV. The learned Tribunal held that since the license was initially issued for three years, it can be presumed that it is valid for transport vehicle also. I am of the considered view that keeping in view the statement of RW-2 who produced the License Register and clearly stated that the duplicate license RW-1/A is not in accordance with the entries made in the said register. No reliance could be placed on this duplicate license. It is obvious that the duplicate license has been fraudulently obtained by Shri Babu Ram. In this license there is a tick mark against medium goods vehicle which would mean that the license holder is entitled to drive to this class of vehicle. There is also an endorsement LMV paid only, which would mean that the license holder was permitted to drive a light motor vehicle as driver thereof. According to RW-2 in the register there are no such endorsements. It is, therefore, obvious that the duplicate license has been issued in a fraudulent manner with a view to help Shri Babu Ram. No reliance can be placed on this license. The law is very clear that after 28.3.2001 the endorsement to drive a transport vehicle is necessary but prior to that date such endorsement was not necessary since a light motor vehicle covers a transport vehicle. Reference in this behalf may be made to the judgements of the Apex Court in National Insurance Co. Ltd. vs. Kusum Rai and others (2006) 4 SCC 250, New India 10 Assurance Company Ltd. vs. Prabhu Lal (2008) 1 SCC 696 and National Insurance Company Ltd. vs. Annappa Irappa Nesria and others, (2008) 3 SCC 464. As per the law laid down by the Apex Court prior to 28.3.2001 endorsement on transport vehicle was not required but after this date an endorsement in this regard was definitely required. The accident in question occurred on 26.10.2003 and the license had been renewed prior to the accident on 23.7.2003. Even assuming that no endorsement was required previously when the license was renewed on 23.7.2003 an endorsement for driving a transport vehicle was definitely required in view of the law laid down by the Apex Court. Hence, the Insurance Company cannot be held liable. 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? 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 11 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 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].” 12 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 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), the Apex Court specifically followed the law laid down in Deddappa’s 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 Insurance 13 Company, it would be refunded to the Company and the claimant would 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 award amount and this Court has no power to direct the Insurance Company to satisfy the award. Consequently, I am of the 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. The appeal filed by the Insurance Company is accordingly allowed. 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. The appeal is allowed in the aforesaid terms. No order as to costs. 17th December, 2009 ( Deepak Gupta ) ™ Judge.