IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 386 of 2006 The Oriental Insurance Co. Ltd. …Appellant Versus Kumari Ashmita Pant & others …Respondents Mr. V.K. Kohli, senior Advocate assisted by Mr. I.P. Kohli, Advocate for appellant Mr. Anant Kumar Agrawal, Advocate holding brief of Sri Sudhir Kumar, Advocate for claimants-respondents no. 1 & 2 Dated: December 26, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, has been preferred by the appellant- The Oriental Insurance Co. Ltd., against the judgment and award dated 19.05.2006 passed by Motor Accident Claims Tribunal/1st A.D.J., Udham Singh Nagar, in M.A.C.P. No. 58 of 2005, Kumari Ashmita Pant and another versus The Oriental Insurance Co. Ltd. and another. Brief facts of the case, according to the claimants, are that on 19.10.2003 deceased- Kavindra Shekhar Pant along with three other persons Harish Joshi, Lalit Mohan Pant, Harish Pant, after performing cremation ceremony of his real brother-Ashok Kumar Pant, Advocate, was going to Pithoragarh from Haldwani through Maruti Car No. U.P.04B-5121 owned by opposite party no. 2-Smt. Pratima Pant. When the said vehicle reached near Padampuri, deceased-Kavindra Shekhar Pant applied brake to the said Maruti Car in order to 2 save the vehicle from Mini Truck, but the said vehicle fell into deep ditch to its left side in between Padampuri and Dhyanachuli bend, P.S. Bhimtal, District Nainital. In the said accident, deceased- Kavindra Shekhar Pant sustained serious injuries on his person and succumbed to those injuries, while other three persons also sustained injuries. At the time of accident, deceased was posted as Branch Manager in State Bank of India, Branch I.P.P., Dehradun and his annual income was Rs.2,46,753/-. The deceased was 42-43 years of age at the time of accident. The claimants claimed a sum of Rs.50,00,000/- as compensation along with interest against the opposite parties. Opposite party no. 1-The Oriental Insurance Co. Ltd. filed its written statement denying the contents of the claim petition. In the additional pleas, it has been stated that alleged accident had taken place on account of rash and negligent driving of deceased himself. It has also been stated that deceased was the husband of owner of vehicle in question, therefore, he does not fall within the category of third party and hence insurance company is not liable to pay any compensation and claim petition is liable to be dismissed. Opposite party no. 2-Smt. Pratima Pant i.e. owner of vehicle in question filed her written statement denying all the contents of the claim petition. In the additional pleas, it has been stated that opposite party no. 2 being widow and legal heir of deceased-Kavindra Shekhar Pant is entitled to get compensation of her share. It has also been stated that at the time of accident vehicle in question was 3 insured with opposite party no. 1-Oriental Insurance Co. Ltd. and deceased-Kavindra Shekhar Pant was having valid driving licence to drive the vehicle. Therefore, the opposite party no. 1- insurance company is liable to pay the entire amount of compensation. The learned Tribunal on the basis of pleadings adduced by the parties framed relevant issues in the claim petition, which were discussed in detail. Parties led evidence in support of their case. The learned Tribunal after having considered the entire evidence available on record and hearing learned counsel for the parties, decreed the claim petition for a sum of Rs.4,01,990/- against opposite party no. 1-The Oriental Insurance Co. Ltd., vide judgment and award dated 19.05.2006. The Tribunal further directed that said amount of compensation is to be paid by insurance company within a period of 30 days, failing which, claimants shall also be entitled to get interest at the rate of 6% per annum, on the said amount of compensation, from the date of filing the petition till the date of actual payment. Feeling aggrieved by the aforesaid impugned judgment and award, appellant-The Oriental Insurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri V.K. Kohli, senior Advocate assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Anant Kumar Agrawal, Advocate holding brief of 4 Sri Sudhir Kumar, learned counsel for respondents no. 1 & 2 and perused the record. The short controversy in this case as to whether the insurance company can be said to be liable to make the payment of amount of compensation awarded by the Tribunal or not. It is not disputed that deceased himself was driving the vehicle in question at the time of accident. The vehicle in question belongs to the wife of deceased, Smt. Pratima Pant. The insurance company in this case cannot be held liable; firstly the deceased himself was driving the car in question at the time of accident, therefore, the insurance company cannot be said to be liable to make the payment of amount of compensation to the claimants for own rash and negligence on the part of deceased, and secondly the deceased was driving the vehicle of his wife at the time of accident, therefore, for all practical purposes the vehicle was under the effective control of deceased at the time of accident and deceased was driving the vehicle in the capacity of owner of the same. The Hon’ble Apex Court in the case of Oriental Insurance Company Limited versus Meena Variyal and others, reported in 2007 (2) T.A.C. 417 (S.C.), has clearly observed as under: 10. Chapter XI of the Act bears a heading, “Insurance of Motor Vehicles against third party risks”. The definition of “third party” is an inclusive one since Section 145 (g) only indicates that “third party” includes the Government. It is Section 146 that makes it obligatory for an insurance to be taken out before a motor vehicle could be used on the road. The heading of that Section itself is “Necessary for insurance 5 against third party risk”. No doubt, the marginal heading may not be conclusive. It is Section 147 that sets out the requirement of policies and limits of liability. It is provided therein that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which is issued by an authorized insurer; or which insures the person or classes of persons specified in the policy to the extent specifies in sub-section (2) against any liability which may be incurred by the owner in respect of the death of or bodily injury or damage to any property of third party caused by or arising out of the use of the vehicle in a public place. With effect from 14th November, 1994, injury to the owner of goods or his authorized representative carried in the vehicle was also added. The policy had to cover death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Then, as per the proviso, the policy shall not be required to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death of, or bodily injury to, an employee engaged in driving the vehicle, or who is a conductor, if it is a public service vehicle or an employee being carried in a goods vehicle or to cover any contractual liability. Sub-section (2) only sets down the limits of the policy. As we understand Section 147 (1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy, unless it be a liability arising under the Workmen’s Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carried in the vehicle as owner of the goods or his representative, if it is a goods vehicle. It is provided that the policy also shall not be required to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by 6 or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle or the employer carrying goods if it is a goods carriage. Section 149 (1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (h) of sub-section (1) of Section 147, (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 11. The object of the insistence on insurance under Chapter XI of the Act thus seems to be a compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen’s Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods. On this plain understanding of Section 147, we find it difficulty to hold that the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen’s Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman coming within the Workmen’s Compensation Act, 1923. Therefore, on a plain reading of Section 147 of the Act, it appears to be clear that the Insurance Company is not liable to indemnify the insured in the case on hand.” 7 The Hon’ble Apex Court has further observed as under: “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 did 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 therefore.” In other words, this Court clearly held that apparently wide words “any person” are qualified by the setting in which they occur and that “any person” is to be understood as a third party.” In the instant case, deceased was using the car given to him by his wife for use. He is not covered by the insurance policy taken in terms of the Act, without any special contract. The deceased was not the workman of the owner of the vehicle, therefore, in any case the deceased is not covered under the term ‘third party’. I am, therefore, of the view that direction issued by the Tribunal by way of impugned judgment and award to pay the amount of compensation to the insurance company, is not tenable in the eye of law. Further, the record reveals that deceased was driving the vehicle at the time of accident and when he reached at Padampuri (Dhyanachuli bend), Bhimtal, Nainital, the car being driven by the deceased, slipped and fell into deep ditch and on account of the same driver of car succumbed to injuries. The claim petition filed by the claimants indicates that deceased-Kavindra Shekhar Pant while driving the car applied brakes to avoid 8 collision with a mini truck coming from opposite direction and in the same process the car skidded into a deep valley which resulted in fatal injuries on the person of deceased-Kavindra Shekhar Pant, who died at the spot. The pleading adduced by the claimants itself shows that deceased while driving the car himself was not vigilant and careful. It is worthy to mention here that deceased was driving the vehicle on a hill terrain and he should have also taken all sorts of care and precaution while driving the vehicle on hill routes. It appears to me that car skidded and fell into a deep valley on account of own rash and negligence of the deceased. It is a matter of common sense that when a driver drives the car on hill terrain and particularly when he reaches at some blind bend, he becomes very cautious and he has to blow the horn. Had the deceased been vigilant, he could have avoided the accident. But, in view of the dictum of ‘res ipsa loquitur’ it becomes quite clear that the deceased himself was rash and negligent at the time of accident and on account of the same he had to apply the brakes all of a sudden which resulted this accident. The finding recorded by the Tribunal appears to be against the weight of evidence and I do not find myself in the agreement with the finding recorded by the Tribunal. To my mind, the finding recorded by the Tribunal that deceased was not rash and negligent at the time of accident, is liable to be set aside. As it has been observed by me earlier in the body of the judgment that deceased cannot be said to be third party, hence, under these circumstances, the insurance company cannot be 9 said to be liable to make the payment of amount of compensation awarded by the Tribunal. For the reasons stated above, appeal is allowed. The impugned judgment and award dated 19.05.2006 passed by Tribunal, is set aside. The statutory amount deposited with this Court as well as any other amount deposited by the insurance company with the Tribunal be refunded to the insurance company. (B.C. Kandpal, J.) SP