IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 210 of 2005 Date of Decision: 28th July, 2009 National Insurance Co. Ltd., Appellant Versus HRTC and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting1? Yes For the appellant : Mr. Ashwani K.Sharma, Advocate. For respondent No.1 : Mr. H. S. Rawat, Advocate, Sanjay Karol, J. M/s. National Insurance Co. Ltd., has assailed the impugned award dated 14.10.2003 passed by Motor Accident claims Tribunal, Bilaspur, H.P. in MAC Case No. 39 of 2001, titled as Himachal Road Transport Corporation vs. Sat Pal and others, awarding a sum of Rs.2,42,494/- in favour of M/s. Himachal Pradesh Road Transport Corporation (hereinafter referred as ‘HRTC’). The HRTC filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) alleging that Truck No. RJ-02G-2015 owned by Shri Satpal, respondent No.2 herein (referred to as ‘owner’) being driven by Shri Baldev Singh, respondent No.3 herein (referred to as ‘driver’) had caused damage to their Bus No. HP-24-4576 in an accident. The accident was totally Whether the reporters of Local Papers are allowed to see the Judgment? 2 attributed to the driver of the truck. In the said accident, Shri Raj Kumar, conductor of the bus also sustained injuries and died as a result of the same. The negligence was solely that of a driver of the truck. The legal heirs of the deceased conductor filed a claim application under the Workmen’s Compensation Act, 1923, wherein a sum of Rs.1,86,900/- was directed to be paid to the claimants by the HRTC, which was duly paid. Due to the accident, the bus was damaged and a sum of Rs.23,199/- was spent for the repair and since the bus had to be laid off for 34 days, it further suffered loss of Rs.3021/- per day. Thus, the claimant-HRTC was entitled to a sum of Rs.3,15,325/-. The truck was insured with M/s. National Insurance Co. Ltd. The claim petition was opposed by the owner, the driver and the insurer on different grounds. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the vehicle No. HP-24-4576 had suffered damage on account of rash and negligent driving of respondent No.2 of truck No. RJ-02G-2015? OPP 2. If issue No.1 is proved to what amount of compensation and from whom is the petitioner entitled to? OPP. 3. Whether the claim petition is not maintainable in the present form? OPR-3. 4. Whether this Tribunal has no jurisdiction to proceed with the trial of the claim petition? OPR-3. 3 5. Whether the respondent No.2 had not been in possession of a valid and effective driving licence at the time of accident, if not, with what effect? OPR-3. 6. Whether the claim petition is bad for non- joinder and mis-joinder of necessary parties? OPR-3. 7. Whether the liability of respondent No.3 is limited to Rs.6,000/-? OPR3 8. Relief. The Tribunal found that the accident had occurred on 28.6.2000 due to the negligence of Shri Baldev, driver of the truck and that due to the same not only the bus belonging to the petitioner was damaged but the passengers sustained injuries and Shri Raj Kumar, conductor of the bus died due to the same. Based on the material on record, the Tribunal decided the claim petition awarding the following compensation:- “Rs.30,210.00 compensation @Rs.3,021/- X 10 towards lay off. Rs.23,199.00 towards the expenses incurred by the HRTC for repair of the bus. Rs.1,86,900.00 amount paid by the HRTC to the legal heirs of the deceased Shri Raj Kumar, conductor.” Mr. Ashwani Sharma, learned counsel for the insurer has assailed the appeal on the ground that the amount awarded as compensation for the period of lay off and the amount of compensation paid to the legal heirs of the deceased Shri Raj Kumar, conductor could not have been awarded in a claim petition u/s 166 of the Act. Per contra, Mr. H. S. Rawat, learned counsel for respondent No.1 has supported the award for the reasons set out therein. 4 The challenge to the petition is limited and confined to issue No.2 only. Mr. Sharma fairly conceded that a sum of Rs.23,199/- and Rs.2185/- spent by the HRTC for purchasing the spare parts of the bus and labour charges for repair, have been rightly awarded by the Tribunal. Hence, the award to this extent needs to be upheld. Question however remains as to whether HRTC could have filed a claim petition, claiming a sum of Rs.30,210/- as compensation towards lay off of the bus for 10 days @ Rs.3021/- and Rs.1,86,900/- paid by them as compensation to the legal heirs of deceased Conductor employed by them. Admittedly, the driver, the owner or the insurer herein were not parties to the claim petition filed under the Workmen’s Compensation Act before the Commissioner Workmen. Nothing has been brought on record to even show, much less plead and prove the fact that HRTC had pleaded in the said proceedings that the accident had taken place due to the fault and negligence of Shri Baldev Singh, driver herein, and that the offending vehicle being insured with the present insurer was liable to indemnify the insured. While passing the impugned award, the Tribunal below has not gone into the question of maintainability of the petition qua these claims. The order is reproduced as under: “The bus had been catering to a route of commercial importance. The petitioner corporation had produced the daily income of bus No. HP-24-4576. It is revealed from the evidence on record that that bus No. HP-24-4576 was 1999 Model. The petitioner corporation had been right in saying that the bus had been earning Rs.3021/- per day. The petitioner corporation had stated that the repair of the bus had taken 34 days. After taking into consideration the facts and circumstances of the case, I find that the petitioner corporation 5 could not be allowed compensation for lay off the bus for 34 days. The bus could be repaired within 10 days. The petitioner corporation is entitled to compensation of Rs.3021/- x 10 = Rs.30,210/-. The petitioner corporation had paid a sum of Rs.1,86,900/- to the legal heirs of Shri Raj Kumar, Conductor as per oral and documentary evidence placed on record. Shri Raj Kumar, Conductor had suffered fatal injuries on account of rash and negligent driving of truck No.RJ-02G-2015 by respondent No.2. The petitioner corporation is entitled to recover a sum of Rs.1,86,900/- from respondents No.1 to 3 on account of compensation paid by the H.R.T.C. to the legal heirs of Shri Raj Kumar, Conductor. The petitioner corporation is entitled to recover a sum of Rs.25,384/- on account of service and labour charges of the bus. The petitioner corporation is entitled to just and reasonable compensation of Rs.25,384/- + Rs.30,210/- + Rs.1,86,900/- = Rs.2,42,494/-. Issue No.2 is answered in favour of the petitioner and against the respondents No.1 to 3.” I may also point out that the Tribunal had not assigned any reason while arriving at its conclusion. Simply because the HRTC paid its statutory liability that by itself would not be a ground for holding the insurer liable for the same. The provisions of Sections 165 and 166 of the Act are unambiguous and evidently make it clear that the Tribunal is established to adjudicate upon the claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party or both. Application for compensation arising out of an accident of a motor vehicle can be filed, inter alia by the owner of the property and the Tribunal is to adjudicate and award compensation which is just, fair and reasonable. 6 The question involved herein, infact is no longer res integra. This Court in FAO(MVA) No.456/2000. titled as Oriental Insurance Co. Ltd. vs. Balwant Singh & Ors., decided on 25.10.2005, after considering the decision rendered by the various High Courts reported in Shantilal Chhitarji Soni and others vs. M.P. Rajya Parivahan Nigam and another, 1992 ACJ 780, Kacharmal Kishanlal Mahajan and another vs. Chairram Kishanlal Mahajan and another, 1992 ACJ 986, New India Assurance Co. Ltd., vs. Subhash Jain and others, 1993 ACJ 412, Nesamony Transport Corporation Ltd. vs. Kochammal (minor), Rep. by father and next friend T. Rajiah and others, 1 (1995) ACC 601 and M/s. Thiruvalluvar Transport Corporation Ltd., vs. C. K. Syed Yacoob, 1(2000) ACC 67, has held that the intention of the Legislator under the Motor Vehicles Act was only to grant jurisdiction to the Motor Accident Claims Tribunal to award damages for the loss to the property. As such, the consequential business loss can neither be assessed nor awarded by the Tribunal. Importantly, the Court was dealing with the similar situation wherein the owner of the vehicle had claimed compensation for the duration of the vehicle having remained idle, and it set-aside that part of the award wherein damages for the same had been awarded. The loss caused due to the vehicle remaining idle was held not the damage to the property but a loss to the owner and loss to the business could not be termed to be a damage to the property covered under Section 165 of the Act. Section 175 of the Act barred the jurisdiction of the Civil Court only with respect to the claims for compensation which could be adjudicated upon by the Claims Tribunal. 7 This view has been subsequently reiterated by another learned Single Judge of this Court in National Insurance Company vs. The Bilaspur Gramudhyog Association & Ors. 2007(2) Sim.Law Cases 489. This has been the consistent view of this Court. Importantly, the statute uses the expression, “damages to any property” which does not and cannot mean “loss to property” or “loss arising as a result of damages to the property”. The Legislators have been careful in using the expression which is unequivocal, unambiguous and clear and the Court cannot add or substitute any words to the same. The Tribunal could not have awarded compensation for the period for which the vehicle was kept idle and the compensation paid by the HRTC to its employees under the Workmen’s Compensation Act could not have been adjudicated and awarded by the Tribunal. The jurisdiction of the Tribunal to entertain and adjudicate upon the claims relating to consequential loss arising out of the damage to the property not being there. The appeal is partly allowed and the award of the Tribunal is modified to the extent that the claimant (HRTC) shall be entitled to only a sum of Rs.25,384/- as compensation on account of damage caused to the property. July 28, 2009 (Sanjay Karol) (rana) Judge.