IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) Nos. 230, 126, 127, 149, 159, 227, 228, 229, 231, 232, 233, 234, 235, 236 of 2007 and 48 of 2008. Date of decision June 5, 2008. 1. FAO 230 of 2007. New India Assurance Co. Ltd. v. Sh. Kaljang Dorje & Anr. 2. FAO(MVA) 126 of 2007 New India Assurance Co. Ltd. v. Sh. Nawang Chhuldim & Ors. 3. FAO(MVA) 127 of 2007 New India Assurance Co. Ltd. v. Sh. Nawang Chhuldim & Ors. 4. FAO(MVA) 149 of 2007. New India Assurance Co. Ltd. v. Sh. Nawang Chhuldim & Ors. 5. FAO (MVA) 159 of 2007 New India Assurance Co. Ltd. v. Sh. Nawang Chhuldim & Ors. 6. FAO (MVA) 227 of 2007 New India Assurance Co. Ltd. v. Sh. Sonan Jalsson & ors. 7. FAO (MVA) 228 of 2007. New India Assurance Co. Ltd. v. Sh. Kaljang Dorje & Ors. 8. FAO (MVA) 229 of 2007. New India Assurance Co. Ltd. v. Smt. Lamo & another. 9. FAO (MVA) 231 of 2007. New India Assurance Co. Ltd. v. Smt. Dhani Mol & Ors. 10. FAO(MVA) 232 of 2007. New India Assurance Co. Ltd. v. Sh. Kaljang Chhering & Ors. 11. FAO (MVA) 233 of 2007 New India Assurance Co. Ltd. v. Smt. Shanti Devi & ors. - 2 - 12. FAO (MVA) 234 of 2007. New India Assurance Co. Ltd. v. Sh. Kaljang Dorje & Anr. 13. FAO(MVA) 235 of 2007. New India Assurance Co. Ltd. v. Sh. Tashi Jangpo & Anr. 14. FAO (MVA) 236 of 2007. New India Assurance Co. Ltd. v. Sh. Tanzin Chhopel & Anr. 15. FAO (MVA) 48 of 2008. New India Assurance Co. Ltd. v. Sh.Kaljang Chhering & Anr. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the appellant(s) Sh. K.D.Sood, Advocate, with Mr. Sanjeev Sood, Advocate. For the claimant(s) Ms. Rita Goswami, Advocate. For the owner(s) Mr. B.C.Negi, Advocate. Dev Darshan Sud, J. (Oral). All these appeals are being disposed of by a common judgment as they arise from the same accident and involve common questions of law and facts. The claim petitions of the claimants in these appeals were dismissed by the Learned Motor Accident Claims Tribunal, Kinnaur on the ground that the claimants had failed to prove that the accident in question occurred due to the rash and negligent acts of the driver of the vehicle in question. Fifteen appeals were preferred in this Court which were 1 Whether Reporters of Local Papers are allowed to see the judgment? - 3 - disposed of by a common judgment on 23.6.2006 in FAO No.28 of 2006, titled: Kaljang Dorje vs. Dorje Phunchok and another by Deepak Gupta, J, who heard the appeals, held: “From the aforesaid facts it is clear that the principle of res ipsa loquitur applies n the present case and presumption could be raised that the accident occurred due to the negligence of the driver. Applying the said principle the onus shifted upon the respondent(s) to prove that the accident did not occur due to the negligence of the driver. They led no evidence on the issue of negligence and therefore, drawing an adverse inference against the respondents. It can easily be held that the accident occurred due to the negligence of the driver. Even if the principle of res ipsa loquitur is not applied and presumption of negligence is not raised, in my opinion, in the present case there is sufficient material on record to hold that the accident occurred due to the negligence of the driver. Admittedly the accident took place due to overloading. Then also the fault lies squarely upon the driver. He should have ensured that his vehicle is not overloaded and should not have carried so many passengers in his vehicle. The rustic villagers and children who were in the vehicle would not have known what is the capacity of the vehicle. The driver of the vehicle - 4 - was the best person to have known the capacity of the vehicle. Therefore, the act of the driver in overloading the vehicle especially in a mountainous terrain itself amounts to a serious act of negligence. Further when the vehicle stalled due to overloading he could not apply the brakes and control the backward movement of the vehicle, which also shows that there was negligence on his part while driving the vehicle. Therefore, negligence of the driver is writ large. In view of the above discussion, I am of the considered view that the claimants have proved that the accident in question occurred due to the rash and negligent driving of the driver of the vehicle. The impugned awards of the learned Tribunal are accordingly set aside.” (emphasis supplied) The fact that the accident was the result of overloading and considering the terrain in which the vehicle was being plied, was the direct cause of the accident already stands decided as the judgment(s) having been accepted by the parties, have not been challenged in appeal and have attained finality. On remand, the learned Motor Accident Claims Tribunal has allowed all the appeals and awarded compensation in accordance with law fixing and apportioning the liability on the Insurance Company. - 5 - The factum regarding the accident is not disputed and need not be considered here again as the matter already stands concluded by the judgment of this Court as referred to hereinabove. The accident had occurred on 17.7.2003 at around 10.30 in the morning near a place called Chhota Dhara and all the occupants of the ill fated vehicle died and their bodies were washed away in a swift current of the river in which the ill fated vehicle plunged. Learned counsel for the appellant has placed reliance on a judgment of the Madhya Pradesh High Court in New India Insurance Company Limited vs. Ratibai and others, 2007 ACJ 1119 that over loading of a vehicle was not of a such fundamental breach which would enable the Insurance Company to escape from its liability of compensating the deceased. To similar effect, he placed reliance on a decision of this Court in National Insurance Co.Ltd. vs. Reena Devi and others, 2005 ACJ 1306. The judgments cited by the learned counsel is distinguishable on the ground that this Court in the previous litigation between the parties has specifically held that the accident is the result of over loading which has been the only factor for the over loaded vehicle rolling down the hill side and falling into the deep river. It must also be noticed that owner himself has not appeared as a witness to say that he is in no manner responsible for contributing to the breach of the - 6 - conditions of the policy i.e. over loading etc. The finding on the issue on record is that the accident took place due to over-loading, there can be no escape from the liability being fastened on the owner. The main contention of learned counsel appearing for the appellants is that the liability should not have been apportioned and fastened on the Insurance Company as it was the negligence of the driver and the owner of the vehicle and the amount should have been recovered from the owner of the vehicle, namely Dorje Phunchok, respondent. It is undisputed that the judgment of this Court passed in FAO Nos. 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 of 2006 has attained finality, as nobody has challenged it in appeal. Learned counsel appearing for the respondent submits that it is the Insurance Company which is liable to pay this amount. He has placed reliance on the decision of the Supreme Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer, Hassan , (1996) 4 SCC 647, wherein it was held: “(7) … … … … … … … Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, - 7 - be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. … … … … …”` As noticed by me the issue regarding breach of the conditions of the policy, that is over-loading, which was the only cause for the accident, already stands adjudicated by this Court and it is not open to me to reopen that issue again in these appeals. The principle of law as urged by the learned counsel appearing for the respondents that overloading is not such a breach which is fundamental and results in the negation of the liability of the owner cannot be accepted as factually it has been held otherwise. These appeals are accordingly allowed. The judgment(s) of the Motor Accident Claims Tribunal in this appeal are modified to the extent that it is the owner and driver of the vehicle who are held liable jointly and severally for the accident and the breach complained of and established by the Insurance Company. The sole cause of the accident was overloading, which stands established by the evidence on record. In the first instance it is the Insurance Company which shall be liable to pay the awarded - 8 - amount to the claimants. However, it will be at liberty to recover the amount from the owner and the driver of the vehicle whose liability is joint and several as held by me. Further direction is issued that in no case will the amount be recoverable from any of the claimants. These appeals are accordingly allowed with these directions. There shall be no order as to costs. June 5, 2008. (Dev Darshan Sud) (PC / aks) Judge