IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO Nos. 92 & 445 of 2005. Judgment reserved on: 14.5.2008 Date of Decision: June 20, 2008 ________________________________________________________________ 1. FAO No. 92 of 2005. National Insurance Company Ltd. ...Appellant Versus Smt. Balbir Kaur & Ors. … Respondents. For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the Respondents: Mr. Virender Rathore, Advocate for Respondents 1 and 2. Mr. Sanjay Dutt Vasudeva, Advocate, Advocate for respondent No.4. 2. FAO No. 445 of 2005. Smt.Balbir Kaur & anr. ….Appellants. Versus. Shri Sukhwinder Singh & others ….Respondents. For the Appellants: Mr. Virender Rathore, Advocate. For the Respondents: Mr. Sanjay Dutt Vasudeva, Advocate For respondents 1 & 2. Mr. Ashwani K Sharma, Advocate for respondent No.3. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes ________________________________________________________________ Deepak Gupta, J . By this judgment, the aforesaid appeals are being disposed of as they both arise out of the same award. - 2 - Briefly stated the facts of the case are that Smt. Balbir Kaur and Ajaib Singh, (hereinafter referred to as the claimants), filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as the Act), claiming compensation of Rs. 10 lacs on account of the death of their son Fateh Singh in a motor vehicle accident which took place on 8.4.2003 at Mauja Kathog, Police Station Jawalamukhi, Tehsil Dehra, District Kangra, H.P. In the petition it was alleged that the deceased after performing Puja in Jawalamukhi temple along with other family members and Sangat were going from Jawalamukhi to Chintpurni when the accident took place. It was alleged that the accident occurred due to the rash and negligent driving of respondent No.2, who lost control of the vehicle. The deceased was a young boy of 17 years and was studying in Class 9th. It was also alleged that he was doing the welding work in a workshop in extra time. It was also averred that he was also doing the agriculture work. The total income of the deceased from these pursuits was stated to be Rs. 5000/- per month. The vehicle in question was a Tata Tempo 407 bearing registration No. PB-09-A-5259. The owner and driver of the vehicle filed a common reply. According to them, the vehicle had been hired by Sh - 3 - Ajaib Singh father of the deceased for carrying Lungar material which was used at Jawalamukhi. It was further alleged that Fateh Singh was traveling in the vehicle as the owner of the material and after unloading the material, the vehicle was returning when the accident took place. The Insurance Company in its reply took up a plea that vehicle was a goods vehicle and no passenger could be carried in it and, therefore, it was not liable to pay compensation. The learned Tribunal vide the impugned award has come to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the Tempo. He held that the claimants were entitled to Rs. 1,45,000/- as compensation. He, however, came to the conclusion that since the deceased was an unauthorized passenger in a goods vehicle, therefore, the Insurance company is not liable to pay compensation. He, however, directed the Insurance Company to deposit the amount of insurance and held it entitled to recover the amount of compensation from the owner of the vehicle. Aggrieved by the said award, the Insurance Company has filed FAO No. 92 of 2005 wherein it has contended that once it was found that the deceased was an unauthorized passenger in a goods vehicle, no - 4 - liability could have been fastened upon the Insurance Company. On the other hand, the claimants have also filed an appeal in which they have prayed for enhancement of compensation. No appeal was filed by the owner of the vehicle. During the course of arguments, it has been argued by the learned counsel for the claimants that in fact the learned Tribunal erred in holding that the deceased was an unauthorized passenger in the vehicle. As noted above, the claimants in their case set up before the learned Tribunal had not made any averment as to in what capacity the deceased was traveling in the tempo. All that was stated was that they had gone to Jawalamukhi temple to pay obeisance and after performing Puja, when they were returning the accident took place. PW2 while appearing in the witness box set up a new case that his son and he were traveling in the Tempo after unloading langar material at Jawalamukhi. In cross- examination, he admitted the suggestion put to him by the owner that the vehicle had been hired for transportation of langar material. He denied the suggestion that the deceased was only a student and was not doing any other work. - 5 - PW4 Gurdeep Singh has stated that the deceased Fateh Singh used to do welding work with him. According to him, the deceased was being paid a salary of Rs.5000/- per month. In cross-examination, he denied that the deceased was a student. He has, however, not been able to produce any document with regard to the workers employed by him or salaries paid to the workers. He has admitted that his shop is at a distance of 8 kms. from the village of the deceased. In cross-examination, he has admitted that the deceased was also studying in the school. This is the entire evidence in this case. The Insurance Company has produced the policy of Insurance which shows that the vehicle was insured as a goods carriage vehicle and no passenger was permitted to be carried in it. By now the law is well settled that the Insurance Company cannot be held liable in respect of a gratuitous passenger being carried in a goods vehicle. Reference in this behalf may be made to the judgments of the apex Court in New India Assurance Co. Ltd. versus Asha Rani and others, 2003 ACJ 1 and Oriental Insurance Company Co. Ltd. versus Devireddy Konda Reddy and others, (2003) 2 SCC 339. - 6 - In the claim petition, it has not been stated as to in what capacity the deceased was traveling in the vehicle. However, a perusal of the documents and the evidence makes it clear that a large number of persons were traveling in the vehicle. They were going for pilgrimage to various Temples. Realizing that the liability may be fastened upon the owner of the vehicle, a new case was set up in the written statement of the owner that the deceased was traveling as owner of the material. In fact there is nothing on record to show that the deceased Fateh Singh was the owner of the langar material. Other than bald statement of the father, in cross-examination, there is no material to show that the vehicle had been hired for transportation of langar material. In fact from the perusal of the FIR Ex.PW1/A, it is apparent that there were 35 – 40 people traveling in this tempo. As such there was virtually no space for carrying any goods. The case of the respondents that the deceased was owner of the goods cannot even otherwise be accepted. As per material on record and the case set up by the parties, the tempo was hired by the claimant Ajaib Singh. He was the owner of the goods. There is no material on record to - 7 - show that Fateh Singh was owner of the goods which were being transported in the vehicle. It is next contended that even if Fateh Singh was not owner, he can be treated to the authorized representative of the owner. This contention cannot also be accepted. Section 147(1) which is for decision of the present case reads as follows:- “ 147. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2)— (i) against any liability which may be incurred by him in respect of the death of or bodily 1[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) xxx xxx xxx xxx xxx xxx” A bare perusal of this provision shows that the Insurance Company under the Motor Vehicles Act is only required to issue policy covering liability in respect of owner of the goods or his authorized representative. If the owner of the goods is traveling in the vehicle, he cannot have any person as his authorized representative in the vehicle. The legislature has used the word “or” which clearly shows that the liability will cover either the owner of the goods or his authorized - 8 - representative. Since Ajaib Singh was traveling in the vehicle as the owner of the goods, Fateh Singh cannot be held to be his authorized representative. Therefore, the Insurance Company has rightly been exonerated from its liability to pay compensation. On behalf of the Insurance Company, it is submitted that once the Insurance has been exonerated from its liability, it should not have been held liable to satisfy the award. On the other hand learned counsel for the claimants has claimed that the Insurance Company be ordered to satisfy the award. The apex Court in a number of cases has held where the Insurance Company is not held liable, it should not be directed to satisfy the award. Therefore, the Insurance Company cannot be ordered to satisfy the award. Such an order would militate against the law laid down by the apex Court. As far as the quantum of compensation is concerned, I find that the amount awarded by the learned Motor Accident claims Tribunal is even les than the amount which would have been payable in case the claimants had filed a petition under Section 163 A of the Motor Vehicles Act. In a claim under Section 163-A the compensation would not have been less than Rs. 1,54,000/-. - 9 - I am of the opinion that the deceased was a student and was not earning any amount. However, keeping in view his future prospects, it would not be unreasonable to hold that in times to come, he would have earned about Rs. 3000/- per month which is the minimum wages payable in the State of Himachal Pradesh today. Even taking the dependency of parents at Rs.1000/- per month, the loss of dependency comes to Rs.12000/- per year. Keeping in view the age of the parents and deceased, it would be appropriate to apply multiplier of 12. In addition thereto, Rs. 10,000/- is awarded as loss of love and affection and Rs.10,000/- on account of funeral expenses etc. The claimants are entitled to total compensation of Rs.1,64,000/-. In view of the above discussion, both the appeals are partly allowed. The award of the learned Tribunal is modified and the claimants are held entitled to compensation of Rs.1,64,000/- along with interest at the rate of 9% per annum w.e.f. 2.5.2003 the date of filing of the claim petition till payment /deposit of the amount. This amount shall include the amount, if any, paid under Section 140 of the Motor Vehicles Act. The liability to pay compensation is only that of the owner and driver of the vehicle i.e. Sukhvinder Singh and Harmesh Lal, who are held jointly and severally liable to pay - 10 - the same. The Insurance Company is not liable to pay or deposit the amount of compensation. Parties are left to bear their own costs. June 20, 2008 ( Deepak Gupta ),J. s.