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2005 DIGILAW 492 (HP)

KOTLA CO-OP. SOCIETY v. MOHINDER ARUN

2005-12-26

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.:- This judgment shall dispose of 9 appeals as they arise out of the same accident. Eight appeals arise out of award dated 15.1.2002 and one appeal out of award dated 22.7.2003. The same point is involved in all the appeals. 2. Briefly stated the facts necessary for decision of the case are that truck No. HP-51-0923 was admittedly owned by Kotla Cooperative Society, Thachi. This truck was being driven by one Hem Chand. The victims (injured and deceased) were traveling in the truck which was involved in the accident. The claimants filed the claim petitions claiming compensation. In these claim petitions there was no averment made as to in which capacity the victims were traveling in the truck. 3. FAO Nos. 161 and 364 of 2002 arise out of Claim Petition No. 12-S/2 of 1998 filed by Mohinder Arun. In this claim petition, the injured claimant was a student of BA Part I and was studying in a college at Shimla. The accident took place near Thachi. In the claim petition, it is only mentioned that on 5.9.1997 when the claimant was traveling in the vehicle in question, the same met with an accident. It is further stated as follows :- "The claimant was traveling in the vehicle as he was coming back to his home after attending the school." 4. The owner filed the reply in which it was stated that the claimant boarded the vehicle from Dhami to Thachi and thereafter was to go to Kandhran. According to the reply, the driver of the vehicle engaged the claimant as labourer so as to load and unload 1500 bricks from Thachi to Kandhran. It was also stated that the claimant was to be paid Rs.100/- as wages. A rejoinder purported to have been filed on behalf of the claimant which was neither signed by him nor supported by his affidavit in which these averments were admitted. The insurance Company took up the plea that since the victim was an unauthorized passenger traveling in a goods vehicle, it was not liable to pay the compensation. 5. FAOs No. 162 and 367 of 2002, arise out a claim petition No. 15-S/2 of 1998 filed by the parents of Narain Dass. The insurance Company took up the plea that since the victim was an unauthorized passenger traveling in a goods vehicle, it was not liable to pay the compensation. 5. FAOs No. 162 and 367 of 2002, arise out a claim petition No. 15-S/2 of 1998 filed by the parents of Narain Dass. In this claim petition also the averments are similar that the victim who was a student of plus two in Government School, Dhami was coming home in the truck after attending the school. Similar replies have been filed by the respondents as in claim petition No.12-S/2 of 1998 and are not repeated for the sake of brevity. 6. FAO Nos. 163 and 366 of 2002 arise out of a claim petition No. 13-S/2 of 1998. This claim petition was filed by claimant Manoj Arun who is the brother of claimant-petitioner Mohinder Arun in claim petition No. 12-S/2 1998. The averments made in the claim petition are virtually identical. 7. FAO Nos. 164 and 365 of 2002 arise out of a claim petition No. 11-S/2 of 1998. This claim petition was filed by the heirs of the victim Chet Ram. In this claim petition, it was alleged that the deceased who "was the Head Master in Government School Mandalo.Dhami was travelling in the ill fated truck as he was coming home after attending the school. In reply to this petition, the owner took up the plea that the deceased had taken lift from the driver and paid fare upto Thachi. This fact was admitted in rejoinder. 8. FAO No. 187 of 2005 arises out of an award dated 22.7.2003 passed in Claim Petition No. 14-S/2 of 1998. This claim petition was filed by the heirs of the victim Mehar Chand. It was stated that Mehar Chand was labourer and also used to do labour work. In the claim petition it is stated that on 5.9.1997, the victim Mehar Chand who was coming home after doing his regular work and had, therefore, boarded the1 ill fated vehicle. In this case too, the owner took up a plea that the victim was hired as labourer by the driver to carry the bricks. 9. Four claim petitions Nos. 11,12,13 and 15-s/2 of 1998 were decided by the Motor Accident Claims Tribunal, Shimla vide award dated 15.1.2002. He came to the conclusion that the victims were gratuitous passengers in the truck. 9. Four claim petitions Nos. 11,12,13 and 15-s/2 of 1998 were decided by the Motor Accident Claims Tribunal, Shimla vide award dated 15.1.2002. He came to the conclusion that the victims were gratuitous passengers in the truck. However, following he judgments of the Apex Court in New India Assurance Company Ltd. v. Satpal Singh, AIR 2002 (?) SC 235, the learned Tribunal held that the Insurance Company was liable. Even though the judgments in New India Assurance Company Ltd. v. Asha Rani and others, 2003(1) ACJ I and Ramesh Kumar v. National Insurance Co. Ltd & ors., 2001 (VI) SLT 36 (SC) were cited before the learned Tribunal, he held that in view of Sat Pals case, the Insurance Company was liable. 10. In the second award passed on 22.7.2003, the learned Tribunal taking note of the judgment in Asha Ranis case and Oriental Insurance Company v. Devireddy Konda Reddy, 2003(2) SCC 339, held that the amount shall be paid by the owner. 11. The law with regard to the liability of the Insurance Company in respect of passengers being carried in a goods vehicle in now settled. A three judge Bench of the Apex Court in New India Assurance Co. Ltd. v. 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 traveling in a goods vehicle. This decision was in context of the un-amended Act. The Apex Court overruled its earlier judgment in New India Assurance Co. Ltd. v. Satpal Singh, 2000(1) SCC 237. It 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 Workmens Compensation Act. 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 Workmens Compensation Act. It does not speak of any passenger in a goods carriage. 26. In view <3f the changes in the relevant provisions in the 1988 Act vis-a-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 traveling in a goods vehicle, the insurers would not be liable therefor." 12 This matter again come up for consideration in Oriental Insurance Company v. 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. It 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 "good 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 the passengers cannot be carried in a goods vehicle. 13. In National Insurance Company Ltd. v. Baljit Kaur and others, 2004(2) SCC 1, the Apex Court considered the impact of the amendment of 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 with respect to owner of the goods or his authorized representatives. 13. In National Insurance Company Ltd. v. Baljit Kaur and others, 2004(2) SCC 1, the Apex Court considered the impact of the amendment of 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 with respect to owner of the goods or his authorized representatives. 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 representatives 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 of 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." 14. The Apex Court again 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-mended, the Apex court held as follows :- "The difference in the language of "goods vehicle" as appearing in the old Act and "good 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 "good carriage" is solely for the carriage of goods. Carrying of passengers in goods carriages 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. The position becomes further clear because the expression used in "good carriage" is solely for the carriage of goods. Carrying of passengers in goods carriages 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 respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (In short "the WC Act). There is no reference to any passenger in "good carriage". 15. Following the aforesaid judgments, a similar view was taken by the Apex court in National Insurance Company v. Chinnamma and others, 2004(8) SCC 697. 16. Now the question to be decided in the present case is whether the victim (deceased) was unauthorized passengers in a "good carriage" or not. 17. As far as the claim petition No. 11-S/2 of 1998 giving arise to FAO Nos. 365 and 165 of 2002 are concerned the case of the owner insured is that the victim Chet Ram had boarded the vehicle after paying fare. Even if this position is accepted, the victim cannot be said to be an authorized passenger in a goods vehicle since -no passengers whether fare paying or gratuitous are allowed to travel in a goods carriage. Hence in this case, there can be no manner of doubt that the Insurance Company has wrongly been fastened with the liability to pay compensation. 17-A. With regard to the other cases, one salient feature is that in none of the claim petitions it was even alleged that the victims were traveling as labourers in the truck. It would not be out of place to mention that out of five claim petitions only in the case of Mehar Chand was he shown to be a labourer. All the there cases related to students who were studying in plus two or college. There is not even a whisper in the claim petitions that they were traveling as labourers in the truck. 18. The owner is a Society. None but the driver was present in the truck on behalf of the owner. All the there cases related to students who were studying in plus two or college. There is not even a whisper in the claim petitions that they were traveling as labourers in the truck. 18. The owner is a Society. None but the driver was present in the truck on behalf of the owner. The owner took up a plea in the written statement that the victims were hired as labourers to carry bricks from Thachi to Kandhran. It would be pertinent to mention that in the reply, no details have been given as to from where the truck was coming. The victims had boarded the vehicle at Dhami which is about 25 kms from Thachi. Kandhran is further away from Thachi.. In the reply no details have been given as to whose bricks were to be carried in the vehicle. 19. Mr. B.S. Chauhan, learned Counsel appearing on behalf of the owner/insured submits that the bricks were to be loaded at Thachi and was to be taken to Kandhran. He submits that this averment made in the reply has been admitted by the claimants in their rejoinder. He further submits that in view of this admission, no evidence was required to be led on behalf of the owner and that the onus to prove issue No. 3 was upon the Insurance Company that the victims were gratuitous passengers and since the Insurance Company has led no evidence, it should be made liable especially when the claimants have stated in their cross-examination that the victims were traveling in a goods vehicle as labourer. 20. On the other hand Mr. Ashwani Kumar Sharma learned Counsel appearing on behalf of the Insurance Company submits that there is no averment in the claim petitions that the victims were employed to carry bricks from Thachi to Kandhran. He further submits that there is nothing on record to show that from where the bricks were to be purchased and who was the owner and to who they were to be supplied. It is only in the last stage where the witness for the Insurance Company appeared that a suggestion was put to the witness in cross-examination that the bricks belong to one Het Ram. It is only in the last stage where the witness for the Insurance Company appeared that a suggestion was put to the witness in cross-examination that the bricks belong to one Het Ram. He further submits that keeping in view the fact that out of five victims, one was a Head Master and three were students and all were returning to their native places after perusing their studies or doing their work, it is difficult to believe the version that they were employed as labourers. He submits that as per pleadings and the evidence, it stands clearly proved that all the victims were gratuitous passenger in a goods carriage. 21. I have given my careful consideration to the entire evidence. The two injured claimants in their statements while appearing as PW-5 and PW-6 in examination-in-chief have not stated the fact that they were employed as labourers. In cross-examination by the owner, they have admitted that they used to work as part time labourer. They stated that they boarded the truck on the asking of the driver of the truck because some goods were to be loaded in the truck. They were to help in loading the goods and were to receive wages for doing the job. It is also admitted that at the time of the accident no goods were being carried in the truck. The only suggestion put to this witness by the owner is that he was to help in loading some goods in the truck. PW-6 Mohinder Arun also states that some goods were to be loaded in the truck. A suggestion made to this witness was that the goods were to be loaded at Kandhran. This is contradictory to the stand taken in the written statement that the goods were to be loaded at Thachi and were to be taken to Kandhran. 22. RW-1 Gauri Shanker is the Secretary of the owner Society. He does not state a word as to in what capacity the victims were traveling in the vehicle. He also does not state a word as to who had hired the truck and what goods were to be carried in the truck. The statement of RW-2 is not very relevant. I am unable to accept the contention of the owner that the victims were employed by the driver to unload the vehicle. The story set up makes no sense. The statement of RW-2 is not very relevant. I am unable to accept the contention of the owner that the victims were employed by the driver to unload the vehicle. The story set up makes no sense. According to the owner, the goods i.e. bricks were to be loaded at Thachi and taken to Kandhran. The distance between these two places is 2 to 3 kms. What was the truck doing at Dhami which is 25 kms away from Thachi in the other direction. It is no bodys case that no labourers were available at Thachi or Kandhran. Nothing has come on record to show that as to who was the alleged owner of the goods which were to be carried in the truck. At the time of the accident, admittedly there were no goods in the truck. Why would the driver get labourer from more than 25 kms away ? This story does not inspire confidence especially in view of the fact that all the victims were admittedly returning home after pursuing their studies or doing their work. It is clear that after the claim petitions were filed, realizing that the Society may be held liable to pay the amount, the petitioners and the claimants connived with each other to set up a case that the injured/victims were traveling as labourers so that the liability could be fastened upon the Insurance Company. 23. To be fair, Mr. B.S. Chauhan, has cited a judgment of this Court in Ramesh Chand v. New India Assurance Company and others, 2005 Latest HLJ 845 : 2005(2) Cur. L.J. (H.P.) 185 where some of the facts are similar. However, in that case, the main question was with regard to the admissibility of FIR. Each case has to be decided on its own peculiar facts and in the present case after going through the entire evidence, I am of the considered opinion that the victims were traveling in the vehicle as gratuitous and unauthorized passenger and as such the Insurance Company could not be held liable. 24. In view of the above discussion, the appeals are allowed and it is held that the Insurance Company has wrongly been held liable to pay the compensation in the award dated 15.1.2002. The conclusion arrived at by the Motor Accident Claims Tribunal, Shimla in award dated 22.7.2003 is correct. 24. In view of the above discussion, the appeals are allowed and it is held that the Insurance Company has wrongly been held liable to pay the compensation in the award dated 15.1.2002. The conclusion arrived at by the Motor Accident Claims Tribunal, Shimla in award dated 22.7.2003 is correct. However, in view of the law laid down by the Apex Court in New India Assurance Company Ltd. v. Asha Rani and others, 2003(1) ACJ 1 and National Insurance Company Ltd. v. Baljit Kaur and others, 2004(2) SCC 1, it is directed that the Insurance Company with whom the vehicle was insured is liable to deposit the amount and shall be entitled to recover the same along with interest from the owner insured by filing execution proceedings before the MACT and without taking recourse to separate proceedings. The decision of this appeal shall be treated as a decision inter se the insurer and the insured. . 25. In view of the aforesaid discussion, the appeals filed by the Insurance Company being FAOs No. 364, 365, 366 and 367 are allowed. The appeals filed by the owner are dismissed and the appeal filed the claimants being FAO No. 187 of 2005 is partly allowed to the extent that the Insurance Company shall deposit the amount. No costs.