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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (MVA) No. 273 of 2011 a/w FAOs (MVA) No. 274, 302, 307 & 357 of 2011
Reserved on : 12.09.2014 Decided on : 19.09.2014 _______________________________________________________ 1. FAO (MVA) No. 273 of 2011
Oriental Insurance Company …..Appellant Versus
Smt. Veena Devi & others
…Respondents _________________________________________________________ 2. FAO (MVA) No. 274 of 2011
Oriental Insurance Company …..Appellant Versus
Smt. Sita Devi & others
….Respondents _________________________________________________________ 3. FAO (MVA) No. 302 of 2011
Rajesh Kumar & another
…..Appellants Versus
Smt. Veena Devi & another …Respondents _________________________________________________________ 4. FAO (MVA) No. 307 of 2011
Rajesh Kumar & another
…..Appellants Versus
Smt. Sita Devi & others
…Respondents ________________________________________________________ 5. FAO (MVA) No. 357 of 2011
Sita Devi
…..Appellant Versus
Shri Rajesh Kumar & others
…Respondents _________________________________________________________ Coram: The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice Whether approved for reporting?
Yes.
FAO (MVA) No. 273 of 2011
For the appellant : Mr. G.C. Gupta, Senior Advocate with
Ms. Meera Devi, Advocate.
For the respondents: Mr. Rajiv Rai, Advocate, for
respondent No. 1. Mr. Jagdish Thakur, Advocate, for respondents No. 2 & 3.
___________________________________________________________ FAO (MVA) No. 274 of 2011
For the appellant : Mr. G.C. Gupta, Senior Advocate with
Mr. Vinod Sharma, Advocate. For the respondents: Mr. Rajiv Rai, Advocate, for respondent No. 1. Mr. Jagdish Thakur, Advocate, for respondents No. 2 & 3. ____________________________________________________________ FAO (MVA) No. 302 of 2011
For the appellants : Mr. Jagdish Thakur, Advocate. For the respondents: Mr. Rajiv Rai, Advocate, for respondent No. 1. Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate, for respondent No. 2. ___________________________________________________________ FAO (MVA) No. 307 of 2011
For the appellants : Mr. Jagdish Thakur, Advocate. For the respondents: Mr. Rajiv Rai, Advocate, for respondent No. 1. Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate, for respondent No. 2. ___________________________________________________________ FAO (MVA) No. 357 of 2011
For the appellant : Mr. Rajiv Rai, Advocate. For the respondents: Mr. Jagdish Thakur, Advocate, for respondents No. 1 & 2. Mr. G.C. Gupta, Senior Advocate with Ms. Meera Devi, Advocate, for respondent No. 3. __________________________________________________________ Mansoor Ahmad Mir, Chief Justice.
All these appeals are outcome of a motor vehicular accident, involving vehicle-Tempo Trax bearing
registration No. HP-33/T-9832, thus I deem it proper to club all these appeals and determine by this common judgment. Brief facts: 2.
Smt. Veena Devi and Smt. Sita Devi, while traveling in Tempo Trax, bearing registration No. HP-33/T- 9832, as passengers, met with an accident, which was caused by driver, namely, Shri Sanjeev Kumar, while driving the said vehicle, rashly and negligently, on 22nd October, 2006, at 7.30 a.m., at Tihri in Kot-Dhar, Police Station Talai, District Bilaspur, H.P.; sustained injuries; shifted to Community Health Centre, Barsar, District Hamirpur, H.P.; referred to Indira Gandhi Medical College and Associated Hospital, Shimla and remained admitted there from 22nd October, 2006 to 18th November, 2006. 3.
Smt. Veena Devi filed MAC Petition No. 68 of 2007, titled as Veena Devi versus Shri Rajesh Kumar & others, for grant of compensation to the tune of `5,00,000/, before the Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, hereinafter referred to as “the Tribunal”, as per the break-ups given in the claim petition. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation to the tune of `4,91,500/- with interest at the rate of 7.5% per annum in favour of the
claimant and against the owner-insured, namely, Rajesh Kumar and the driver, however, the insurer-Oriental Insurance Company was directed to satisfy the awarded amount, at the first instance, with right of recovery, hereinafter referred to as “impugned award-I”. 4.
Smt. Sita Devi filed MAC Petition No. 69 of 2007 before the Tribunal for grant of compensation to the tune of `5,00,000/-; the Tribunal awarded compensation to the tune of 3,25,670/- with interest at the rate of 7.5% per annum in favour of the claimant and saddled the owner and driver with liability, however, the insurer-Oriental Insurance Company was directed to satisfy the awarded amount, at the first instance, with right of recovery, hereinafter referred to as “impugned award-II”. 5.
The respondents resisted the claim petitions on the grounds taken in the respective memo of objections. 6.
The Tribunal, on the pleadings of the parties, framed common issues in both the petitions. It is apt to reproduce the issues framed in MAC Petition No. 68 of 2007: 1. Whether the petitioner had sustained injuries on account of rash and negligent driving of Jeep (Tempo Trax No. HP-33-T-9832 being driven by Shri Sanjiv Kumar, respondent no. 2 on 22.10.2006 at about 7.30 p.m., near Tihri in Kot Dhar, District Bilaspur, H.P.?
….OPP
If issue No. 1 supra is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom?
….OPP
Whether the vehicle in question was being driven by an unauthorized person who had no valid and effective driving licence to drive such class of vehicle, at the relevant time?
…OPR-3
Whether the petitioner was traveling in the offending vehicle as gratuitous passenger at the relevant time which is in contravention of the terms and conditions of the insurance policy?
…OPR-3
Whether the offending vehicle was driven without proper documents, at the relevant time?
…OPR-3
Relief.”
The insurer-Oriental Insurance Company has questioned both the impugned awards, by the medium of FAOs No. 273 of 2011 and 274 of 2011, on the ground that the Tribunal has fallen in error in saddling it with liability as the owner-insured has committed willful breach of the terms and conditions of the Insurance Policy read with the mandate of Section 149 of the Motor Vehicles Act, 1988, hereinafter referred to as “the Act”. 8.
The owner-insured and the driver have also questioned both the impugned awards, by the medium of FAOs No. 302 of 2011 and 307 of 2011, on the ground that the insurer-Insurance Company was required to prove the contents of the Insurance Policy and to plead and prove
how the owner-insured has committed willful breach, which it failed to do so. 9.
Claimant Veena Devi has not questioned impugned award-I, on any count , thus it has attained finality so far as it relates to her. 10. In FAO No. 357 of 2011, claimant Sita Devi has questioned impugned award-II, on the ground of adequacy of compensation. Issue No. 1. 11. The factum of rash and negligent driving by the driver, occurrence of the accident and sustaining injuries by the injured-claimants are not in dispute. Thus, the findings returned by the Tribunal on this issue in both the petitions are upheld. Issue No. 3. 12. The insurer has not led any evidence to prove that the offending vehicle was being driven by a person who was not authorized to do so. There is ample evidence on record to the effect that the driver was having a valid and effective driving licence to drive the offending vehicle. Thus, the findings returned by the Tribunal on this issue in both the petitions are also upheld.
Issue No. 5. 13. The insurer has also failed to prove that the offending vehicle was being driven without proper documents. Thus, the findings returned by the Tribunal on this issue in both the petitions are also upheld. Issues No. 2 & 4. 14. Now coming to issues No. 2 & 4, which are inter-linked, the insurer-Insurance Company has specifically pleaded in its reply that Tempo Trax was not a passenger vehicle, but it was a private vehicle and was insured as per the terms and conditions contained in the Route Permit, Ext. RW-2/B read with the Act. The Insurance Policy is not covering the risk of the passengers. 15. The claimants in the claim petitions have pleaded that they were traveling in the offending vehicle as passengers. While going though the Route Permit, Ext. RW-2/B and the other documents on the record, one comes to an inescapable conclusion that the offending vehicle was not a passenger vehicle and no permission was granted to carry passengers. 16. The learned Counsel for the owner-insured and the driver failed to indicate or prove that the offending vehicle was a passenger vehicle and was having insurance policy or route permit as passenger vehicle.
Copy of Insurance Policy, Ext. R-X is on the files, which do disclose that the vehicle in question was meant for private persons and not for the passengers. 18. The definition of word “passenger” is given in Black’s Law Dictionary as under:- “In general, a person who gives compensation to another for transportation. Shapiro v. Bookspan, 155 Cal.App. 2d, 353, 318, P.2d 123, 126. The word passenger has however various meanings, depending upon the circumstances under which and the context in which the word is used; sometimes it is construed in a restricted legal sense as referring to one who is being carried by another for hire; on other occasions, the word is interpreted as meaning any occupant of a vehicle other than the person operating it. American Mercury Ins. Co. v. Bifulco, 74 N.J. Super, 191, 181 A.2d, 20, 22.
The essential elements of “passenger” as opposed to “guest” under guest statute are that driver must receive some benefit sufficiently real, tangible, and substantial to serve as the inducing cause of the transportation so as to completely overshadow mere hospitality or friendship; it may be easier to find compensation where the trip has commercial or business flavor. Friedhoff v. Engberg, 82 S.D. 522, 149 N.W. 2d 759, 761, 762, 763.
A person whom a common carrier has contracted to carry from one place to another, and has, in the course of the performance of that contract, received under his care either upon the means of conveyance, or at the point of departure of that means of conveyance.”
19.
In the New Oxford Dictionary, the word “passenger” is defined as under:
“A traveller on a public or private conveyance other than the driver, pilot or crew. • A member of a team or group who does far less effective work than the other members.”
In Webster”s Enclyclopedic Unabridged Dictionary, the definition of ward “passenger” is given as under:
“1.a person who is traveling in an automobile, bus, train, airplane, or other conveyance, esp. one who is not the driver, pilot, or the like.
a wayfarer, traveler.”
The Kerala High Court in a case titled as New India Assurance Co. Ltd., versus Annakutty and others, reported in AIR 1993 Kerala 299, has defined the “word” passenger. It is apt to reproduce paras-13 & 14 of the judgment (supra) herein:- “13. We are of the view that the import of the word ‘passenger’, occurring in S. 95(2) of the Motor Vehicles Act, has been unduly qualified or cut down and the wider meaning applicable to the said word in common parlance or found in the dictionaries has not been given effect to in the said decision. In the Concise Oxford Dictionary 1990 Edition at page 869, the meaning of the word ‘passenger’ is stated thus:
“a traveller in or on a public or private conveyance other than the driver, pilot, crew etc.”
For the word ‘traveller’, the meaning is given thus, at page 1300:
“A person who travels or is traveling”
The meaning of the word ‘travel’ is given thus at page 1300:
“Go from one place to another, make a journey, esp. of some length or abroad.”
It is a matter of common knowledge that all passenger vehicles carry persons even beyond the seating or standing capacity allowed by the Rules for the particular vehicle. Such persons do travel in the bus; they perform journey from place to place. Can this common import and understanding of the word be ignored, by giving an unduly restricted meaning to the word ‘passenger’ as a person who is provided with seating accommodation or whose travel is permitted by standing capacity, permitted for the vehicles under the Rules? In our considered view, the import of the word ‘passenger’ cannot be restricted by reference to the Motor Vehicles Rules, by which the seating accommodation is provided or standing in the vehicle is specifically permitted. The dictionary meaning is of wide import and we can look into the dictionary meaning of the term, in the absence of any definition in the Act for understanding the meaning to be given to a particular word Commissioner of Income-tax v. Benoy Kumar Sahas Roy, AIR 1957 SC 768 at 772 para 10. It is a salutary principle of statutory construction that in construting the words in a section, the first task is to give the words therein their plain and ordinary meaning and then to see whether the context or some principle of construction requires that some qualified meaning should be placed on those words. Gardiner v. Admiralty Commissioner, 1964 (2) All ER 93 at 97 (HL). The import of words cannot be cut down by arbitrary addition or retrenchment in language. With great respect to the learned Judge, who rendered the decision in Subramani’s case (1990 (1) ACJ 37) and National Insurance Co.’s case 1990(2) ACJ 821, we are unable to hold that the word ‘passenger’ occurring in S. 95(2) of the Motor Vehicles Act, should be limited to the case of a person who travels in the vehicle either by remaining seated in the seating
accommodation provided or by standing in vehicles where travel by standing is specially permitted. We are of the view that any person who performs the journey in the bus will be passenger. He will continue to be a passenger even at the time of alighting from the bus, if his physical contact with the bus still remains. We are of the view that the ordinary connotation of the word ‘passenger’ cannot be restricted or limited to only those persons who travel in the vehicle either by remaining seated in the seating accommodation provided or by standing in vehicles where travel by standing is specially permitted. We concur with the view stated in Venkataswami Motor Service’s case 1989 (1) ACJ 371 ; (1989 All LJ 868) para 20.
In Pandit Ram Saroop’s case 1988 ACJ 500, as a learned single Judge of the Delhi High Court was faced with a different situation. There, a person boarded the bus at ‘G’ stop and the destination point was ‘O’. The bus did not stop at the point ‘O’. If it had stopped there, the person could have got down. What happened was, the bus went ahead without stopping at the point ‘O” preventing the person from getting down at the point of destination. The bus went much ahead and when the person was trying to get down, the bus started and its rear wheels ran over him and killed him. The learned single Judge held that the character of the deceased as a passenger came to an end at the bus stop ‘O’, for which destination he had obtained the ticket. We are of the view that though this decision held that the deceased was not a passenger at the time of the accident, by a different reasoning, it cannot be said that the deceased was not performing a journey at the time when he was trying to get down from the bus and met with the accident. In the light of our reasoning that the word ‘passenger’ should be given the wide meaning so long as the person is performing the journey, with great respect to the learned Judge, we are unable to accept the decision in Pandit Ram Saroop’s case
1988 ACJ 500 as laying down the correct law.”
22.
The claimants have admitted that they were traveling in the offending vehicle as passengers and not as labourers or owners of goods. The owner-insured has not denied the said fact. 23. The Apex Court in a case titled as Oriental Insurance Company Ltd. versus Devireddy Konda Reddy & others, reported in AIR 2003 SC 1009 has held that if the passenger is traveling in the goods vehicle and the said vehicle meets with an accident, the insurer is not liable. It is apt to reproduce para-11 of the judgment (supra), herein: “11. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.”
The same principle was laid down by the Apex Court in a case titled as M/s National Insurance Co. Ltd. versus Baljit Kaur and others, reported in AIR 2004 SC 1340. It is apt to reproduce paras 7 & 20 of the aforesaid judgment, herein:-
“7. In the case of New India Assurance Co. Ltd. v. Asha Rani (supra), it was held that the previous decision in Satpal Singh case, was incorrectly rendered, and that the words "any person" as used in S. 147 of the Motor Vehicles Act, 1988, would not
include passengers in the goods vehicle, but would rather be confined to the legislative intent to provide for third party risk. The question in the subsequent judgment in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy (supra), involved, as in the present case, the liability of the Insurance Company in the event of death caused to a gratuitous passenger travelling in a goods vehicle. The Court held that the Tribunal and the High Court were not justified in placing reliance upon Satpal Singh case (supra), in view of its reversal by Asha Rani (supra), and that, accordingly, the insurer would not be liable to pay compensation to the family of the victim who was travelling in a goods vehicle.
…………………………….. 9. …………………………….. 10. …………………………….. 11. …………………………….. 12. …………………………….. 13. …………………………….. 14. …………………………….. 15. …………………………….. 16. …………………………….. 17. …………………………….. 18. …………………………….. 19. ……………………………..
It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in S. 147 with respect to persons other than the owner of the goods or his authorized representative 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 the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.”
25.
The Apex Court in a case titled as Manager, National Insurance Co. Ltd. v. Saju P. Paul and another reported in 2013 AIR SCW 609 in para 16 has held as under:-
“In the present case, Section 147 as originally existed in 1988 Act is applicable and, accordingly, the judgment of this Court in Asha Rani (supra) is fully attracted. The High Court was clearly in error in reviewing its judgment and order delivered on 09.11.2010 in review petition filed by the claimant by applying Section 147(1) (b)(i). The High Court committed grave error in holding that Section 147(1) (b)(i) takes within its fold any liability which may be incurred by the insurer in respect of the death or bodily injury to any person. The High Court also erred in holding that the claimant was travelling in the vehicle in the course of his employment since he was a spare driver in the vehicle although he was not driving the vehicle at the relevant time but he was directed to go to the worksite by his employer. The High Court erroneously assumed that the claimant died in the course of employment and overlooked the fact that the claimant was not in any manner engaged on the vehicle that met with an accident but he was employed as a driver in another vehicle owned by M/s. P.L. Construction Company. The insured (owner of the vehicle) got insurance cover in respect of the subject goods vehicle for driver and cleaner only and not for any other employee. There is no insurance cover for the spare driver in the policy. As a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he was a spare driver. The insured had paid premium for one driver and one cleaner and, therefore, second driver or for that purpose 'spare driver' was not covered under the policy.”
26.
The Apex Court in a case titled as National Insurance Co. Ltd. versus Swaroopa & others, reported in 2006 AIR SCW 3227 has also laid down the same principle. It is apt to reproduce para 4 of the judgment (supra) herein:
“Respondent Nos. 1 to 6 are the legal representatives of the deceased who died in an accident on 28th January, 1996 leading to the filing of a claim petition on 9th July, 1996 under the provisions of the Motor Vehicles Act, 1988. By order dated 20th August, 1998, the Motor Accident Claims Tribunal (for short, “the Tribunal”) granted compensation both against the appellant-Insurance Company and the owner of the vehicle, Respondent No. 7 herein. The appeal filed in the High Court by the appellant-Insurance Company disputing its liability to pay to the legal representatives of the deceased was dismissed on 27th August, 2002, in view of the law then prevailing as a result of the decision of this Court in New India Assurance Company v. Satpal Singh (2000 (1) SCC 237). The said decision has now been overruled by this Court in New India Assurance Company Limited v. Asha Rani & Ors (2003 (2) SCC 223) wherein it has been held that an Insurance Company will not be liable to pay compensation in respect of a gratuitous passenger being carried in a goods vehicle if the vehicle meets with an accident. In this view, we set aside the impugned judgment of the High Court affirming the order of the Tribunal. The claim petition against the appellant shall stand dismissed. We, however, clarify that the amount of compensation, if any, that may have been paid to Respondent Nos. 1 to 6 shall be recoverable by the Insurance Company from the owner of the vehicle, Respondent No. 7, herein and not from the legal representatives of the deceased.”
27.
In New India Assurance Co. Ltd. versus Vedwati & others reported in 2007, AIR SCW 1505, the Apex Court in paras-14 & 15 has held as under: “14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.
Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award.”
Having glance of the aforesaid decisions, the claimants were traveling in the said vehicle as passengers, but route permit was not for carrying passengers. Thus, the Tribunal has rightly held that the owner-insured has committed willful breach. 29. Learned Counsel for the owner-insured and the driver argued that it was for the insurer to plead and prove the terms and conditions of the insurance policy by leading evidence. The argument of the learned Counsel is devoid of any force because it is the admitted case of the parties that the offending vehicle was Jeep (Tempo Trax), was not a passenger vehicle and was being driven
in breach of the terms and conditions of the Insurance Policy. The owner-insured cannot plead and say that the insurance policy has not been proved. 30. It is a beaten law of land that the procedural rules are not applicable strictly, as held by the Apex Court in a case titled as Dulcina Fernandes and others versus Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646. 31.
Having said so, the appeals filed by the owner and the driver, i.e. FAO No. 302/2011 and 307 of 2011, are dismissed. 32. The insurer has to satisfy the impugned awards for the reason that the claimants are the third party and the Tribunal has rightly directed the insurer to satisfy the impugned awards with right of recovery. 33. Viewed thus, the appeals filed by the Insurance Company, i.e. FAOs No. 273 of 2011 and 274 of 2011 are also dismissed. 34. I have gone through the impugned awards. The Tribunal after taking into consideration the claim petitions, pleadings and the evidence on the files, has rightly assessed the compensation, cannot be said to be excessive, in any way, but is just and appropriate. The
Tribunal has given the details how the claimants are entitled to awarded amount. 35. It is apt to reproduce para-20 of the impugned award-II herein:- “20. Hence, as per the details given below, the petitioner is entitled for compensation as under: i) Future loss of income ` 2,26,800/- ii) Attendant Charges ` 10,000/- iii) Treatment charges ` 30,670/- iv) Transportation charges ` 18,200/- v) Pain and sufferings ` 40,000/-
_______________
Total: `.3,25,670/-
________________
The assessment made by the Tribunal is as per the mandate of law laid down by the Apex Court in case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR (SCW) 3120. 37. Having said so, the appeal filed by the claimant, i.e. FAO No. 357 of 2011 is also dismissed. 38.
All these appeals merit to be dismissed, are dismissed. The impugned awards are upheld.
39.
Registry is directed to release the awarded amount in favour of the claimants, strictly as per the terms and conditions contained in the impugned awards. 40. Send down the records after placing copy of the judgment on the record.
September 19, 2014. (Mansoor Ahmad Mir), (hemlata)
Chief Justice