Himachal Pradesh High Court
Icici Lombard General Insurance Co. Ltd vs Tilak Raj & Others & Others on 25 November, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO Nos. 4, 6 & 7 of 2016
Reserved on: 17.11.2022
.
Date of decision : 25.11.2022.
1. 4 of 2016
ICICI Lombard General Insurance Co. Ltd.
...Appellant
Versus
Tilak Raj & others & others ...Respondents
2. FAO No. 6 of 2016
ICICI Lombard General Insurance Co. Ltd.
r ...Appellant
Versus
Gandhi & others ...Respondents
3. FAO No. 7 of 2016
ICICI Lombard General Insurance Co. Ltd.
...Appellant
Versus
Rano Devi & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Jagdish Thakur, Advocate, for
the appellant in all the appeals.
1
Whether reporters of Local Papers may be allowed to see the
judgment?
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-2-
For the respondent : Mr. Vinod Thakur, Advocate for
respondents No. 1 to 4 in FAO No.
4 of 2016, for respondents No. 1 to
3 in FAO No. 6 of 2016 and for
.
respondents No. 1 to 5 in FAO No.
7 of 2016.
Mr. Vijay Chaudhary, Advocate, for
respondents No. 5 in FAO No. 4 of
2016, for respondent No.4 in FAO
No. 6 of 2016 and for respondent
No.6 in FAO No. 7 of 2016.
Mr. Prashant Chaudhary,
Advocate, for respondent No.6 in
FAO No. 4 of 2016, for respondent
No.5 in FAO No. 6 of 2016 and for
r respondent No. 7 in FAO No. 7 of
2016.
Satyen Vaidya, Judge:
All these appeals are being decided by a common judgment, as the facts involved therein germinate from the occurrence of same accident involving motor vehicle and thus involving common question of facts and law.
2. In all these appeals, insurer/appellant has assailed the awards passed by learned Motor Accident Claims Tribunal (for short "the Tribunal") on the grounds that the occupants of the vehicle, on account of whose death, compensation has been awarded, were gratuitous passengers. The specific contention of insurer is that the vehicle involved in the accident was a "Goods Carriage Vehicle" and was not permitted to carry ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -3- passengers, save and except to the extent as permissible under Section 147 of the Motor Vehicles Act (for short "the Act"). As .
per appellant/insurer, the claimants had failed to prove that the deceased persons were travelling in the vehicle as owners of goods and in alternative, it is submitted that even said plea was not available to the claimants, as the vehicle in question permitted sitting capacity of only two persons including the driver and the policy of insurance has to be read in such context only.
3. In all these appeals, the insurer/appellant has filed applications under Order 41 Rule 27 read with Section 151 CPC for production of additional evidence, whereby a copy of registration certificate of the offending vehicle and also of insurance policy purchased by insured have been sought to be placed on record. In FAO No. 4 of 2016, the application bears CMP No. 238 of 2016, in FAO No. 6 of 2016, such application bears CMP No. 241 of 2016 and in FAO No. 7 of 2016, it bears CMP No. 243 of 2016. These applications deserve to be allowed, as all the parties have relied upon the policy of insurance. Even otherwise, the documents sought to be placed on record, as noticed above, are found necessary for complete and effective adjudication of the issues involved in the cases.
::: Downloaded on - 25/11/2022 20:32:50 :::CIS -4-Accordingly, all the applications bearing CMP Nos. 238, 241 and 243, filed in FAO Nos. 4, 6 and 7 respectively are allowed .
and the copies of registration certificate as well as insurance policy are taken on record.
4. Brief facts, commonly involved and necessary for adjudication of all these appeals are that on 2.6.2013 at about 12.10 PM vehicle bearing registration No. HP-73-2802, "Bolero Camper", manufactured by Mahindra & Mahindra, met with an accident, at place Bhalog Dhar in District Chamba.
Admittedly, the aforesaid vehicle was a Goods Carriage Vehicle.
The registration certificate of the vehicle placed on record reveals that it had sitting capacity for two persons including driver. At the time of accident, the vehicle was being driven by respondent Jagdish @ Jaggu.
5. Four persons namely (1) Smt. Rekha Devi wife of Sh.
Tilak Raj, (2) Smt. Rekha wife of Gandhi, (3) Shri Virender son of Sh. Bhimo and (4) PW-2 Shri Sunil Kumar were traveling in the offending vehicle at the time of accident and except for Shri Sunil Kumar all of them had died as a result of injuries suffered by them.
6. The legal heirs/representatives of all the above mentioned deceased persons filed separate claim petitions ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -5- under Section 166 of the Act. The petition for compensation on account of death of Smt. Rekha Devi wife of Sh. Tilak Raj was .
registered as MAC Petition No. 518 of 2013, the petition for compensation on account of death of Smt. Rekha wife of Sh.
Gandhi was registered as MAC Petition No. 516 of 2013 and petition for compensation on account of death of Sh. Virender son of Bhimo was registered as MAC Petition No. 514 of 2013.
7. It was averred in all these petitions that on the fateful day, "Jatar" (religious ceremony) was organized by Smt. Rekha Devi wife of Sh. Gandhi at place known as "Kangar". All the deceased persons were occupying the vehicle as owners of goods, as they were carrying different articles for the "Jatar Ceremony". In all the petitions, the cause of accident was alleged as rash and negligent driving of the driver. The insurer, owner and driver filed their separate replies. It was pleaded on behalf of the owner that the deceased persons were travelling in the vehicle as owners of goods and the accident had taken place due to sudden mechanical defect. The driver also raised the same defence with respect to cause of accident. The insurer raised various objections including that the deceased persons were travelling as gratuitous passengers. It was further pleaded that at the time of accident, the vehicle was carrying ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -6- about 30 persons as gratuitous passengers, as was also evident from the copy of FIR and the accident had taken place due to .
overloading of the vehicle.
8. The issues framed in MAC Petition No. 518 of 2013 are being reproduced herein as all other cases also involved the similar/identical issues. The issues framed in aforesaid cases are as under:-
"i) Whether on 2.6.2013, at place Bhalog Dhar, r Tehsil Bhattiyat, District Chamba deceased Rekha wife of Tilak Raj has died in an accident due to the rash and negligent driving of vehicle No. HP 73-2802 by its driver i.e. respondent No.3 as alleged? OPP
ii) If issue No.1 is proved in the affirmative, as to what amount of compensation, the petitioners and proforma respondent No.4 are entitled to and from whom? OPP
iii) Whether the petition is not maintainable in the present form? OPRs.
iv) Whether the driver of the vehicle in question was not holding a valid and effective driving license at the time of accident as alleged? OPR1.
v) Whether the vehicle in question was being driven in contravention of the terms and conditions of the Insurance Policy? OPR1.::: Downloaded on - 25/11/2022 20:32:50 :::CIS -7-
vi) Whether the deceased was gratuitous passenger? OPR1
vii) Relief."
.
9. Learned Tribunal answered issues No. 1 and 2 in affirmative and all other issues in negative and thereby allowed all the claim petitions. In MAC Petition Nos. 516 and 518, a sum of Rs. 6,16,000/- each was awarded and in MAC Petition No. 514 of 2016, a sum of Rs. 4,62,000/- was awarded. All the deceased persons were held to be travelling in the vehicle as owners of goods.
10. I have heard learned counsel for the parties and have also gone through the record carefully.
11. It is not in dispute that the vehicle No. HP-73-2802, "Bolero Camper" was a Goods Carriage Vehicle. The question arises whether all the deceased persons were travelling in the vehicle as owners of goods and if proved to be so, was the insurer liable to indemnify the insured in respect of compensation payable to all the claimants.
12. Section 147 of the Act reads as under:-
"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--::: Downloaded on - 25/11/2022 20:32:50 :::CIS -8-
(a) is issued by a person who is an
authorised insurer; and
(b) insures 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 [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) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death,
arising out of and in the course of his
employment, of the employee of a person
insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -9-
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or .
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability."
A three Judges Bench of Hon'ble Supreme Court, in New India Assurance Company Limited vs. Asha Rani, reported in 2003 (2) SCC 223, has held that meaning of the words "any person" in Section 147 of the Act would relate only to a third party and thus, the Act does not enjoin any statutory liability on the owner of a vehicle to keep his vehicle insured for any passenger travelling in a goods vehicle. In absence of any contract to the contrary, the insurer would not be liable to indemnify the insured for any compensation payable in respect of death or bodily injury to the passenger travelling in a goods vehicle. The effect of the 1994 Amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1 wherein Supreme Court following Asha Rani opined that the words "injury to any person" would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma (2005) 12 SCC 243 wherein upon taking into ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -10- consideration a large number of decisions, the said view was reiterated.
.
13. The only exception is that the statutory liability of insurer under Section 147, covers the owner of the goods or his authorized representative, carried in the vehicle. The goods carried in a Goods Carriage Vehicle will necessarily mean the hiring of such vehicle.
14. In all the instant cases, the learned Tribunal has held the deceased persons to be the owners of the goods. The evidence before learned Tribunal was the statements of claimants and another witness namely Sh. Sunil Kumar, examined as PW-2 on behalf of the claimants. Respondents No. 1 and 2 examined the driver of the vehicle as their witness. The insurer examined three witnesses. RWs-2 Dr. Rajiv Kumar and RW-3 Dr. Sanjay Gupta proved issuance of number of MLCs by them, whereas RW-4 Sh. Sangat Ram was examined to prove the record of criminal proceedings before criminal Court having arisen from the accident in question. The claimants had stated that the deceased persons had hired the vehicle for carrying rice, goods and other articles for "Jatar". Admittedly, the claimants were not present on the spot at the time of accident. In his cross-
examination PW-1 in MAC Petition No. 516 of 2013 ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -11- admitted that in the vehicle Rekha Devi wife of Sh. Tilak Raj, Rekha (his wife) and two other persons were traveling. Witness .
Sh. Sunil Kumar also deposed that all the deceased persons had hired the vehicle for carrying their articles. This witness further admitted that he was also sitting in the ill-fated vehicle at the time of accident. The driver of the vehicle deposed that all the deceased had hired the vehicle. He admitted that a FIR was registered against him in respect of the accident in question. RW-4 proved the final report under Section 173 Cr.P.C., submitted by the police before the criminal Court, after investigation of FIR No. 43 of 2013. He also produced on record the list of witnesses submitted along with said report as Ext.
PW-4/B.
15. The Insurer tried to prove from statements of RWs 2 to 4 that the vehicle in question was occupying about 30 persons at the time of accident. Noticeably, the MLCs prepared by RWs 2 and 3 were not placed and proved on record. From the oral statements of these witnesses, the MLCs stated to have been issued by them could not be linked to the accident in question. Similarly, the report under Section 173 Cr.P.C.
presented by State after investigation of FIR No. 43 of 2013 and list of witnesses annexed therewith were not the substantive ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -12- pieces of evidence. However, it was proved on record that at least four persons were occupants of the vehicle at the time of .
accident, besides the driver. Three were the deceased persons and fourth was PW-2 Sh. Sunil Kumar.
16. The certificate of registration of the vehicle in question clearly shows that it had sitting capacity of two persons only including the driver, meaning thereby that the cabin was meant for sitting of one person other than the driver.
It has been proved on record that four persons were in the vehicle. The copy of policy of insurance placed on record also does not show that it had provided coverage to person more than the authorized sitting capacity of the vehicle. The vehicle details provided in the policy also mention carrying capacity as of two persons. The premium had been paid for own damage and basic third party liability. Additional Rs. 50/- was paid for coverage to paid driver and Rs. 100/- was paid for coverage of personal accident of owner-driver to the extent of Rs. Two lakhs. Thus, the insurer would be liable to indemnify the insured of the vehicle involved in these cases to the extent of third-party liabilities, paid driver and the owner and driver to the extent, as noticed above. It is only by virtue of the amended provisions of Section 147 that the owner of the goods is ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -13- provided coverage under the statutory insurance policy and can it be taken to mean that under the shadow of such statutory .
provision, insurer will be liable to indemnify the insured even for the claims of the persons, who were occupying the vehicle beyond its sitting capacity. In my considered view the answer has to be in negative. The coverage provided to passengers as owner of goods under Section 147 of the Act has to be read in context of the sitting capacity of the vehicle. A vehicle permitting the seating of only one person besides driver cannot lawfully be allowed to carry more than one person. In fact, there will not be space for accommodating more persons than prescribed. An act which otherwise is unlawful cannot be legitimized under the garb of statutory provision of section 147 of the Act without considering such provisions in its real perspective. The coverage to the owner of the goods in case of Goods Carriage Vehicle, thus, cannot be extended to more than the persons authorized to sit in the vehicle.
17. Reference can be gainfully made to the judgment passed by this Court in Oriental Insurance Co. vs. Amri Devi in FAO (MVA) No. 402 of 2010, decided on 7.7.2016, wherein after placing reliance upon the judgment of Hon'ble Supreme Court in National Insurance Company Ltd. vs. Cholleti ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -14- Bharatma, reported in 2008, ACJ, 268, it was held that the deceased who were not proved to have been travelling in the .
cabin of the vehicle, they would not be entitled to compensation.
18. Reverting to the facts of the case, it cannot be said that four persons could be accommodated inside the cabin of the vehicle, which was meant to seat only one person.
19. Learned counsel for the claimants contended that in case the deceased were held as gratuitous passengers, insurance company still should be directed to pay them the compensation amount in the first instance and to recover it from the insured later. The contention so raised merits rejection for the reason; firstly that there is no provision in the Act which allows the insurer to pay in the first instance and recover later from the insured where the claim relates to gratuitous passenger in a Goods Carriage Vehicle and secondly in view of the law settled in New India Insurance Company Ltd. vs. Asha Rani, 2003 ACJ (1), National Insurance Co.
vs. Baljeet Kaur, 2004 ACJ 428. Both these judgments by three judges benches expounded the law with respect to liability of insurer to indemnify the insured in respect of claims arising out of death or bodily injury to a gratuitous passenger ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -15- in a Goods carriage Vehicle and held in favour of insurer.
Hon'ble Supreme Court in National Insurance Company ltd.
.
Vs Parvathneni in (2018) 9 SCC 657 has kept the question of law open on the issue whether the Supreme Court in exercise of powers under Article 142 of the Constitution can direct the insurer to pay and recover, where the liability otherwise does not arise in case of gratuitous passenger. This court while expressing above view has drawn support from judgment passed by a Division Bench of High Court of Judicature at Madras in Bharti AXA General Insurance Co. Ltd. Vs Aandi reported in 2019 ACJ 1975.20.
20. In view of the above discussion, it is held that only one of the deceased at the most can be held to have coverage as owner of goods. Accordingly Rekha wife of Sh. Gandhi Ram can be held to be the occupant of the vehicle as owner of goods and hirer of vehicle on the basis of material on record. The FIR was recorded on the basis of version provided by Sh. Sunil Kumar son of Sh. Jodha Singh, who was examined as PW-2 in all the petitions. In the cross-examination, this witness had feigned ignorance regarding lodging of FIR by him. In the FIR his version was that on 2.6.2013, the "Jatar" was being organized by his Aunt Rekha wife of Gandhi Ram and all their relatives ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -16- were to participate. Three vehicles including one Alto Car and two Jeeps including the Pickup No. HP-73-2802 were used for .
the purpose and PW-2 was also one of the occupants of the vehicle No. HP-73-2802. Noticeably, the claimants have relied upon the contents of FIR by tendering the same on record as Ext. P-2. Though, an FIR is not substantive piece of evidence as to its contents. However, the party placing reliance on it cannot subsequently turn around and say that contents thereof were not correct. In 2009 ACJ 925, National Insurance Co. Ltd. Vs Rattani and others, the Hon'ble Supreme Court has observed as under:
"7. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the same.
13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -17- proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
.
As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose."
Similarly, in Oriental Insurance Company vs. Premlata Shukla & others, reported in 2007 (13) SCC 476, the Hon'ble Supreme Court has held as under:
"12. In Narbada Devi (supra) whereupon reliance has been placed, this Court held that contents of a document are not automatically proved only because the same is marked as an Exhibit. There is no dispute with regard to the said legal proposition.
13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -18- Exhibit as both the parties intended to rely upon them.
14. Once a part of it is relied upon by both the .
parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;
"8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram ::: Downloaded on - 25/11/2022 20:32:50 :::CIS -19- Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge, while hearing the appeal could have .
commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate."::: Downloaded on - 25/11/2022 20:32:50 :::CIS -20-
21. Thus, from the facts inferable from material on record it would be the organizer of "Jatar" who would have hired the .
vehicle and would have carried her goods necessary for such purpose.
22. In result, the FAO No. 6 of 2016 is dismissed. FAO Nos. 4 and 7 of 2016 are allowed to the extent that the insurer/appellant is absolved from indemnifying the insured to pay compensation arising out of death of Rekha Devi wife of Sh.
Tilak Raj and Virender son of Sh. Bhimo.
23. All the appeals are disposed of accordingly. All pending miscellaneous application(s), if any, also stand disposed of. Records be sent back forthwith.
(Satyen Vaidya)
25th November, 2022 Judge
(kck)
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