Legal Officer & Authorized ... vs Anjana Shyam &
2022 Latest Caselaw 3671 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

              ON THE 23rd DAY OF MAY, 2022

                        BEFORE
        HON'BLE MS. JUSTICE JYOTSNA REWAL DUA




                                                   .

        FIRST APPEAL FROM ORDER No.245 of 2019

      Between:-





      SHRIRAM GENERAL INSURANCE COMPANY
      SHAMSHERPUR, NEAR Y-POINT,
      PAONTA SAHIB, DISTT. SIRMOUR, HP,
      THROUGH SH. AMANDEEP SHARMA





      LEGAL OFFICER & AUTHORIZED SIGNATORY,
      SCO-178, 1ST FLOOR, SEC.38-C,
      CHANDIGARH
                r                    ......APPELLANT
      (BY SH. VIRENDER SHARMA, ADVOCATE)

      AND

    1. SMT. NIRMALA DEVI
       W/O SH. SUNIL DUTT,


       AGED 33 YRS.
    2. SMT. VIDYA DEVI
       W/O SH. NATHU RAM,




       (MOTHER OF DECEASED)
       AGED 56 YRS.





    3. MASTER KABIR PUNDEER (MINOR)
       S/O SH. SUNIL DUTT,





       AGED ABOUT 10 YRS.
    4. MASTER MANAV PUNDEER (MINOR)
       S/O SH. SUNIL DUTT,
       AGED ABOUT 9 YRS.
       BOTH SONS THROUGH THEIR
       NATURAL GUARDIAN MOTHER
       SMT. NIRMALA DEVI,
       ALL RESIDENTS OF VILLAGE DUGANA,
       SUB-TEHSIL KAMRAOO, TEHSIL PAONTA SAHIB,




                                  ::: Downloaded on - 23/05/2022 20:05:35 :::CIS
                                        2


       DISTT. SIRMOUR, HP
                       .......RESPONDENTS/PETITIONERS
    5. SH. JAI PAL
       S/O SH. LAL SINGH,
       R/O VILL. ASHYARI, PO TIMBI,
       TEHSIL SHILLAI, DISTT. SIRMOUR, H.P.




                                                                   .

    6. SH. ROHIT CHAUHAN
       S/O SH. INDER SINGH,
       R/O MUINAL BAG, SUB-TEHSIL KAMRAOO,





       TEHSIL PAONTA SAHIB, DISTT. SIRMOUR, HP
       (OWNER AS PER AGREEMENT DATED 31-01-2013
       OF BOLERO CAMPER HP-17B-1959)
    7. SH. HIRDA RAM





       S/O SH. LAYAK RAM,
       R/O VILL. DHAL (NADA),
       PO DUGANA, SUB-TEHSIL KAMRAOO,
       TEHSIL PAONTA SAHIB, DISTT. SIRMOUR, HP

       (DRIVER OF BOLERO CAMPER HP-17B-1959)

                                                      ......RESPONDENTS
       (BY SH. VINOD CHAUHAN, ADVOCATE,
       FOR R-1 TO R-4,


       MR.     AVINASH JARYAL,   ADVOCATE    VICE
       MR. SHYAM SINGH CHAUHAN, ADVOCATE, FOR R-5
       TO R-7)




       RESERVED ON                 :          09.05.2022
       PRONOUNCED ON               :          23.05.2022





       Whether approved for reporting? Yes.

               This Appeal coming on for admission this day,





    the Court delivered the following:

                          JUDGMENT

Learned Motor Accident Claims Tribunal

awarded Rs.12,12,400/- to the claimants alongwith 9%

interest per annum from the date of filing of petition till its

deposit. Liability to pay the compensation was fastened on

the appellant, being insurer and indemnifier of respondent

No.5-the registered owner of the vehicle. The insurer has

.

taken exception to the award in the instant appeal. Though

many grounds have been taken in the memo of appeal, but

during hearing, learned counsel confined his submissions

only on following three points for challenging the impugned

award:-

i) Driver of the offending vehicle did not possess a valid

driving license. r

ii) Deceased was a gratuitous passenger in the goods

vehicle.

iii) The compensation has been assessed on the higher

side.

The above points are being separately discussed

hereinafter.

2. Driving License

Learned counsel for the appellant/insurer

argued that driving license of the driver was fake. The

deposition of Aman Deep Sharma (RW-1) proved fakeness of

the driving license. He had stated having checked the

status of the driving license on the website of concerned

Registering and Licensing Authority. The downloaded copy

of the documents Ext. RW1/D and endorsement made

thereon as RW1/E prove the assertion of the appellant that

driving license Ext. R-1 was fake.

.

The plea that driving license of the driver of

offending vehicle was fake is not supported by the evidence.

The onus to prove this issue was on the Insurer/appellant.

Aman Deep Sharma (RW1) as per his statement had only

checked the status of driving license on the website of the

concerned Registering & Licensing Authority. It was for the

insurer to produce evidence from the concerned Authority.

No witness was examined by the Insurer to prove alleged

fakeness of the driving license. Documents downloaded

from the website, i.e. Ext. RW1/D and Ext. RW1/E-the

endorsement thereupon, are not admissible. Merely on the

strength of these downloaded documents, the driving

license, Ext. R-1, cannot be held to be fake. It is also well

settled that fake license in itself is not sufficient to

exonerate the insurance company unless it is proved on the

record that the owner of the vehicle knew that the license

was fake and despite this knowledge, he permitted the

driver to drive the vehicle. Such evidence is not available in

the present case. Therefore, plea of the insurer is rejected.

Point is answered accordingly.

3. Gratuitous passenger

3(a). Learned counsel for the appellant next

contended that the deceased was travelling as a gratuitous

.

passenger in a goods vehicle. He was travelling

unauthorizedly in violation of terms of Insurance Policy.

Appellant-insurance company is, therefore, not liable to pay

any compensation to the claimants.

3(b). Section 147 of the Motor Vehicles Act, 1988

falling under Chapter XI 'Insurance of Motor Vehicles

Against Third Party Risks' lays down requirements of

policies and limits of liability. Provisions of Section 147(1)(a)

and (b) read as under:-

"147. Requirement 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; 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 motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place.

Explanation.- For the removal of doubts, it is hereby clarified that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that the person who is dead or injured or the property which is damaged was not in a public

place at the time of the accident, if the act or omission which led to the accident occurred in a public place..................."

3(c). 'Whether the petitioner was an unauthorized

passenger on the vehicle' was one of the issues framed in

.

the claim petition. Instant was a case where deceased was

travelling in a goods vehicle (Pick-up Mahindra & Mahindra

Camper Bolero). The Registration Certificate (Ext. R2) of

this vehicle delineated sitting capacity of the vehicle as

five (5). Learned Motor Accident Claims Tribunal observed

that Insurance Policy (Ext. R3) had covered the risk of four

plus one passenger. Taking note of the Registration

Certificate of the vehicle and the Insurance Policy, learned

Tribunal held that four passengers could travel in the

vehicle apart from its driver. Learned Tribunal held that the

capacity in which the deceased travelled in the vehicle

became immaterial as the vehicle in question could carry

four persons apart from its driver and the risk of four

passengers apart from its driver was covered under the

insurance policy. Learned Tribunal, thus, declined to go

into the question whether deceased was travelling in the

offending vehicle as a gratuitous passenger and its effect on

the liability of the insurer.

Merely for the reason that permissible sitting

capacity of the vehicle was not exhausted would not mean

that question raised by the insurer did not need to be

examined, more so in the facts of the case. The Registration

Certificate (Ext.R2) did say that authorized capacity of total

.

travellers in the vehicle was five. The insurance policy (Ext.

R3) covered the risk of 4+1 persons including the driver.

But the terms and conditions of the insurance policy clearly

put in place following limitations as to use of motor

vehicle:-

"Use only for carriage of goods within the meaning of the Motor Vehicles Act. The Policy does not cover: 1) Use for organized racing, pace-making, reliability trial or speed testing.2) Use whilst drawing a

trailer except the towing (other than for reward) of anyone disabled mechanically propelled vehicle. 3) Use

for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act 1923."

Insurance is a contract between the owner/

insured and the insurer. Parties are governed by the terms

of the contract. The Motor Vehicles Act has made insurance

obligatory in public interest and by way of social security, it

has also provided that the insurer would be obliged to fulfil

his obligations as imposed by the contract and as overseen

by the statute notwithstanding any claim he may have

against the other contracting party, the owner and meet the

claim of third parties subject to the exceptions provided in

Section 149(2) of the Act. But that does not mean that an

insurer is bound to pay amount outside the contract of

insurance itself or in respect of persons not covered by the

.

contract at all [Re (2007) 7 SCC 445, titled National

Insurance Company Limited Vs. Anjana Shyam &

others]. In the facts of the case in hand, the insurance

policy did not permit carrying of passengers in the vehicle.

In terms of the Insurance Policy, the risk of 4+1 persons

was covered provided that they were travelling as employees

falling within the purview of Workmen's Compensation Act

and their number was within the permissible limit set forth

in the registration certificate of the vehicle. It is an admitted

position that the deceased was travelling in the goods

vehicle. The claimants have not pleaded that the deceased

was travelling in the vehicle as an owner of goods or that he

was carrying some goods in the vehicle. It is not even the

case of the claimants that deceased was an employee of the

owner of the vehicle and was travelling in the vehicle in that

capacity. In its reply, the insurer took up the defence of

deceased being a gratuitous and unauthorized passenger in

the goods vehicle. The claimants had neither pleaded that

the deceased was travelling in the vehicle as an owner of

the goods or in the capacity of an employee of the owner of

the vehicle, nor any evidence was led by them in this

regard. Whereas, in support of its plea of deceased being a

gratuitous & unauthorized passenger, the insurer also

.

produced Ext. RW1/C-a statement of Nathu Ram, father of

the deceased, to the effect that his son had taken a lift in

the vehicle for going from village Kafota to village Kando.

This was the plea taken in the claim petition by the

claimants themselves. In their claim petition, the claimants

had specifically pleaded that deceased was an employee of

one Khajan Singh r/o Kamraoo and worked in his mines.

Said Khajan Singh appeared in the witness box as PW4 and

stated that deceased was his employee. The pleadings and

evidence on record thus clearly pointed out that the

deceased was neither an employee of the owner of the goods

vehicle in question nor travelled in the goods vehicle as

owner of the goods. He had merely taken a lift in the goods

vehicle for reaching his destination. Hon'ble Apex Court in

(2013) 2 SCC 41, titled Manager National Insurance

Company Vs. Saju P. Paul, held that since the victim was

travelling in the vehicle as a gratuitous passenger,

therefore, the insurer was not liable. In the facts of the

present case, there is no escape from the conclusion that

deceased was travelling as a gratuitous passenger in the

goods vehicle in violation of terms of its insurance policy.

Therefore, there is force in the contention of the

appellant/insurer that it had discharged its onus on the

.

issue of breach of terms and conditions of the insurance

policy with oral as well as documentary evidence. The

award passed by the learned Tribunal cannot be upheld on

this issue.

4. Assessment of Compensation

Learned counsel for the appellant/insurer

contended that the assessment of compensation had been

made on the higher side by the learned Tribunal. It was

argued that determination of income of the deceased at

Rs.6000/- per month was on the higher side. This

assessment was contrary to the permissible wages of

Rs.120/- per day under the Minimum Wages Act prevailing

at the time of accident in the year 2013.

The contention cannot be accepted. Hon'ble

Apex Court in (2022) 1 SCC 198, titled Chandra alias

Chandaram and another Vs. Mukesh Kumar Yadav and

others, held that 'in absence of salary certificate, the

minimum wage notification can be a yardstick, but at the

same time, cannot be an absolute one to fix the income of

the deceased. In absence of documentary evidence on

record, some amount of guesswork is required to be done,

but at the same time, the guesswork for assessing the

income of the deceased should not be totally detached from

.

reality. Merely because claimants were unable to produce

documentary evidence to show the monthly income of the

deceased, same does not justify adoption of lowest tier of

minimum wage while computing the income. There is no

reason to discard the oral evidence of the wife of the

deceased deposing about the income of the deceased.' In

the instance case, wife of the deceased had stated that her

husband was earning Rs.12000/- per month by working as

a labourer under the employment of Khazan Singh. The

claimants did not examine co-labourers. Khazan Singh

appeared as PW4 and deposed that deceased was working

under him and being paid Rs.12000/- per month. Despite

this, learned Tribunal assessed the income of the deceased

at Rs.6000/- on the basis of assumption of monthly income

of the deceased in the year 2014 under the Minimum

Wages Act. The accident had occurred on 5.2.2013. Taking

into consideration the judgment passed by the Hon'ble

Apex Court, I do not find that assessment of Rs.6000/- as

monthly income of the deceased was on the higher side.

Point is answered accordingly.

5. In view of above discussions, the pleas of

appellant/insurer on the point of driving license of the

driver of the offending vehicle being fake and on the point of

.

income of the deceased having been assessed on the higher

side by the Learned Motor Accident Claims Tribunal, are

rejected having no force. For the reasons discussed above,

it is, however, held that the deceased was travelling in the

goods vehicle as a gratuitous passenger and in violation of

terms and conditions of the Insurance Policy. The

appellant-Insurance Company is not liable to suffer the

liability on the strength of breach of insurance policy.

Having held that deceased was travelling in the vehicle in

breach of the conditions of insurance policy, it will be

appropriate at this stage to notice (2017) 4 SCC 796, titled

Manuara Khatun vs. Rajesh Kr. Singh, where the

deceased was travelling as a gratuitous passenger. The

Apex Court held that even though the insurance company

was not liable to pay the compensation in view of breach of

the policy, yet considering the benevolent object of the Act,

the insurer was directed to pay compensation to the

claimants in the first instance with a right to recover it from

the owner of the motor vehicle in question. (2019) 10 Scale

668, titled Anu Bhanvara vs. Iffco Tokio General

Insurance Company Limited, was a case where gratuitous

passengers were injured in a motor accident case. Hon'ble

Supreme Court invoked doctrine of 'pay and recover' and

.

held that insurance company shall be liable to pay the

awarded compensation to the claimants and entitled to

recover the same from the driver and owner of the vehicle.

The awarded amount has been deposited by the appellant-

Insurance Company. Even though the Insurance Company

is exonerated, yet relying upon these pronouncements, in

the interest of justice, the appellant/insurer is directed to

pay the compensation amount as assessed in the impugned

award dated 22.11.2018 passed by the Learned Motor

Accident Claims Tribunal-II, Sirmour District at Nahan in

MAC Petition No.62-N/2 of 2013 to the claimants/

respondents No.1 to 4 and to recover the same from the

registered owner of the vehicle, i.e. respondent No.5-Sh. Jai

Pal.

The appeal is accordingly allowed and disposed

of in the above terms alongwith all pending application(s), if

any.

                                              Jyotsna Rewal Dua
    May 23, 2022                                    Judge
           Mukesh