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Judgment
Justice Deepak Gupta, J.—By means of this judgment, the appeal filed by the Insurance Company and the cross-objections filed by the respondent No. 3 are being disposed of. The Insurance Company, in its appeal, submits that as per the law laid down by the Apex Court, the principle of pay and recover, whereby the Insurance Company is directed to pay the amount and recover it from the insured, is not applicable in case where a gratuitous passenger is carried in a vehicle.
The grievance of the owner is that the learned MACT wrongly held that the deceased was a gratuitous passenger.
Briefly stated, the facts of the case are that the claimants are the parents of deceased Narain Dass, who was working as a teacher at Darcha in District Lahaul and Spiti. He was admittedly travelling in truck No. HP-14-7073, which met with an accident on 11th July, 2003 and he died as a result of the accident. A claim petition was filed stating that the deceased was travelling in the vehicle as owner of goods and he was carrying one sack of potatoes and one sack of peas in the said vehicle.
The fact that the accident took place and that the deceased died in the accident is not denied. The main defence of the Insurance Company was that the deceased was travelling in the vehicle as a gratuitous passenger and not as owner of the goods. Admittedly, the deceased was a teacher and neither an agriculturist nor a dealer or a person engaged in the purchase and sale of vegetables. Even if the case is accepted at it''s best, he was travelling to home on leave and, therefore, had bought a sack of potatoes and a sack of peas. The vehicle in question is a truck and nobody hires a truck to carry one bag of peas and one bag of potatoes. The claimants have examined one Roshan Lal as PW-4, who is an eye witness to the accident as he was travelling in some other vehicle. Though, he has talked about the accident but he has stated nothing to the effect that there were any peas or potatoes being carried in the vehicle in question.
The respondents examined Mr. Lawang Both as RW-5, who is the Managing Director of the Lahaul Potato Growers Society and this gentleman, in his statement, has clearly stated that in the month of July, peas and potatoes are not ready and they ripen only after the month of September. The accident took place in July and, therefore, the story that peas and potatoes were being carried appears to be false and was rightly disbelieved by the learned MACT.
This Court has discussed the issue of pay and recover in detail in Oriental Insurance Company versus Neelam Kumari and others, Latest HLJ 2011 (HP) 842, and held as follows:
"14. The next question which arises is whether the Insurance Company can be directed to satisfy the award and be directed to recover the amount from the insured?
It may be mentioned that this Court in National Insurance Company v. Maghi Ram and others Latest HLJ 2009 (HP) 532, following the decision of the Apex Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, had directed that the Insurance Company should satisfy the award and recover the amount from the Insurer. The Insurance Company challenged the judgment of this Court before the Apex Court. This direction of this Court was set aside and the Apex Court gave the following directions:-
"14. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 10694 is allowed and Civil Appeal arising out of SLP (C) No. 9910 of 2006 is dismissed. If the amount deposited by the insurance company has since been withdrawn by the first respondent, it would be open to the insurance company to recover the same in the manner specified by the High Court. But if the same has not been withdrawn the deposited amount may be refunded to the insurance company and the proceedings for realization of the amount may be initiated against the owner of the vehicle. In the facts and circumstances of the case, however, there shall be no order as to costs."
Reliance on behalf of the claimant has also been placed on the judgment of the apex Court in Deddappa and Others Vs. The Branch Manager, National Insurance Co. Ltd., , wherein after holding that the Insurance Company was not liable, the Court directed the Insurance Company to deposit the amount. In my view this judgment cannot apply since in this case, the apex Court exercised its extra-ordinary jurisdiction under Article 142 of the Constitution to give these directions. This Court does not have any such jurisdiction. It would, however, be relevant to refer to another later judgment of the apex Court in Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, wherein the apex Court after holding that the Insurance Company is not liable directed it to satisfy the award. Para 19 of the judgment reads as follows:-
"19. In the result, the appeal is allowed to the limited extent and it is directed that the appellant- insurance company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz. respondent No. 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, and Deddappa and Others Vs. The Branch Manager, National Insurance Co. Ltd., "
The Apex Court in United India Insurance Co. Ltd. Vs. Suresh K.K. and Another, , after holding that the Insurance Company was not liable, gave the following directions:-
"16. Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realize the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice.
We are passing this order also in view of the fact that the appellant has already deposited the amount pursuant to a direction issued by this Court dated 13.11.06."
On the basis of the aforesaid judgments, it has been urged that this Court should also give similar directions to the Insurance Company.
As noted above, in Deddappa''s case (supra), the Apex Court gave the directions in exercise of the jurisdiction vested in it under Article 142 of the Constitution. In Zaharulnisha''s case (supra), the Apex Court specifically followed the law laid down in Deddappa''s case. Therefore, it can be said that in Zaharulnisha''s case also, the orders were passed by the apex Court in exercise of jurisdiction vested in it by Article 142 of the Constitution of India. In Suresh''s case (supra), though the apex Court has not specifically referred to Article 142, it is apparent that the directions have been given in the facts peculiar to that case.
On the other hand, in Kaushalya Devi''s case (supra),the apex Court set aside the directions given by this Court directing the Insurance Company to deposit the amount. It specifically held that if the amount had not been withdrawn by the claimants, it would be refunded to the Company and the claimant would recover the amount from the owner of the vehicle. This is the latest judgment cited before me and I am bound by the same.
In view of the above discussion, I am of the considered opinion that only the owner can be held liable to pay the award amount and this Court has no power to direct the Insurance Company to satisfy the award. Consequently, I am of the considered view that the award of the learned Tribunal in so far as it holds the Insurance Company liable to pay the compensation has to be set-aside."
In view of the law already laid down by this Court, the Insurance Company could not have been held liable to pay the compensation. In view of the above discussion, the appeal is allowed and the award of the learned Tribunal is modified to the limited extent that the direction given to the Insurance Company to pay the amount is set aside. The claimants shall be entitled to recover the entire amount only from the owner and driver of the vehicle in question. The cross-objections filed by the owner are dismissed. The amount deposited by the Insurance Company shall be refunded to the Insurance Company by remitting the same to its bank account, details whereof are to be given within two weeks from today.