Judgment:
D. Raju, C.J.
1. The above appeal has been filed under Section 173 of the Motor Vehicles Act against the award passed by the Motor Accidents Claims Tribunal (I), Shimla, dated 21.5.1993 in M.A.C. No. 15-S/2 of 1988/87 by the insurance company, whereunder the Tribunal below awarded a compensation of Rs. 1,20,000 to the claimants with a direction to the appellant insurance company to pay with interest at the rate of 12 per cent per annum from the date of claim petition till the date of deposit. The claimants before the Tribunal below were the widow, the minor sons and parents (father and mother) of Harnam Singh who died in an accident while travelling in a truck bearing registration No. PUH 3559 belonging to late Harbans Lal, who was said to have died during the pendency of the petition, his legal representatives coming on record thereafter for continuing the proceedings instituted in the Tribunal below. It appears that the deceased was working as agent with different fruit merchants at Lalroo Mandi and used to arrange for the supply of fruits from the growers and on the day when the accident occurred he appears to have boarded the truck at Chandigarh, the truck having been said to have been hired by fruit merchants of Lalroo Mandi, who deputed the deceased to visit Jubbal and Rohru to arrange for the supply of apples to them.
2. The legal representatives of the deceased owner of the vehicle appear to have taken an objection that as legal representatives they are not in any manner liable and it is only the insurance company, which was to bear the liability, though at the same time they disputed the claim of the rash and negligent driving of the truck by its driver. So far as the appellant insurance company is concerned; it was claimed that the deceased was neither covered by the policy of insurance nor was it required to be covered under the Act as the said person being, according to the insurance company, an unauthorised passenger travelling illegally in the truck.
3. On the above claims and counterclaims, the claim petition came to be tried and on a consideration of oral and documentary evidence on record, as noticed earlier, the Tribunal below had awarded compensation of Rs. 1,20,000 holding the insurance company liable to pay the same with interest. Hence, the above appeal.
4. Mr. Ramakant Sharma, learned counsel appearing for the insurance company submitted that the accident having occurred in the case on hand on 22.9.1986, the claim and rights of parties are covered by the provisions of the Motor Vehicles Act, 1939, and having regard to the decision of their Lordships of the Supreme Court in Mallawwa v. Oriental Insurance Co. Ltd. 1999 ACJ 1 (SC), the appellant insurance company is not liable for the compensation. The learned counsel also relied upon the decision in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC), to contend that in cases of the nature arising out of an accident involving the death of or bodily injury to persons who are gratuitous passengers of a truck governed by the provisions of 1939 Act, the decision in Mallawwa v. Oriental Insurance Co. Ltd. (supra), alone governed.
5. So far as Mr. Shrawan Dogra, learned counsel for the claimants-respondents Nos. 1 to 4 is concerned, it was contended by placing reliance upon the decisions in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC); Sohan La1 Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC) and United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC), that as long as it is not substantiated by the insurance company that the condition of the policy has been violated and that too violated by the insured (the owner of the vehicle) or under his authority, there is no escape from liability for the insurance company and that the stand taken for the appellant insurance company is not tenable. Mr. Mandhotra, learned counsel for the heirs of the owner of the truck while adopting the stand of the learned counsel for the claimants-respondents further contended that the legal representatives of the deceased owner of the truck not having inherited any property, they cannot be held personally liable and that, therefore, the appeal merits dismissal in our hands.
6. We have carefully considered the submissions of the learned counsel appearing on either side. In Mallawwa's case 1999 ACJ 1 (SC), the Supreme Court in unmistakable terms held that so far as the goods vehicle or in other words a vehicle not duly licensed or permitted to carry passengers is concerned, it would not be proper to consider the same to be a passengers' vehicle and it was not required by a policy of insurance envisaged under the Act to cover the risk to the passengers or persons carried in a goods vehicle either along with their goods or paying fare or gratuitously. Consequently, the case in hand should be governed by the ratio of the decision in Mallawwa's case (supra), in favour of the appellant insurance company, but before ultimately coming to the final conclusion, it is to be seen whether the distinction sought to be made by the learned counsel for the respondents, to hold on the basis of the judgments relied upon for the respondents, that the insurance company in this case will be liable to pay the compensation as held by the Tribunal below.
7. The decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), is that of the Apex Court. That was a case wherein the accident took place on 14.11.1964. The truck involved in the accident had come from a different place and unloaded the goods carried by it. The driver had gone for bringing snacks from the opposite shop leaving the engine running and the ignition key was in the ignition lock and not in the cabin in the truck since the truck was at that time in the control of the cleaner with its running engine he started the vehicle resulting in an accident. While repelling the challenge of the insurance company in that case disowning its liability, it has been held that the owner never gave permission to the cleaner to drive the vehicle and as long as it is not substantiated that the breach complained of by the insurer was committed or was on the part of the insured and that it was the insured who was guilty of violating the condition or infringement on the part of the insurer, the insurer cannot escape from the liability or from the obligation to indemnify the insured. In Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC), the Supreme Court was considering the question of the owner of a bus authorising its driver to drive the bus to carry passengers but the driver in his place allowed the cleaner/conductor of the bus, who was also an employee of the owner, to drive the vehicle when the accident took place. Applying as also confirming the view expressed in the decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan (supra), it was held that as long as the insured, the owner of the vehicle, had allowed only a licensed driver to drive the vehicle, he cannot be held to be guilty of violating the condition of the policy merely because the licensed driver permitted a person not duly licensed to drive the vehicle and, that, therefore, the insurance company cannot escape from its liability. Both in the decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan (supra), as also in this case decided by their Lordships of the Apex Court emphasis was made on the concept underlying Section 95 of the 1939 Act in getting the vehicle insured by an insurance company to provide thereby an easy mode of getting compensation by the claimants without leaving them in lurch to pursue their claim against the owner from one forum to another and ultimately to execute the order of the Accidents Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. In United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC), their Lordships of the Supreme Court dealt with a different category of case by applying the principle of law laid down in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan (supra) and Sohan Lal Passi v. P. Sesh Reddy (supra). While distinguishing these two earlier cases, their Lordships of the Apex Court, who decided the case in United India Insurance Co. Ltd. v. Gian Chand (supra), found on facts that the owner of the vehicle committed a breach of the condition of insurance policy which required the owner not to permit the vehicle to be driven by an unlicensed driver and that, therefore, while accepting the factual findings of the Tribunal as also by the High Court in that case about the lapse on the part of the, owner in handing over the vehicle to an unlicensed driver, the insurance company was held exonerated from its liability to meet the claims of the third party who might have suffered on account of vehicular accident caused by such an unlicensed driver.
8. On a consideration of the respective submissions of the learned counsel on either side, we are of the view that the fallacy in the stand and submission of the learned counsel for the respondents lies in treating cases of the category falling under the principle laid down in Mallawwa's case 1999 ACJ 1 (SC) and other line of cases dealing with violation of the condition of the policy resulting in snapping the contract between the insured and the insurer exonerating the insurer from liability, on par or on equal footing whereas, in the line of cases relied upon for the respondents, the basic hypothesis on which the consideration proceed is that but for the violation complained of and substantiated, the claim otherwise is covered under the insurance policy. So far as the cases of the nature falling under the category of principles laid down in Mallawwa's case (supra), are concerned, the policy of insurance itself does not cover such a risk and, therefore, would fall outside the purview of the policy of insurance envisaged and to be taken and covered in respect of a vehicle under the provisions of 1939 Act. In such class or category of cases, to which the principles of Mallawwa's case (supra), applied or are applicable, the question as to the violation of the condition of the insurance policy or the person who was responsible for such violation has no relevance or concern at all, such claims being not one covered under the policy envisaged to be taken under the provisions of the 1939 Act. Consequently, we see no merit whatsoever in the stand taken for the respondents. The claim and contention of the insurance company, therefore, are liable to be upheld in view of the fact that the deceased was travelling in a goods vehicle and he was not shown to be in the employment or service of the owner of the vehicle and, therefore, not expressly expected to be covered under the insurance policy.
9. The appeal of the insurance company is allowed. The amount deposited by the insurance company lying in deposit with accrued interest thereon is ordered to be released in favour of the insurance company since the insurance company has been exonerated from its liability for the payment of compensation. So far as the compensation awarded is concerned, it becomes the liability of the owner or to the extent the legal representatives of the deceased owner of the vehicle inherited the property from the deceased their own. It is not for this court to decide in this case as to whether they have inherited any property and as legal representatives on record their liability cannot be avoided unless in appropriate execution proceedings, it is substantiated by the legal representatives that they did not succeed to or inherit any property, whatsoever, from the deceased owner of the truck, to make them personally liable.
10. So far as the cross-objections filed are concerned, inasmuch as in the appeal filed by the insurance company, the cross-objections were held not to be maintainable and the same are dismissed on this ground alone.