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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  1466 - 1500  OF 2013 (SPECIAL LEAVE PETITION(CIVIL)NOS.15775-15809 OF 2005)  

NATIONAL INSURANCE CO. LTD. APPELLANT

                VERSUS

REENA DEVI & ORS.                                RESPONDENTS

WITH C.A.NO. 1501  OF 2013 @ S.L.P.(C)NO.23352/2005

AND WITH C.A.NO. 1502   OF 2013 @ 24067/2005

O R D E R

1. Leave granted.

2. These appeals are directed against the common  judgment  

and  order  passed  by  the  High  Court  of  Judicature  of   Himachal  

Pradesh in FAO(MVA) Nos, 404, 405, 406, 407, 408, 409, 410, 411,  

412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 425, of 2001 and  

140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152,  

153, 154 of 2002 and 453 of 2003, dated 10.9.04. By the impugned  

judgment and order, the high court has directed the petitioner to  

pay compensation to the respondents herein who were injured and also  

to the legal representatives of the deceased passengers.

3. The facts in brief are:- The incident occurred on 18.7.1999 when  

the  bus  belonging  to  Sh.Jai  Prakash,  the  owner  of  the  vehicle,  

started its journey from shillai for Bali Koti. En route to Bali  

Koti, the said bus while negotiating the curve went out of the road  

and  rolled  down  in  the  khud.  Thereafter,  the  bus  trampled  down

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several persons on the road as well as on the pathway beneath the  

road thereby taking lives of several persons while others received  

multiple injuries.

4.   We  have  heard  Shri  Vishnu  Mehra,  learned  counsel  for  the  

Insurance Company and Shri Kartar Singh, learned counsel for the  

respondent(s).   

5. Shri Mehra, learned counsel, would submit that since the  

bus  in  question  was  carrying  more  passengers  than  the  permitted  

capacity, the Insurance Company is not liable to pay to the persons  

who expired in the accident and also to those persons who sustained  

injuries. In support of that submission, the learned counsel invites  

our attention to the observations made by this Court in the case of  

National Insurance Co. Ltd. Vs.  Anjana Shyam & Ors. reported in  

2007(7) SCC 445.

6. In reply to the submissions so made by Shri Mehra, the  

learned counsel appearing for the respondent(s) would bring to our  

notice,  the  issues  raised  by  the  Motor  Accident  Claims  Tribunal  

('the Tribunal' for short) and the conclusions reached thereon in  

particular, to the fourth issue that was raised and considered by  

the Tribunal.

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7. The Tribunal, while coming to the conclusion that the bus  

in question was not over-loaded by more than its permitted capacity,  

has observed at paragraphs 13,14 and 15, as under :

“13.  Shri  A.S.Shah,  Advocate,  the  learned  counsel for the owner and driver of the bus has argued  that in all 51 claim petitions have been filed suggesting  that the total number of injured and dead persons is not  more than 51.  He has further argued that the number of  injured  and  the  dead  persons  is  also  inclusive  of  the  persons, who were not in the vehicle because it is in the  reply of the Insurance Co. in para-22 or para-24 of the  different petitions that the deceased was not travelling  in  the  ill-fated  bus.  These  averments  in  the  reply  suggests  that  some  of  the  persons  suffered  injuries  because at the relevant time, they were not in the bus.  Moreover, as per para No.1 of the reply of the Insurance  Co., the information of over-loading was received by th  Insurance Co. after going through the newspaper or the  inquiry report of the SDM, which are not admissible in  evidence.  The report of the SDM cannot be treated as  reliable evidence as it is based on hearsay evidence and  conducted at the back of the petitioners.  According to  the report, about 18 persons were examined.  The Insurance  Co. should have examined some of these persons in evidence  to prove that actually there was over-loading in the bus.

14. The petitioners examined many witnesses of  whom PW 4 Jeet Singh and PW 5 Hari Singh are the persons  who witnessed the accident in question.  Their statements  do not suggest that there was any over-loading in the bus.  The  cross-examination  of  PW  5  Hari  Singh  made  by  respondent no.1 and 2 further proves that few persons, who  were walking on the road below the road where the bus fell  down were also run over by the bus when it fell down. He  has denied that more than 100 persons were there in the  ill-fated bus.

15.  The  above  discussion  of  evidence  suggests  that it cannot be said that at the relevant time there was  over-loading in the bus. Moreover only because o over- loading, it cannot be said that there is any breach of  conditions of the permit.  A reference in this regard may  be made to the law laid down by the Hon'ble Supreme Court  in  case  State  of  Maharashtra  and  Others Vs.  Nanded- Parbhani Z.L.B.M.V.Operator Sangh, reported in (200-2) 125  Punjab Law Reporter 558, wherein at page 561 in para-8  following proposition of law has been laid down :-

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“...But  carrying  passengers  more  than  the  number of specified in the permit will not be a  violation of the purpose for which the permit is  granted.  If the legislature really wanted to  confer power of detention on the police officer  for violation of any condition of the permit,  then there would not have been the necessity of  adding the expression “relating to the route on  which or the area in which or the purpose for  which the vehicle may be used....””

8. This finding of the Tribunal though raised before the High  

Court, the High Court, for the reasons best known to it has not  

answered the same.  

9. One  thing  is  certain  and  clear  to  us,  in  view  of  the  

finding of fact reached by the Tribunal that the bus in question on  

the date of the incident was not carrying passengers more than the  

permitted capacity.  It is also the finding of the Tribunal that  

apart from the persons who were travelling in the bus, the persons  

walking on the road were also involved in the accident.  If that is  

so, the Tribunal is justified in directing the Insurance Company to  

compensate all those persons who died in the accident and also those  

who sustained injuries.

10. In that view of the matter, we sustain the order passed by  

the Tribunal.

11. At this stage, we make it clear that we do not subscribe  

to the findings and the conclusions reached by the High Court in the  

impugned judgment and order. However, the dismissal of the appeals

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filed by the Insurance Company in the High Court is correct for the  

reasons aforestated by us in this order.

12. The Appeals are disposed of accordingly.  No order as to  

costs.

Ordered accordingly.

.......................J. (H.L. DATTU)

.......................J. (DIPAK MISRA)

NEW DELHI; FEBRUARY 20, 2013.