Lokeshwar Singh Panta, J.
1. This is a batch of 41 appeals filed under Section 173 of the Motor Vehicles Act, 1988, out of which 38 appeals are by the National Insurance Co. Ltd. and three by the claimants. The appeals arise out of the separate judgments and awards dated 27.3.1997, 31.7.97, 15.1.1999 and 10.5.1999 respectively, rendered by the Motor Accidents Claims Tribunals, Shimla and Rampur Bushehr in different claim petitions, whereby the compensation has been awarded in favour of the victims who received injuries and legal representatives/heirs of the persons who died in the motor vehicle accident occurred on 4.3.96. The facts and law involved in these appeals are identical and learned counsel for the respective parties advanced their arguments in common and, therefore, we propose to decide these appeals by this common judgment.
2. The facts giving rise to these appeals may briefly be stated as under:
On 4.3.1996 bus bearing registration No. HP-06-1245 owned by respondent No. 2, Secretary, Tehsil Co-operative Union, Nankhari, and being driven by respondent No. 3, Moti Ram, driver was going from Narkanda to Nankhari. The bus was insured with the appellant National Insurance Co. Ltd. (hereinafter for short 'the insurance company'). On the way when the bus reached near a place known as 'Gaman', it went off the road and had fallen down into a nallah, as a result of which some of the passengers had died due to the injuries and many other passengers sustained injuries on their person. The injured were taken to Government Dispensary, Nankhari and subsequently, they were shifted to Indira Gandhi Medical College & Hospital, Shimla, where they remained under treatment in respect of the injuries which were sustained by them as a result of the accident. The victims of the accident and the legal
representatives/heirs of the deceased had filed their respective claim petitions before the Motor Accidents Claims Tribunals, Shimla and Rampur Bushehr. The claimants in their claim petitions have alleged that the accident took place due to rash and negligent driving of the bus by the driver and they claimed different amounts of compensation.
3. The respondent owner of the vehicle in question contested the claim petitionson the ground that the accident did not take place due to rash and negligent driving of the bus by the driver. It is stated that the accident had taken place due to mechanical defect but it is admitted that the bus in question had met with an accident on 4.3.96. It is further stated that the injured persons and the deceased persons were not travelling in the bus at the time of the accident. The respondent driver in his separate written statement has stated that he was not driving the bus in question at the time of the accident and it was one Mathu Ram who was driving the bus in question. The appellant insurance company in its preliminary objections pleaded that the vehicle in question was not driven by the authorised driver, that the vehicle did not have fitness certificate and the vehicle was being used for a purpose other than that specified in the route permit and it was also being used for the purpose not covered under the terms of the policy of the insurance and, therefore, the appellant insurance company was not liable to pay the amount of compensation. On merits, all the averments made in the claim petitions were denied for want of knowledge. However, the appellant insurance company alternatively pleaded that the amounts of compensation claimed by the claimants were highly exaggerated and there was no relevance between the loss suffered and the compensation claimed. Thus, the insured, driver and the appellant insurance company have stated that the claimants were not entitled for compensation.
4. On the controversial pleadings of the parties, the Tribunals below framed necessary issues. The parties went to trial and led their oral and documentary evidence. The Tribunals below on appreciation of the entire evidence on record found that the accident took place due to rash and negligent driving of the vehicle by the driver (Mathu Ram), who also died in the accident. Consequently, the compensation was awarded to the victims of the accident and the legal representatives/heirs of the deceased passengers, holding the appellant insurance company liable to pay the amounts of compensation so awarded.
5. The appellant insurance company has filed 38 appeals challenging the correctness and validity of the awards on various grounds. The appellant insurance company has also filed applications under Order 1, Rule 10, Civil Procedure Code for impleadment of the State of Himachal Pradesh as party respondent in these appeals, applications under Order 6, Rule 17, Civil Procedure Code for amendment of written statements stating that according to the route permit of the bus issued by the Regional Transport Authority, Shimla, the carrying capacity of the bus was 42 passengers and it has come to the knowledge of the appellant insurance company that the bus was overloaded by passengers at the time of the accident and in fact the bus was carrying 91 passengers and, therefore, the appellant insurance company may be permitted to amend its written statements taking the defence of overloading of the ill-fated bus. Applications under Section 151, Civil Procedure Code read with Section 170 of the Motor Vehicles Act, 1988, seeking permission to prosecute the appeal on merits in the name of the insured other than the defences available to the appellant insurance company have also been filed.
6. Three appeals were filed by the claimants for enhancement of the amount of compensation awarded by the Tribunals below.
7. We have heard Mr. R.M. Suri, learned counsel for the appellant insurance company and learned counsel appearing on behalf of the respondents.
8. Mr. R.M. Suri, learned counsel vehemently contended that the State of H.P. is a necessary party for the reason that it has failed to provide sufficient number of buses on the route in question for carrying passengers and also in not keeping proper checking of overloading of buses and thus in eventuality of accident, the State of H.P. is negligent in discharging the duty and, therefore, it being a contributory cause, is liable to pay the amounts of compensation. The learned counsel also contended that in the present cases, the liability of the insurance company was covered under the insurance policy for carrying 42 passengers and two driver and conductor and in excess to 42 passengers, the liability is of the State of H.P., who is negligent in not keeping proper checks upon the driver for overloading the bus. The learned counsel next contended that overloading of the vehicle snaps the relationship of the insurer and insured so as to exonerate the insurance company from liability under the policy. The learned counsel has taken the shelter of IMT-12 of the policy of insurance dealing with the legal liability to passengers including the liability for accidents to employees of the insured arising out of and in the course of their employment. Clause IMT-12 reads as under:
In consideration of an additional premium of Rs...and notwithstanding anything to the contrary contained in Section II (1) (c) but subject otherwise to the terms, exceptions, conditions and limitation of this policy the company will indemnify the insured against liability at law for compensation (including law costs of any claimant) for death of or bodily injury to any person other than a person excluded under Section II (1) (b) being carried in or upon or entering or mounting or alighting from the motor vehicle.
Provided always that in the event of an accident occurring whilst the motor vehicle is carrying more than the number of persons mentioned in the Schedule hereto as being the licensed carrying capacity of that vehicle in addition to the conductor, if any, then the insured shall repay to the company rateable proportion of the total amount which would be payable by the company by reason of this endorsement if more than the said number of persons were carried in the motor vehicle.
9. The learned counsel relied upon a judgment of the learned single Judge of the Punjab and Haryana High Court in New India Assurance Co. Ltd. v. Maj. Hans Raj Saini, 1989 ACJ 740 (P&H), to contend that when it is a case of composite negligence and one tortfeasor has been made to pay the compensation, he can rateably ask for compensation from the other tortfeasor, but then again the court is required to apportion the negligence inter se to reimburse the tortfeasor who compensated the claimants and it is the duty of the Tribunal to determine the composite negligence and civil court in separate proceedings cannot determine it when the compensation is awarded under the Motor Vehicles Act.
10. Per contra, the learned counsel for the other side more specifically the learned counsel for the insured vehemently contended that the applications for impleadment of the State of H.P. and amendment of the written statements and permission to take other defences than permissible to the appellant insurance company are not maintainable as the averments made in those applications are not available to the appellant insurance company under Section 149 of the Motor Vehicles Act. The learned counsel next contended that the route permit issued by the authority was for plying the passenger vehicle and not for carrying the limited number of passengers. The learned counsel for the respondents also contended that the IMT Clause 12 in policy Exh. R-4, on which reliance has been placed by the learned counsel for the appellant insurance company is not found incorporated in the said policy which was filed and marked, as above, and that the appellant insurance company has filed only the copy of the first page of the policy of insurance in other claim petitions and not the full content of the policy and, therefore, the defence projected by the learned counsel for the appellant insurance company taking shelter under IMT-12 is not available to the appellant insurance company. The learned counsel for the respondents next contended that so far the applications of the insurance company for taking the defences which are not available to it under Section 170 of the Act are concerned, those applications are not maintainable in appeal before this court.
11. We have given our careful consideration to the rival contentions of the learned counsel on both sides.
12. So far the impleadment of the State of H.P. as party respondent in these appeals is concerned, we find no justification to allow those applications at this stage for the reason that it is not as though the appellant insurance company could not do this before the Tribunals below and this claim of the appellant insurance company is now made as a pure afterthought to drag on the proceedings, just to prolong the agony of the claimants who were awarded the amounts of compensation by the Tribunals below. If the factum of overloading of the bus in question remained unchecked by the law enforcing authority, even assuming it to be so, that cannot be a ground sufficient in law to make the State as party respondent as though it by any of its acts of commission/omission has contributed in any manner for the accident. It cannot be said that the State of H.P. was directly involved or concerned in the accident, to us not even remotely appear to be the cause for the accident. It is practically impossible for the authorities of the State to keep a constant vigil or check upon overloading of buses at all times and at all places and, therefore, the authorities or the State as such cannot be saddled with any liability for the accident as a contributory of any cause for the same or payment of the compensation or any portion of it, awarded by the Tribunal. Therefore, the State could not have been accused of contributory negligence and consequently there are no merits in the applications for impleadment of the State of H.P. We have perused the stage carriage permit Exh. R-2, and on our perusal, we find that the vehicle in question was granted the route permit for the purpose of carrying passengers and against column 7 (b) in respect of maximum number of passengers, which may be carried at any one time, the word 'NA' has been written. If the purpose for which the route permit was granted in favour of the insured is for carrying passengers and no number of passengers as such has been specified, it may depend upon the seating capacity of the bus only and it cannot also be said that the State or its officers were responsible for not checking the overloading of the passengers in the ill-fated bus or answerable in any manner for the accident or claims arising out of the same. We find no legal duty or obligation on the State or its officers to depute some officials to see that every bus at all and every place or point of time is not overloaded. Carrying of more passengers in the ill-fated bus is not so fundamental cause of the accident even as per the evidence brought on record and the Tribunals below have found the driver of the bus to be negligent in driving the vehicle and causing the accident. The learned Chief Justice Mr. P.D. Desai, as he then was, in Oriental Insurance Co. Ltd. v. Bishan Dass 1988 ACJ 106 (HP), relying upon the judgment of the Apex Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), held that use of the insured vehicle in question on route for which there was no permit, would not attract the provisions of Section 96(2)(b)(i)(c) of the Motor Vehicles Act, 1939, which had been pressed into service by the insurance company to deny the statutory liability. At the most, it was a case of breach of the condition of the permit which was not the same thing as breach of the purpose for which it was issued. In Shingara Ram v. Balak Ram Walia 1988 ACJ 176 (HP), the same learned Chief Justice of this court, as he then was, while dealing with a case where the truck was parked on kucha portion of the road on the wrong side which rolled down into the khud when the road gave way on account of load which the truck was carrying, held that the State Government could not be said to have been contributorily negligent as joint tortfeasor. Learned Chief Justice proceeded further to hold that there was no liability for damage which was not of a foreseeable type within the scope of the duty of care. Foreseeability is the sole test of whether damages are recoverable in negligence. When wrongful act of a third party, who acts irresponsibly or unlawfully, intervenes as a new force between the negligent act of the original wrongdoer and the injury to the victims, the element of remoteness may come into play and the test of reasonable for eseeability may not be satisfied, unless the party seeking to fasten the liability upon the State Government establishes that the circumstances were such that the initial wrongdoer should have reasonably foreseen that the third party would act as he did in accordance with the human nature. In the present cases, we find no fault on the part of the State or its authorities who can be said to be negligent in checking the overloading of the passengers in the ill-fated bus. Carrying of more passengers than the number given in the insurance policy may be irregular but is not so fundamental a breach as to put an end to the contract of insurance and it cannot also be a defence open to the appellant insurance company to allege that the overloading of the passengers in the ill-fated bus was the direct cause of the accident for which the State Government is liable to contribute the amounts of compensation awarded by the Tribunals below. In B.v. Nagaraju v. Oriental Insurance Co. Ltd. 1996 ACJ 1178 (SC), it is held that when in terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver and if those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying. Their Lordships further held that merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though but not so fundamental in nature so as to put an end to the contract of insurance, unless some special circumstances or factors existed which, by themselves had gone to contribute to the causing of the accident.
13. In the cases on hand, the appellant insurance company has not proved that the accident was as a result of overloading of the vehicle in question. The learned counsel for the appellant insurance company has relied upon the report of the Sub-Divisional Magistrate, who was appointed Inquiry Officer by the State Government, marked Exh. RW-3/A, whereunder, it was found that the ill-fated bus had carried 90 passengers at the time of the accident. The proceedings of the Vidhan Sabha, Exh. RW-9/A, where the question was raised by one of the members of the Assembly about the payment of the amount of compensation to the victims and legal representatives/ heirs of the deceased passengers would indicate that on the day of the accident, the ill-fated bus was carrying 90 passengers. We have observed that overloading of the ill-fated bus will not amount to violation of the route permit or any other law for which the State Government can be held to be contributorily negligent for not taking due care and caution in checking overloading or providing more route permits for plying more buses so as to prevent accidents. The appellant insurance company in the claim petitions decided by the Motor Accidents Claims Tribunal, Rampur Bus-hehr, has filed applications for impleadment of the State Government as party and for amendment of the written statements which were rejected by the Tribunal. In other claim petitions, the appellant insurance company has not filed similar applications and thereby no opportunity was given to the respondents to controvert the claims of the appellant insurance company before the Tribunals below. Under Section 149(2)(a)(i)(c) of the Motor Vehicles Act, 1988, the defence which the appellant insurance company can raise is in respect of the breach of specified or enumerated conditions of the insurance policy one of which being, viz., if the vehicle allowed by permit has been used for a purpose other than the specified purpose. As noticed above, the purpose of permit of the ill-fated bus was to carry the passengers and, therefore, there is no violation of the statutory provisions by the insured and as such the defence that more than 42 + 2 passengers specified under the policy of insurance were carried at the time of the accident in the ill-fated bus is not available under Section 149(2)(a)(i)(c) of the Motor Vehicles Act to the appellant insurance company against third party risk as the vehicle was not used for the purpose not authorised by the permit. For taking this view, we are supported by a Division Bench judgment of the Madhya Pradesh High Court in Radhey Shyam Agarwal v. Gayatri Devi 1998 ACJ 1177 (MP) and the judgment of the Apex Court in B. v. Nagaraju v. Oriental Insurance Co. Ltd. 1996 ACJ 1178 (SC).
14. In United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal, Lakhimpur 1993 ACJ 828 (Gauhati), the Full Bench of Gauhati High Court held that the insurance company cannot raise defences in appeal which are not available under Section 149 (2) of the Motor Vehicles Act, 1988 unless, of course, the Tribunal has passed an order under Section 170 or the insurance company has reserved in the policy the right to contest the claim on behalf of the insured. In the cases on hand, the appellant insurance company has miserably failed to prove the exception clause IMT-12 in the policy Exh, R-4 on the file of the Tribunal below and on perusal of the policy, we find no such clause incorporated in the policy which was filed and marked in evidence. The learned counsel for the appellant insurance company has shown us a copy of the policy of the insurance in which IMT-12 clause has been incorporated but mere showing of policy of insurance containing IMT-12 clause for the first time at the time of hearing before us will not prove the contents of the documents relating to the contract entered into between the insured and insurer. As no attempt has been made by the appellant insurance company to properly prove this document on record, therefore, we cannot allow the appellant insurance company torely upon clause IMT-12 in the present cases and also upon condition No. 2 incorporated in the policy under heading of conditions. Even otherwise, we find that the overloading does not have the effect of snapping the contracted relationship or exonerating the insurance company from liabilities for payment of compensation. If at all, it only reserves a right in the insurance company to proportionately recover from the insured for rendering the insurance company for greater liability than the one contracted for. The evidence on record does not permit us to decide about the rights of the parties, if any, in this regard. For all these reasons, we are not inclined to accept the submissions of the learned counsel for the appellant insurance company to allow the applications filed under Order 1, Rule 10, Civil Procedure Code for impleadment of the State of H.P. as also the applications under Order 6, Rule 17, Civil Procedure Code for amendment of the written statements incorporating the defence of overloading of the ill-fated bus in these appeals, as a ground of their defence to avoid their liability in total or in part.
15. The applications filed under Section 170 of the Motor Vehicles Act by the appellant insurance company to contest the claims of the claimants on merits cannot be entertained at this stage for the simple reason that the appellant insurance company has not filed such applications before the Tribunals below and unless the Tribunals have permitted the insurer to contest the claims on all or any other grounds that are available to persons against whom the claims have been made. In Shankarayya v. United India Insurance Co. Ltd. 1998 ACJ 513 (SC), their Lordships held that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits and on ground other than those permitted under the Act only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and that it should be a reasoned order by the Tribunal too. Their Lordships further proceeded to hold that unless the said procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is again said that it is true that the claimants themselves had joined insurance company in the claim petitions but that was done with a view to thrust the statutory liability on the insurance company on account of the contract of the insurance and that was not an order of the court itself permitting the insurance company which was impleaded to avail of a larger defence on merits on being satisfied on the conditions mentioned in Section 170. Thus, it is well settled law of the Apex Court that unless the insurance company was allowed by the Motor Accidents Claims Tribunal to take all defences mentioned in Section 170 by a reasoned order, such applications under Section 170 of the Motor Vehicles Act are not maintainable in appeal before this court. Therefore, the applications also merit dismissal on this short ground.
16. The next submission of the learned counsel for the appellant insurance company was that under Order 41, Rule 33 of the Code of Civil Procedure, this court has wide power to pass any decree or make any order to do justice to the parties and, therefore, the appellant insurance company may be allowed to raise all defences provided under Section 170 challenging the awards on merits is equally untenable. If the contention of the learned counsel as projected is allowed, it will amount granting relief to the appellant insurance company in respect of the payment of compensation awarded by the Tribunals below under the third party risk against a party which was not legally liable to pay the whole or any part of compensation awarded. Allowing the claims of the appellant insurance company by granting relief as prayed for, in its favour, will amount to twisting of the facts of the present cases to abstract question based on niceties of law alone dehors the evidence on record and the law applicable. Therefore, we are afraid we cannot accept this submission of the learned counsel either. The provision of Order 41, Rule 33, Civil Procedure Code was the subject-matter of interpretation in several judgments of the Supreme Court and their Lordships of the Apex Court were pleased to lay down the scope and extent of powers of the appellate court in this regard to lay down the limitation on their exercise and guidelines necessary for regulating the exercise of discretion conferred upon the appellate court. In Nirmala Bala Ghose v. Balai Chand Chose AIR 1965 SC 1874, it was observed that though Order 41, Rule 33 of the Code of Civil Procedure is expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final, so as to enable the court to adjust the rights of the parties and that no unrestricted right can be at any rate said to have been conferred by the rule to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. This power has also been held to be available to pass a decree which ought to have been passed by the court below meaning thereby which ought in law to have been passed was in fact not passed by the court below. [See Koksing v. Deokabai AIR 1976 SC 634]. In Nirmala Bala Ghose v. Balai Chand Ghose (supra), it has also been held that the powers under Order 41, Rule 33, Civil Procedure Code can be exercised only if the court finds that the appeal on its merit must succeed and as a result of such interference it becomes necessary to readjust the rights of the parties.
17. The learned counsel for the appellant insurance company has also contended that in F.A.O. (MVA) Nos. 333, 336 and 348 of 1997, the Motor Accidents Claims Tribunals have awarded higher amount of compensation and, therefore, compensation so awarded shall deserve to be reduced.
18. As noticed above, the appellant insurance company is not entitled to challenge the quantum of compensation awarded by the Tribunals below to the claimants. The insurance company on account of the contract of insurance is liable to comply with the entire award amount of compensation and that precisely is the reason why the insured had not thought it fit to challenge the compensation in these proceedings. As held by the Supreme Court in Shankarayva v. United India Insurance Co. Ltd. 1998 ACJ 513 (SC), the insurer having not moved under Section 170, before the Tribunal below is not entitled to challenge the compensation on merits, therefore, we have no justification to interfere with the awards of the Tribunals awarding the amount of compensation to the claimants in these appeals.
19. The decisions rendered in New India Assurance Co. Ltd. v. Rajni 1999 ACJ 1286 (P&H); New India Assurance Co. Ltd. v. Maj. Hans Raj Saini 1989 ACJ 740 (P&H); New India Assurance Co. Ltd. v. Bimla Ahuja AIR 1990 Delhi 68; and Unique Motor & Genl. Ins. Co. Ltd. v. Kartar Singh 1964 PLR 1083, relied upon by the learned counsel for the appellant insurance company are of no assistance to the appellant insurance company in the teeth of the well settled legal position as laid down by the Apex Court, referred to hereinabove.
20. In F.A.O. (MVA) No. 7 of 1998, Nos. 188 and 288 of 1999, the claimants have filed appeals for enhancement of the amount of compensation. We have been taken through the evidence led by the parties and also the reasonings and findings of the Tribunals below awarding the amount of compensation. The conclusions arrived at by the Tribunals in this regard and the determination of the amount of compensation in these cases seem to be well justified and reasonable as also commensurate with the damage suffered. Nothing on the record has been brought to our notice to doubt the correctness of the determination made or which compels us to take a different view for the purpose of further enhancement of the compensation in favour of the claimants. Hence we find no justification to interfere with the same and in our view, the Tribunals below have awarded the amount of compensation on sound and proper appreciation of the entire evidence led by the claimants and have adopted reasonable multiplier(s) and, therefore, in our view the awards are just and reasonable and call for no interference in these appeals.
21. No other point has been raised by the learned counsel on either side.
22. In the result, for the above stated reasons and observations all these appeals and applications are without merit and are accordingly dismissed. In the facts and circumstances of the cases, we leave the parties to bear their own costs.