JUDGMENT
T. Vaiphei, J.
1. This batch of MAC appeals is directed against the common judgment and award dated 6-2-2007 passed by the learned Member, Motor Accident Claims Tribunal, Shillong in MACT Cases Nos. 7 to 11 of 2006 dismissing the claim petitions filed by the claimants/appellants for compensation. Since all the claim cases arose out of the same vehicular accident, the appeals were heard together and are being disposed of by this common judgment.
2. Heard Mr. V.K. Jindal, the learned senior counsel for the appellants. I have also heard Mrs. T. Yangi, the learned Counsel for the respondent-Insurance Company and Mr. K. K. Gupta, the learned Counsel for the respondent No. 1.
3. The material facts giving rise to these appeals may be noticed at the very outset. On 11-12-2004 at about 10.30 p.m. there was a motor accident at Barik Point near Step by Step School, Shillong involving one Maruti Van bearing Registration Number ML-05-C-2051, one TATA Sumo bearing registration Number ML-05-B-6787 and one truck bearing Registration Number AS-01-P-6355, which resulted in the death of Master Santosh Biswa aged 9 months and also caused injuries to Smt. Anu Sunar, mother of the said minor, Smt. Hari Maya Sunar, Smt. Santimaya Sunar and Smti Shanti Sunar. Smt. Anu Sunar filed MACT No. 7 of 2006 claiming compensation for the death of the deceased minor. She is also the claimant in MACT No. 10 of 2005 claiming compensation for injuries caused to her in that accident. Similarly, Smt. Hari Maya Sunar, Smti. Santimaya Sunar and Smti. Shanti Sunar filed MACT Case No. 8 of 2005, MACT Case No. 9 of 2005, MACT Case No. 11 of 2005 respectively for claiming compensation. The claim petitions were contested by the respondent Insurance Company as well as the respondent No. 1, who is the owner of the offending Maruti Van. At this stage, it may be noted that the owner of the Maruti Van. namely, NP Sharma had died during the pendency of the cases and was substituted by the wife, Smt. Indira Sharma. On the pleadings of the parties, the Tribunal framed the following issues:
1. Whether this application is maintainable in its present form?
2. Whether the deceased died as a result of the accident which occurred on 11-12-2004 of Barik Point, Shillong?
3. Whether the accident occurred due to the rash and negligent driving of the driver of Maruti Van No. ML-05-C-2051?
4. Whether the Opposite Parties are liable for compensation ? If so, to what extent?
5. Whether the claimant is entitled to compensation ? If so, to what extent ?
These are the common issues for all the cases, but in the case of the injured claimants, the Tribunal framed the following separate issues:
Whether the claimant sustained injuries as a result of the accident which occurred on 11-12-2004 of Barik Point, Shillong and whether the injuries sustained has resulted in permanent disablement ?
In the course of trial, the claimants/appellants examined themselves as their own witnesses apart from examining three common witnesses to substantiate their claims. The respondent-Insurance Company and the owner of the vehicle examined only one witness, namely, the Motor Vehicle inspector to rebut the claims of the appellants. At the conclusion of the trials, the Tribunal passed the impugned common judgment awarding nil compensation.
4. The Tribunal held that the motor accident had taken place as alleged by the appellants and in that accident, the minor, namely, Santosh Biswa died and that all the claimants/appellants sustained grievous injuries, though they did not sustain permanent disability. The Tribunal also recorded the finding that the accident was caused by the rash and negligent driving of the vehicle by the driver of the Maruti Van. Insofar as the liability of the respondents to pay compensation, the Tribunal proceeded to hold that as per the decision of the Apex Court in United India Assurance Co. Ltd. v. Tilak Singh , the deceased as well as the appellants, who were found to be travelling in the Maruti Van without the consent of the owner and, therefore, gratuitous passengers, were not covered by the Third Party Risk contemplated by Section 147 of the Motor Vehicles Act, 1988. It was on the basis of the aforesaid findings that the Tribunal concluded that the respondents were not liable to pay compensation to the appellants and, conversely, the appellants/claimants were not entitled to compensation.
5. Mr. V.K. Jindal, the learned senior counsel for the appellants, contends that the Tribunal grossly erred in placing reliance upon the decision of the Apex Court in Tilak Singh’s case (supra) holding that “the Insurance Company is not liable for gratuitous passenger” without reference to the related insurance policy : Tilak Singh case was not a case directly dealing with the liability of the Insurance Company in the case of gratuitous passengers travelling in a private car. The learned senior counsel points out that the policy in the instant case is not one on statutory insurance policy but is a comprehensive insurance policy, the full contents and terms thereof were never produced by either the owner of the offending vehicle or by the Insurance Company the respondent-Insurance Company never pleaded that the policy in question relates to a private vehicle and does not cover the liability in respect of gratuitous passengers travelling in such vehicle. Drawing my attention to the decision of the Division Bench of this Court in United Insurance Co. Ltd. v. Amitava Dey (1993) 1 GLR 149 : AIR 1994 Gau 54 (NOC) the learned Counsel further submits that whenever an insurer wants to raise a plea about limitation of its liability, the insurer should refer to the terms of the particular contract and indicate the nature and terms of the policy, it is the duty of the Insurance Company to file a complete copy of the insurance policy, take specific plea and adduce evidence to show that the liability is not covered under the contract of insurance entered into between the insured and the insurer on the pain of holding it liable for the compensation on its failure to do so. Last but not the least, it is submitted by him that even if the Insurance Company is not held liable to pay any compensation under the contract of insurance, the tribunal ought to have followed the law now well settled by the Apex Court in a catena decisions by directing the respondent-Insurance Company to initially satisfy the award of compensation due and thereafter recover the same from the owner of the vehicle by instituting an execution proceeding without filing a separate suit. Per contra, Mrs. T. Yangi, the learned Counsel for the respondent Insurance Company, while supporting the impugned judgment, submits that the insurance company has no liability whatsoever in the absence of proof by the appellants that the policy of insurance covers gratuitous passenger. She further contends that when the respondent No. 1 failed to produce the up-to-date original Driving Licence, Registration Certificate, Fitness Certificate, Insurance Policy and other relevant documents in respect of the vehicle in question, the Insurance Company stands absolved from any liability whatsoever. The learned Counsel vehemently denies that the policy in question is a comprehensive insurance policy and submits that the onus to prove that the policy is a comprehensive insurance policy is squarely upon the claimants or at any rate, upon the owner of the vehicle; neither the appellants nor the owner of the offending vehicle having proved this crucial fact the respondent-Insurance Company cannot be held liable.
6. The various contentions advanced on behalf of the rival parties are duly noted. Incidentally, it may be observed that the findings of the learned Tribunal in respect of (i) the injuries sustained by the appellants, (ii) the rash and negligent driving of the offending vehicle by the driver causing the death of the minor and also causing grievous injuries to the other appellants have now attained finality inasmuch as no appeal was preferred against these findings when such findings could operate as res judicata against the respondents. Therefore, the grievances made by Mrs. T. Yangi, the learned Counsel for the Insurance Company against these findings cannot now be entertained by this Court at this stage. The only question which falls for consideration is whether the respondent-Insurance Company can be held liable for compensation for gratuitous passengers like the appellants travelling in the Maruti Van? In the instant case, the Tribunal has recorded the findings that all the appellants were travelling in the offending vehicle without the consent of the owner. These findings were reached by the Tribunal on the admissions made by the appellants themselves in their cross-examination. In my opinion, these findings are based on evidence, which need not be disturbed by this Court.
7. As far as the first contention of the learned senior counsel for the appellants that Tilak Singh case AIR 2006 SC 1576 (supra) is not an authority for the proposition that an insurer is not liable for compensation to gratuitous passengers travelling in a private car is concerned, the submission deserves to be noted only to be rejected. The law is already settled that even the obiter dicta of the highest Court of the land is binding upon this Court. In the first paragraph of the judgment in question, the top Court noted thus:
The core issue involved in this appeal is : Whether a statutory insurance policy under the Motor Vehicles Act, 1988 intended to cover the risk to life or damage to properties of third parties, would cover the risk of death of injury to a gratuitous passenger carried on in a private vehicle.
After reviewing the case laws in Pushpabhai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P) Ltd. , Amrit Lal Sood v. Kausalya Thapar and T.V. Jose (Dr.) v. Chacko P.M. (2001) 8 SCC 748 : AIR 2001 SC 3939 in the context of the Motor Vehicles Act, 1939 and the case laws in New India Assurance Co. v. Satpal Singh and New India Assurance Co. v. Asha Rani with reference to the Motor Vehicles Act, 1988, the Apex Court in United India Insurance Co. v. Tilak Singh case (supra) at para 21 concluded thus:
21. In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.
8. I need say no more. Faced with this situation, the learned senior counsel, nevertheless, contends that the insurance policy held by the owner of the vehicle in this case is not a statutory insurance policy but. is a comprehensive insurance policy and, therefore, the insurer is liable to pay compensation, the full contents and terms thereof not being produced by the owner of the vehicle of the insurer. The case of the appellants is that the insurance policy taken by the owner of the vehicle is not merely a statutory insurance but a comprehensive insurance policy covering insurance even against gratuitous passengers It is true that statutory insurance policy does not cover death or injury caused to the occupants of a vehicle who are not carried for hire or reward, but that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could be covered. In such cases, where the policy is not merely a statutory policy, the terms of the policy shall have to be considered to determine the liability of the insurer. It is also true that it is not obligatory for the owner of the vehicle to get his vehicle comprehensively insured or insured to cover risk other than those required to be covered by an “Act only” policy or for amounts in excess of the maximum premium prescribed for an “Act only” policy. It is open to the owner of the vehicle to get such a wider coverage on payment of prescribed premium. Such insurance entitles him to claim reimbursement to the extent covered by the policy (see United India Insurance Co. v. Amitabha Dey (1993) 1 GLR 149 : AIR 1994 Gau 54 (NOC). In such cases, where the policy is not merely a statutory policy, the terms of the policy shall have to be considered to determine the liability. In the instant case, the appellants are not expected to produce the policy of insurance before the Tribunal to prove that the insurance policy taken by the insured is a comprehensive insurance policy. This is so, because the claimants for compensation under the Motor Vehicles Act are not in possession of such documents. The Apex Court in National Insurance Co. Ltd. v. Jugal Kishore reiterates the legal position that it is the duty of the party which is in possession of a document, which would be helpful in doing justice in the cause, to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.
9. Reading the written statement of the owner of the vehicle, the respondent No. 1, and of the Insurance Company in juxtaposition will show that no specific plea was ever raised by the owner of the vehicle that the policy was one for comprehensive insurance policy nor was a specific plea raised by the Insurance Company that no comprehensive insurance policy was taken by the owner of the vehicle. True, the appellants also did not raise a plea that the vehicle was comprehensively insured, but then they are not, in the nature of things, expected to know this. Moreover, the policy of insurance which the insurer issued is a representation upon which the authorities and third parties are entitled to act. The owner of the vehicle contested the claim petition and the burden of proof will naturally lie upon him to prove that his vehicle was comprehensively insured if the insurer does not come forward to prove the same. For, if the claimants are found to be gratuitous passengers and if the insurer is ultimately held to be not liable the liability to pay the compensations would have to be fastened upon him. Under Section 101. Evidence Act, 1872, it is provided that whoever desires any Court to give judgment to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The owner of the vehicle ought to have produced a copy of the policy of insurance before the Tribunal to show his vehicle was comprehensively insured or was insured to cover gratuitous passengers.
10. Be that as it may. Section 149(5) of the Motor Vehicles Act, 1988, which imposes a liability on the insurer, must also be given its full effect. The insurer may not be liable to satisfy the decree, especially when the appellants are found to be gratuitous passengers and not covered by comprehensive insurance policy and, therefore, its liability may be zero, but it does not mean that it did not have initial liability at all. The settled practice, which has now virtually crystallized into a law, is to direct the insurer to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the owner and the insurer was the subject-matter of determination before the Motor Accident Claims Tribunal and the issue was decided against the owner and in favour of the insurer. A three Judge Bench of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh observed that the liability of the Insurance Company to satisfy the decree at the first instance and to recover the awarded amount from the owner, or driver, of the offending vehicle has been holding the field for a long time, which is a settled rule of law and should not ordinarily be deviated from. In the instant case, even if the Tribunal found that the claimants were gratuitous passengers and, therefore, not entitled to compensation from the insurer, it ought to have determined the quantum of compensation payable to them and thereafter direct the insurer to satisfy the awards in terms of the settled law of the Apex Court referred to above and pass further directions In the manner indicated by the Apex Court In various decisions as approved in Swaran Singh case (supra).
11. The next question to be examined is the nature of order to be passed on the facts and circumstances of these cases. As already noticed earlier, the findings of the Tribunal with respect to (i) the factum of the vehicular accident, which resulted in the death of the minor. Santosh Biswa and of causing grievous injuries to the other appellants; (ii) the involvement of the Maruti Van No, ML-05-C-2051 in that accident; (ii) the accident being caused by the rash and negligent driving of the driver concerned and (iv) the status of the deceased minor and other claimants that they were gratuitous passengers travelling in a private vehicle/van, are unassailable and do not call for my interference. In this view of the matter, what remains to be decided is whether the grievous Injuries sustained by the Injured appellants resulted in their permanent disablement, partial or total. The findings of the Tribunal on this aspect of the matter have been sketchy and seriously challenged by Mr. V. K. Jindal, the learned senior counsel for the appellants. There is force in the contention of the learned Counsel. The Tribunal can determine the quantum of compensations payable to the appellants only upon proper enquiry and findings on the nature of the grievous injuries sustained by each of the appellants. In my opinion, such exercise cannot be undertaken by this Court at the appellate stage since further adduction of evidence may become necessary. Therefore, in the fitness of things, the appeals should be remitted to the Tribunal for fresh trial only on the question of the nature of grievous injuries i.e. whether they are permanent disablement, partial or total, sustained by each of the injured appellants and thence on the quantum of compensations payable to them. It shall be open to the injured-appellants to adduce other or further medical evidence, etc. to show that their respective injuries in the accident led to their permanent disablement, partial or total. It shall also be open to the owner of the offending vehicle to rebut such evidence. Liberty is also given to the owner of the offending vehicle to establish by documentary evidence that the policy of insurance held by him at the time of the accident was a comprehensive policy, or at least, covers gratuitous passengers like the deceased and the appellants. On the determination of the quantum of compensation payable to the claimants in accordance with law, the initial burden of satisfying the awards may be fastened upon the insurer in accordance with the procedure laid down by the Apex Court as indicated earlier.
12. The net result of the foregoing discussions is that these appeals arc partly allowed. The impugned judgment and award to the extent indicated above is hereby set aside. The appeals are accordingly remanded to the Tribunal for fresh trial on the aforesaid limited questions by allowing the parties to adduce other and further evidence in connection therewith. Save and except for the limited re-trial ordered herein, the findings of the Tribunal are hereby affirmed. On facts. I pass no order as to costs. The Tribunal is directed to dispose of the cases as expeditiously as possible. Transmit the LC records immediately.