FAO No.246 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.246 of 2009 Date of Decision. 21.07.2010 United India Insurance Co. through its Dy Manager, Sector 17, Chandigarh ........Appellant Versus Jaspal Singh son of Baldev Singh and others ...Respondents Present: Mr. Vinod Chaudhary, Advocate for the appellant. Mr. G.P. Jaswal, Advocate for repondent No.5. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The appeal has been admitted only qua the 5th respondent, who was the owner of the vehicle accepting the contention of the insurance company that it should have been provided with recovery rights. The claimants' demand for compensation was acceded to by the Tribunal on the ground that the deceased was travelling in the vehicle, which had met with an accident in collision with a tractor loaded with sugarcane. The claimants had opted to proceed against the vehicle only in which the deceased was travelling. 2. The insurance company taken a plea that the other vehicle involved in the accident namely the tractor ought to have been also taken as responsible and the non-impleadment of the owner and the insurer of the tractor was not maintainable. It is also contended FAO No.246 of 2009 -2- that the deceased was not a third party and was not covered because she was a gratuitous passenger. It was averred in defence that the vehicle in question was not having a valid route permit at the time of the alleged accident. 3. Referring to the cause for death resulting in the claim, the Tribunal adverted to the copy of the DDR Ex.P1, the post-mortem report Ex.P2 and the school certificate that showed that she had travelled in the vehicle and died on account of the injury sustained by her in the accident. It was elicited in evidence that the deceased Manjit Kaur and her husband and some other persons were going to Radhasoami Satsang, Beas in the vehicle in question. Another co- passenger Sudershan Singh PW-2 had corroborated the statement of the husband of the deceased PW-1. Respondent No.1, who was the owner had admitted the accident and PW-2 had given evidence to the effect that the vehicle had been sent for taking the followers of Radhasoami Satsang on the request of the father of PW-2. It appears to have been suggested at the time of trial which stands reflected in the judgment that the vehicle, which had been insured as a private vehicle was being used as a taxi car through PW-2's statement that they had hired the vehicle in question for an amount of Rs.2100/-. It was, therefore, contended that the vehicle, which had been insured as a private vehicle, when it was used for hire, it must be taken that there had been a breach of term of the policy and therefore, the insurance company would not become liable. The Tribunal held that it was nowhere proved that any payment of fare had been made by any of the passengers. It was also reasoned that FAO No.246 of 2009 -3- the 1st respondent-owner was not shown to have charged any fare for the vehicle in question for carrying the passengers. Even a suggestion had not been put to the driver of the vehicle, Jaspal Singh that the vehicle in question had been used for hire by the occupants of vehicle. The Tribunal had taken note of the fact that one of the claimants, Jaspal Singh was not merely the husband of the deceased but he was himself the driver. The Tribunal found that there was nothing to prove that Jaspal Singh was also driving the vehicle in question in rash and negligent manner and since the claim petition was filed under Section 163-A, it was not necessary that any proof of negligence is required to be made. 4. I find that the entire approach of the Tribunal was erroneous. It is one thing to state that it is not necessary to prove rashness and negligence in a claim under Section 163-A but quite another to say that claim could be made even by a passenger in a private vehicle against the owner of the vehicle, which was involved in the accident under Section 163-A of the Motor Vehicles Act. There are only two occasions when such a claim would be possible. If the insured were to be a workman and the risk to such a workman is covered by virtue of Section 147, then the insurance company would be liable. Such a claim could be either by the driver himself as an injured person or the representatives of the driver in case of his death or any workman travelling in the course of employment. If a claim could be sustained by any passenger against the owner and the insurer under Section 163-A then it would be possible only in a case where the driver was himself not the tort feasor. In such a FAO No.246 of 2009 -4- situation, there has to be a finding that there was no negligence on the part of the driver. In this case, the driver of the vehicle was also the husband of the deceased and if it were to be found that the driver was responsible for the accident, it would not have been possible for him to make a claim even under Section 163-A of the Motor Vehicles Act. The Tribunal skirted the issue of finding as to who was responsible for the accident, whether it was the husband of the deceased or the tractor driver. It merely observed that in a claim under Section 163-A, issue of negligence was irrelevant. It would have been irrelevant if the claim was by a third party to the accident or by a workman against its employer for a claim that is possible under the Workmen's Compensation Act. 5. Having said all this on the evidence placed before the Tribunal, which I have examined it has not been brought out that one of the claimants namely the husband of the deceased, who was the driver was himself responsible for the accident. If the driver was not found to be the tort feasor, there cannot be a bar to a claim under Section 163-A of the Motor Vehicles Act if death of one of the passengers was the cause of action. The death of gratuitous passenger would give a cause of action for claim if there was a comprehensive policy. The copy of the policy has not been filed in the Court and apart from stating that the petitioner was a gratuitous passenger in a private vehicle, the insurance company has not produced the policy to render a finding whether the claimants could obtain a compensation against the insurer or not. A company that pleads for exclusion of liability shall produce the policy in Court. It FAO No.246 of 2009 -5- is also seen that the evidence was deflected to other considerations which are not part of pleading namely that the passengers used the vehicle for hire. I do not find any such pleading by the insurance company and therefore, there is no question of the insurance company relying on some statement of a fellow passenger that the vehicle was being driven for hire. 6. The appeal of the insurance company is dismissed, although for reasons rendered differently than how the Tribunal was dealt with. (K. KANNAN) JUDGE July 21, 2010 Pankaj*