IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO(MVA) No.37 of 2005 Date of Decision : January 1, 2009 United India Insurance Co. Ltd. …Appellant. Versus: Asha Devi and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. G. D. Sharma, Advocate For respondents 1 to 4: Mr. M. S. Guleria, Advocate. For respondents 5 & 6 : None SANJAY KAROL, JUDGE (Oral) The insurer has filed the present appeal assailing the impugned Award dated 8.11.2004 passed by the Motor Accident Claims Tribunal-II, Kangra at Dharamshala, H. P. in M.A.C.P No. 1-P/2002 titled as Asha Devi & Others vs. Bhuri Singh & Others. The Tribunal has awarded a sum of Rs.4,70,800/- as compensation in favour of the claimants i.e. widow, parents and one minor child of the deceased Ranjit Singh, who died in a motor accident. The challenge is limited only to issue No.5 framed by the Tribunal. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Deceased Ranjit Singh on 3.8.2001, was travelling in Jeep No.HP-37-5804 which met with an accident near village Sehol curve, Tehsil Palampur, Distt. Kangra, H.P. In the said accident, Shri Ranjit Singh sustained injuries and, as such, had to undertake medical treatment at Primary Health Centre, Bhawarna. Condition being serious he was referred to District Hospital, Dharamshala, where he undertook treatment but could not recover and ultimately succumbed to his injuries. His widow aged 34 years, parents and minor son aged 3 years filed a claim petition u/s 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) claiming compensation for a sum of Rs.7 lacs. While admitting the incident the owner opposed the petition on the ground that the deceased fell from the Jeep and died due to his own negligence. The negligence of the driver was disputed. The vehicle being insured with the appellant, the insurer filed a separate reply, inter alia stating that the driver was not holding a valid and effective driving licence and that the deceased was travelling as a gratuitous passenger. In effect, the terms and conditions of the insurance policy stood breached. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether deceased Ranjit Singh died in a motor accident which took place on 3.8.2001, at village Sehol, while he was travelling in a jeep bearing registration No.HP-37-5804 being 3 driven rashly and negligently by respondent No.2? …..OPP 2. If issue No.1 is proved in affirmative, whether the petitioners are legal heirs of deceased Ranjit Singh are entitled to compensation. If so, to what amount and from whom? ….OPP 3. Whether the deceased died due to his own negligence as alleged? …… OPR1&2 4. Whether the respondent No.2 was not holding a valid and effective driving licence at the relevant time and the vehicle was being plied in violation of the terms and conditions of the insurance policy, as alleged? …….OPR-3. 5. Whether the deceased was travelling in the jeep as a gratuitous passenger and as such the respondent No.3 is not liable to pay any amount, as alleged? ………OPR-3. Opportunity to lead evidence was afforded to the parties. Appreciating the material on record (oral and documentary), the Tribunal decided issue No.1 by holding that the driver had been rash and negligent in driving the vehicle No. No.HP-37-5804, which caused the accident in which the deceased sustained injuries and consequently died. It was specifically held that the deceased had not died due to his own negligence. While deciding issue No.4, the Tribunal took into account the statement of RW-2 and the driving licence Ext.RW- 2/A to hold that the driver was having a valid and effective driving licence and was entitled to drive the vehicle at the time of occurrence of the accident. On the question of compensation, 4 the claimants were entitled to a sum of Rs.4,70,800/-. The said amount was determined by taking into account the evidence led by Ms. Asha Devi (PW-3) and taking into account the income of the deceased to be Rs.4800/- per month, by adopting the unit system and applying a multiplier of 12, total loss of income was determined to be Rs.4,60,800/- and in addition thereto Rs.10,000/- was awarded as conventional charges. The findings of the Tribunal on the aforesaid issues are not under challenge in the present appeal. While deciding issue No.5, the Tribunal considered the evidence of Shri Bhuri Singh (RW-1) to arrive at the conclusion that the deceased was travelling as owner of the vehicle and not as a gratuitous passenger at the time of occurrence of the accident. It is this finding of the Tribunal which is under challenge in the present appeal. I have heard learned counsel for the parties and also perused the record. For the purpose of adjudication of the present appeal, the statements of Shri Ramesh Chand (PW-4), owner Shri Bhuri Singh (RW-1) and driver Shri Ashwani Kumar (RW-2) are relevant. It is a matter of record that the present appellant did not lead any evidence inspite of opportunity having been granted for the same. In fact as is evident from the order-sheets of the proceedings, on 30th September, 2004 learned counsel 5 appearing for the insurer made a statement that no evidence was required to be led. It is true that neither in the claim petition nor in the evidence the claimants have stated that as to how the deceased was travelling in the vehicle at the time of the accident but, however, it is also a matter of fact that the burden of discharging the onus to prove issue No.5 was on the insurer. The claimants were not travelling together or had knowledge of the said fact. Be that as it may be the fact of the matter is that the claimants witness Shri Ramesh Chand (PW-4) who happened to visit the site, has specifically deposed that after having visited the place of occurrence of the accident, he noticed that the cement and boxes were loaded in the Jeep. Further, Shri Bhuri Singh (RW-1) has categorically deposed as under:- “that when I was ill at my home, I received a telephonic call from my driver Ashwani Kumar that he was carrying some goods in the vehicle and the person to whom the goods belonged was sitting in the vehicle and due to his negligence he fell from the vehicle.” Shri Ashwani Kumar (RW-2) has corroborated the statement of RW-1 and has specifically deposed as under:- “On 3.8.2001, I was at Bhawarna and the deceased met me and told me that his luggage is to be dropped. Then the deceased along with his luggage sat in my Jeep.” 6 Importantly, there is no cross-examination on this point and the aforesaid version has gone totally unrebuttable. The fact that the deceased was travelling in the vehicle as owner of goods stands proved. Section 147(1)(i) of the Act specifically safe guards his interest as the vehicle was admittedly insured. In any event, the insurer did not lead any evidence to discharge the burden to prove the issues. As such, I find no error in the findings returned by the Tribunal. The Tribunal has appreciated the material in its entirety while arriving at its conclusion. There is no illegality or irregularity in the same. The appeal is accordingly dismissed. ( Sanjay Karol ), Judge. January 1, 2009. (rana)