IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 739 of 1997 L I C V/S CHAND BAI & ORS Mr. SG OJHA, for the appellant / petitioner Mr. YASHWANT MEHTA, Mr. LALIT PAREEK & Mr. J.GEHLOT, for the respondents. Date of Order : 25.2.2009 HON'BLE SHRI N P GUPTA,J. JUDGMENT This appeal has been filed by the Life Insurance Corporation, hereafter referred to as the L.I.C., the defendant no.1, against the award of Motor Accident Claims Tribunal, Bhilwara dt. 7.4.1997, passing an award for a sum of Rs. 1,35,000/-, and holding the defendant no. 4 insurer liable to the extent of Rs. 15,000/-, and holding the present appellant, and defendant no. 3 the driver, liable for a sum of Rs. 1,20,000/-. The necessary facts are, that on 22.12.1988 the deceased Kailash was travelling in Jeep no. MOU 2251, which was being driven rashly and negligently by the driver defendant no.3. The jeep hit against Pathwari, near village Mand Ka Khera, and fell in the pit, and overturned, resulting into death of Kailash. The defendant no.1 the appellant filed reply and claimed, to be the owner of the jeep, and pleaded, that it was being used by the defendant no.2 Pradeep Kumar, who is the Development Officer, and was given on Hire Purchase Agreement. This jeep was insured with the defendant no. 4 the United India Insurance Co., hereafter referred to as the insurer. The insurer admitted the jeep being insured, and pleaded, that the claimants are not entitled to any compensation, as only employees of the L.I.C. could travel in the jeep, and the deceased travelled on his own risk. It was also pleaded that the insurer has charged premium at the rate of Rs. 12/- per passenger, and even according to that, its liability is limited to that of Rs. 15,000/-. This stand of the insurer about the limit of its liability was not controverted by the claimants or the other defendants. The learned Tribunal, accordingly, as noticed above, has held the insurer liable for Rs. 15,000/-, and remaining liability has been fastened on the appellant and the driver. It is contended by the learned counsel for the appellant, that within the meaning of Section 2(3) of the Motor Vehicles Act, when vehicle is subject to hire purchase agreement, or an agreement of lease or hypothecation, the person in possession of vehicle is 2 called ‘owner of the vehicle’, and therefore, according to the learned counsel, it was defendant no. 2, who was required to be described as the owner, and should have been held liable, instead of the appellant. Learned counsel for the respondent, on the other hand, supported the impugned judgment. I have gone through the impugned judgment, and the record. In the written statement the appellant has clearly admitted the jeep to be of his ownership. The definition given in Section 2 does create a legal fiction, but here it is specifically pleaded by the appellant, claiming itself to be the owner. Then, the learned Tribunal at page-4 has recorded a categoric finding, that the question about ownership, and jeep being insured, is not a matter of dispute between the parties, and it is also not in dispute, that the jeep was being used by defendant no.2. With this I find from the record, that the defendant no.2 has appeared in the witness box as D.W.1, and has deposed, that the registered owner was Branch Manager of L.I.C., and he was using the jeep. Then, he has deposed that the vehicle was taken for augmenting the business of the L.I.C., and was used for that purpose only. He has also deposed, that Kamal Kishore the younger brother of the deceased was his agent 3 who was serving in Vikram Cement, and therefore agency was taken in the name of Kamal Kishore, otherwise actually Kailash, the deceased, was working as agent, and in that capacity, for the business of L.I.C., Kailash had taken the jeep, and was not being used for hire or reward. In cross examination he has deposed, that the deceased was selling about 25 to 30 policy per year, and was getting Rs. 10,000/- to 12,000/- per year as commission. He has also stated, that the deceased had taken the jeep from him, only for securing more business. In my view, this part of the testimony could not be successfully assailed by the appellant, in any manner. No evidence has been led in this regard by the L.I.C. Thus, it can very safely be inferred that the vehicle was being used for augmenting the business of the appellant L.I.C., and at the time of accident also, the deceased was travelling in the jeep, only for the purpose of augmenting business of the appellant. As such, the appellant cannot escape its liability. This factual aspect was not very seriously disputed either, by the learned counsel for the appellant. Thus, I do not find any force in this appeal, and the same is, therefore, dismissed. ( N P GUPTA ),J. /Sushil/ 4