IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 308 of 2005 Date of Decision: 24.12.2008 United India Insurance Company ..Appellant. Versus. Smt.Nisha Devi & ors. ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? For the Appellant: Ms. Madhu Sharma, Advocate, vice Mr. Ashwani K Sharma, Advocate. For the Respondents Mr. Harish Behal, Advocate, for Respondents 1 & 2. Mr.Rajesh Mandhotra, Advocate, for respondents 3 & 4. Deepak Gupta, J.(oral) This appeal is directed against the judgment of the learned Motor Accident Claims Tribunal, Hamirpur dated 18.5.2002 in MAC petition No. 44/03, whereby he has awarded compensation of Rs. 3,06,400/- along with interest @ 9% per annum from the date of filing of the petition till payment and has further held the appellant- Insurance Company liable to pay the said amount. Briefly stated the facts of the case are that respondents 1 to 3, hereinafter referred to as the claimants, being widow, minor son and father of deceased Vijay Kumar filed a petition under Section 166 of the Motor Vehicles Act alleging that on 16.5.2003 when deceased Vijay Kumar was travelling in a tractor trolley bearing No. HP-22- 6355 owned and driven by respondent No.4, hereinafter referred to as the owner –cum- driver, the same met with an accident due to rash - 2 - and negligent driving of the driver. It was alleged that the deceased Vijay Kumar was carrying agricultural implements and household articles from Hamirpur town to his native place. The Insurance company contested the claim on the ground that the deceased was a gratuitous passenger and was being carried in the tractor in violation of the terms of the Act and policy of the Insurance Company. The learned Motor Accident Claims Tribunal, rejected the contention of the Insurance company and held that the deceased was carrying fertilizers in the trolley of the tractor and therefore, he could not be termed as gratuitous passenger. The learned Tribunal has totally misdirected itself in holding that the deceased was not a gratuitous passenger. It is apparent that the learned tribunal did not understand what is the concept of a gratuitous passenger. In the petition filed under Section 166 of the Motor Vehicles Act, all that mentioned was that the deceased was travelling in the vehicle along with some household articles and agricultural implements etc which he had purchased in Hamirpur town. The owner had admitted this allegation. It has come in evidence that the owner of the tractor is the real brother of the deceased. There is no evidence whatsoever on record to show that the deceased had paid any amount for hire of the tractor. The owner of the tractor while appearing in the witness-box has clearly stated that the deceased met him on the way and asked for a lift. He gave lift to the deceased. There was no payment of any amount. The deceased had not hired the tractor or the trolley. Therefore, the deceased was obviously a gratuitous passenger. In the present case, I find that the policy of insurance Ex.RX does not cover any liability for passenger. The vehicle in question was not a transport vehicle. Therefore, it is apparent that the - 3 - Insurance Company could not have been held liable to pay compensation since the deceased was a gratuitous passenger. In view of the above discussion, the appeal is allowed and the award of the learned Tribunal in so far as it holds the Insurance Company liable to pay compensation is set aside and it is held that only respondent No.4 shall be liable to pay compensation. No costs. December 24, 2008. ( Deepak Gupta ),J. s.