IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. F.A.O. (MVA) No. 164 of 2004. Date of Decision: 17th November, 2008. Oriental Insurance Company …..Appellant. Versus Sarla Devi and others. ……Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr. J.S.Bagga, Advocate. For respondents No: Mr. Vinod Gupta, Advocate. 1 to 4. For respondents No: Mr. Sunil Mohan Goel, Advocate. 5 to 8. Sanjay Karol, Judge (oral). The insurer M/S Oriental Insurance Company has filed the present appeal assailing the impugned award dated 16th February, 2004, passed by Motor Accidents Claims Tribunal, Kullu, District Kullu, Himachal Pradesh in Claim Petition No. 24/2002, titled as Gian Chand and others vs. Vohri Devi and others. The challenge is on two grounds: 1). The compensation awarded is much on the higher side as far as the determination of the annual income of the deceased is concerned. 2). The Tribunal has wrongly held that the deceased was a gratuitous passenger. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 On 7th March, 2002, Shri Gian Chand in a road accident. Vehicle No. HP-34-A-0539 (Jeep), was being driven by its owner Sh. Sevak Ram who also died in the accident. The legal heirs of Sh. Gian Chand filed a claim petition against the legal heirs of the owner. In the claim petition, a specific plea was taken by the claimants that the deceased who was member of the marriage party was travelling in the Jeep at the time of accident. This fact was disputed by the legal heirs of the owner. The Insurance Company while admitting that the vehicle was insured took an omnibus plea that the terms of the policy stood breached and as such, the insurer was not liable to indemnify the insured. Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP. 2. Whether there was no negligence on the part of the deceased Sewak Ram, as alleged, if so, its effect? OPR 1 to 4. 3. Whether the petition is bad for non-joinder of necessary parties, as alleged? OPR 1 to 4. 4. Whether the driver Shri Sevak Ram was not holding and possessing a valid driving licence at the time of accident, if so, its effect? OPR-5. 5. Whether the vehicle in question was being plied at the time of accident in contravention of the provisions of M.V.Act and the insurance policy, as alleged? OPR-5. 5.A. Whether the accident took place due to rash and negligent driving of vehicle No. HP-34-A/0539 by its driver, namely Sevak Ram in which Gian Chand received injuries and thereafter succumbed to it, as alleged? OPP. 6. Relief. The Tribunal found deceased Sevak Ram to have driven the vehicle in a rash and negligent manner resulting into the occurrence of the accident in which deceased Sh. Gian Chand died. Taking into account his income to be Rs. 10,000/- per annum, by applying the multiplier of 18, 3 compensation of Rs. 1,80,000/- was awarded towards the loss of income under the head of dependency. Rs. 3,000/- was also awarded towards funeral expenses and Rs. 2000/- as consortium. By referring to and relying upon the decision of the Apex Court in New India Assurance Company vs. Asha Rani and others, 2003(2) SCC 223, issue No. 5 was decided by holding that since the vehicle was insured, the insurer was liable to pay the compensation awarded. I have heard the learned counsel for the parties and also gone through the record. That Shri Gian Chand died in the accident in question is not disputed. The same in any event stands proved by Dr. Kamal Kapoor PW- 1. An FIR Ext. PW2/A, duly proved by HC Bhagat Ram (PW-2) also records the occurrence of the accident and death of Sh. Gian Chand. That he was 28 years of age stands proved through School Leaving Certificate Ext. PW-3/A. The age of the claimant No. 1, 26 years, is also not in dispute. The vehicle was being driven in a rash and negligent manner by deceased Sh. Sevak Ram is also not in dispute. The Tribunal has taken into account the income of the deceased, for the purposes of determining the dependency to be Rs. 10,000/- per annum. The same stands proved by the wife of the deceased, Smt. Sarla Devi PW-3, who has deposed that the deceased used to look after the domestic work and agricultural affairs and also sell vegetables. The accident took place in the year 2002. The deceased was young, hail and hearty. The State Government in the year 2002 was paying Rs. 70/- to daily waged employees, therefore, in my view, a sum of Rs. 10,000/- per annum as determined by the Tribunal towards loss of income is not on the higher side. The findings of the Tribunal as discussed hereinabove are therefore upheld. 4 In my view, the Tribunal erred in referring to and relying upon the ratio of law laid down by the Apex Court in Asha Rani (supra) for the reason that the accident took place in 2002 when the relevant provisions of the Motor Vehicles Act, 1988 stood amended w.e.f. 14.11.1994. As to whether the deceased was owner of the vehicle/goods or and his employee or a representative has to be examined in the facts of each case. The facts of Asha Rani (supra) are not similar to the instant case. On the question of the claimant being a gratuitous passenger, it has been fairly brought to my notice that issue No. 5 was not correctly framed and therefore, adequate opportunity was not afforded to the contesting parties to adduce necessary evidence in that regard. The legal heirs of the owner have taken a categorical stand that the deceased was not a member of the marriage party travelling in the vehicle at the time of the accident. According to the them, while the marriage procession was in progress and the baratis were walking on foot, the vehicle came from behind and since the driver lost the control he collided with the parapet, thus causing injuries to the baratis who were walking on foot near the parapet. From the statement of the Branch Manager, Sh. S.S.Pathania, Oriental Insurance Company (RW-4), the insurer, it is evident that even he has not deposed that the deceased was a gratuitous passenger. As such, I am of the considered view that the Tribunal ought to have framed a specific issue as to whether the deceased was a gratuitous passenger or not. Accordingly, in addition to issue No. 5, issue No. 5.B, is framed as under: 5.B. Whether the deceased was travelling in the vehicle at the time of the accident as a gratuitous passenger, or not? 5 Consequently, the matter is remanded back to the Tribunal for adjudication afresh on both the issues No. 5 and 5.B. The Tribunal shall afford opportunity to the parties to adduce additional evidence. It is clarified that not more than two opportunities, shall be granted to the insurer and the insured for the said purpose. The Tribunal shall endeavour to decide the matter as expeditiously as possible and preferably on or before 30th June, 2009. The parties through their counsel agree to appear before the Tribunal on 22nd December, 2008. The record be immediately sent back alongwith a certified copy of this order. Notice need not be issued to the claimants as the issue with regard to the factum of the accident, the negligence of the driver, the dependency of the claimants, their entitlement and the amount of the compensation awarded stands settled. It is clarified that the amount of compensation deposited by the insurer shall be disbursed to the claimants in terms of the impugned award. However, pursuant to the remand, if the Tribunal ultimately comes to the conclusion that the liability is that of the insured, it shall always be open for the insurer to recover the same alongwith the interest, from the insurer. The appeal is accordingly partly allowed with the aforesaid directions. November 17, 2008. ( Sanjay Karol), (karan) Judge. 6