IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1208 of 2008 Date of Decision: 28.10.2010 Oriental Insurance Company Limited ........Appellant Versus Sushila Devi & Others .......Respondents CORAM:- HON'BLE MR. JUSTICE K.KANNAN Present: Mr. S.P.Singh, Advocate for Mr. Amit Rawal, Advocate for the appellant. Mr. Amit Singla, Advocate for respondents No.1 to 3. ****** K.KANNAN, J. (ORAL) 1. The petitioner-Insurance Company is in appeal challenging the liability of the insurer on the ground that the deceased was a gratuitous passenger. It seems almost like an after thought by the insurer, for in the written statement filed by the insurer, the reference to a such status comes by interlineation. This is not to state that it has to be taken a false defence and, therefore, I am prepared to examine whether there is any evidence as regards how the deceased was traveling in a goods carriage. PW-1, the widow-claimant of the deceased has stated in her affidavit that the deceased was bringing the goods for his shop in a Three-Wheeler that met with an accident. That deceased was running a Kiryana Shop was itself not dispute and it is, therefore, even a natural evidence that the deceased was using a three-wheeler for transportation of his goods. In the affidavit FAO No.1208 of 2008 -2- of PW-2, it is stated as follows:- “Rajinder (deceased) was only traveling in the three wheeler along with driver at that time. Voluntarily (he was with his goods).............. He was having about 100 Kg. Kiryana goods. It is correct that when the police recorded my statement I did not disclose about the kiryana goods.” In the cross-examination, the answers elicited are as follows:- “My husband was running a Kiryana Shop at village Durjanpur. He was owner of the shop. I have not brought any documentary proof to prove the ownership of my husband................... It is wrong to suggest that my husband did not receive injury in motor accident and I am deposing falsely.” Even in the cross-examination of the PW-2, apart from eliciting the fact that the said witness had not spoken about the goods to the police, there is no suggestion that he was not having goods. 2. Learned counsel refers to the fact that through the evidence of Ahlmad of the Criminal Court as RW-2, it was elicited that there was no recovery memo regarding the recovery of any goods. The driver as owner has also been examined in this case and in his evidence as RW-1, he has stated as follows:- “Only Rajinder was sitting with me along with his goods. The goods was Kiryana. There were 3 bags of goods. After the accident, my three wheeler not turned turtle (sic) and the same was in good condition. The deceased FAO No.1208 of 2008 -3- Rajinder was sitting in the back portion of the vehicle and he fell down on the road along with his goods. I stayed at the spot for about 1 hour. Police came at the spot in my presence. The police also taken into custody the said goods.” 3. When the petition is filed seeking for compensation for death and a defence is taken that insurance company that it is not liable since the deceased was a gratuitous passenger, it shall be only then that it becomes necessary for the claimant to explain whether the deceased was a gratuitous passenger. It is invariably an issue that provides for exclusion of liability and such exclusion if it is sought by insurer, it shall be on the insurer to plead and prove the same. I am not impressed by the argument that since the recovery memo does not make any reference to goods, there could have been no goods in the vehicle. There is evidence of the fact that he was having a shop. There was evidence that he was using the three-wheeler for transporting goods and there was also evidence of the driver and witness to say that goods were in the goods carriage. I cannot reject all this evidence by the only fact from what the police did or failed to do about the recovery and allow it prevail upon cogent and clear evidence adduced by witnesses. 4. The liability on the insurer has been correctly fastened and there is no scope for modifying or correcting the award. 5. Dismissed. October 28, 2010 (K.KANNAN) Gagan JUDGE