FAO No.3720 of 2011 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3720 of 2011 (O&M) Date of Decision. 25.05.2011 Bajaj Allianz General Insurance Company Ltd., Branch Office at Sonepat through its Manager Legal, Bajaj Allianz General Insurance Company Ltd., SCO 139-140, 1st Floor, Sector 8-C, Madhya Marg, Chandigarh 160018 ......Appellant Versus Smt. Sunita and others .....Respondents Present: Ms. Vandanaa Malhotra, Advocate for the appellant. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the Reporters or not ? No. 3. Whether the judgment should be reported in the Digest? No. -.- K. KANNAN J.(ORAL) 1. Delay in filing the appeal is condoned. 2. The appeal is by the insurance company claiming that the deceased was a gratuitous passenger. The case of the claimants was that the deceased was an owner of the goods carrying in the truck and he was, therefore, entitled to full cover through terms of compulsory policy of insurance under Section 147 of the Motor Vehicles Act. 3. Learned counsel for the insurance company contends that he must be taken to be a gratuitous passenger only because he was travelling along with the goods and not seated in the cabin but outside the cabin. If only it was contended that the owner of the goods was travelling outside the cabin without permission of the driver or the owner or he was an unauthorized entrant into the vehicle having loaded FAO No.3720 of 2011 (O&M) -2- the goods then such a contention would be possible. I do not find anything in terms of the policy that excludes the possibility of owner travelling with the goods apart from the place assigned in the cabin. I, therefore, reject the contention that the owner of the goods must be treated as a gratuitous passenger by the fact that he was not seated in the cabin. 4. Learned counsel also states that the application filed under Section 163-A itself was not maintainable since the claimants had contended that the deceased was earning Rs.15,000/- through agricultural income. The Tribunal, however, was not prepared to accept this contention on behalf of the claimants, rejected the same and took the income of the deceased at Rs.3300/-, which brought the annual income to be less than Rs.40,000/-. The learned counsel states that the very fact that the petition was filed making an averment in the petition that the person was earning Rs.15,000/- was sufficient to disqualify the petition from being entertained under Section 163-A of the Motor Vehicles Act. I will not accept such an interpretation made, for, the basis for bringing amendment to the Motor Vehicles Act through Section 163-A of the Motor Vehicles Act was to provide a quick remedy for a person whose income was less than Rs.40,000/-. If the claimant was overzealous to make a tall claim relating to the status of the deceased but the Tribunal found that there was no proof to accommodate such a plea but the income could be taken only at Rs.3000/- or Rs.3300/-, it will not lose its jurisdiction by the only fact that the petitioner had set out in the petition that the deceased had more than Rs.40,000/- as annual income. In the absence of any such proof, the Tribunal took the FAO No.3720 of 2011 (O&M) -3- income of the deceased to be less than Rs.40,000/-. This contention regarding non-maintainability is also rejected. 5. Learned counsel for the appellant seeks to make a reliance on judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Challa Bharathamma and others JT 2004 (7) SC 519 that said that owner of the goods were taken to be person, who travels in the cabin of the truck. I do not reckon to be a proposition of law though it happened in a case when the owner of the goods was found to be not seated in the cabin. It all depends on particular facts and circumstances, for we have come by situations, where even a passenger in a bus travelling atop the bus is still awarded compensation and the insurance company has been made liable to satisfy the claim for the only reason that it was the negligence of the driver or conductor that the person was sent on the top of the bus (vide New India Assurance Company Ltd. Vs. Shanti Bai (1995) 2 SCC 539. A place where the owner of the goods assigned to himself in the truck, if it had been done without the concurrence of the driver or the cleaner, I would accommodate such a contention. If it was voluntarily allowed to be occupied by the driver or conductor and if there are no terms of the policy which are shown that they would preclude an owner from travelling in any place other than the cabin, I will not allow for such a plea to be taken by the insurance company. 6. The award is confirmed and the appeal is dismissed. (K. KANNAN) JUDGE May 25, 2011 Pankaj*