FAO No.2192 to 2196 of 2000 (O&M) and 1 CR No. 4017 of 2000 (O&M) IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No.2192 of 2000 Date of decision February 23 , 2011 National Insurance Company Ltd. ....... Appellant Versus Rajo Devi and others FAO No. 2193 of 2000 National Insurance Company Ltd. ....... Appellant Versus Guddi and others ........Respondents FAO No. 2194 of 2000 National Insurance Company Ltd. ....... Appellant Versus Shamsher Singh and others ........Respondents FAO No. 2195 of 2000 National Insurance Company Ltd. ....... Appellant Versus Santro and others ........Respondents FAO No. 2196 of 2000 National Insurance Company Ltd. ....... Appellant Versus Sukhma and others ........Respondents CR No. 4017 of 2000 National Insurance Company Ltd. FAO No.2192 to 2196 of 2000 (O&M) and 2 CR No. 4017 of 2000 (O&M) ....... Appellant Versus Balwinder Singh and others ........Respondent CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. R. M. Suri, Advocate for the appellant. None for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. Learned counsel appearing for the appellant states that there is a connected matter of revision by the National Insurance Company against the claimant arising out of the same accident. Learned counsel produces a copy of typed set. Several files have been burnt in the fire that took place on 30.1.2011 and it is suspected that the original file of CR No.4017 of 2000 was also destroyed in the fire. The copy of the paper book filed by the counsel shall substitute the original record and will be treated as reconstituted. The said revision is also taken up today along with other cases. 2. The common ground of defence by the insurer to all the claimants were that the deceased or the injured persons were carried for hire in the insured's vehicle when the policy of insurance was only for use as a private car. This aspect was considered by the Tribunal in an extensive fashion. One Balwinder Singh-PW-5 had deposed that Car in question was arranged by his brother. PW-7 Shamsher Singh deposed FAO No.2192 to 2196 of 2000 (O&M) and 3 CR No. 4017 of 2000 (O&M) that the Car was arranged by friends of Dilbagh. He also deposed that respondent No.1 used to take passengers on booking. PW-10 Balkar Singh had deposed that Maruti Car was owned by Rajinder who was Sarpanch of Village Dua. He also stated that one Rajesh Kumar had arranged the Maruti Car. There was, therefore, prevarication amongst the witnesses as to who arranged the Car. The Tribunal while pointing out to such inconsistency found that the claimants themselves had stated that all of them were gratuitous passengers in the vehicle. The burden of proof for violation of terms of policy was evidently on the insurer and the Tribunal found that there was no positive evidence to prove that the Car was being used as a taxi. It took note of the fact that the deceased and injured persons travelling in the Car were going to attend the marriage of one Dilbagh and all the persons were close associates, friends or relatives of the said Dilbagh. PW-10 Balkar Singh had stated that the brother of Dilbagh, who had died in the accident had actually arranged the car. The Tribunal found that the discrepant version that the car had been arranged by the deceased brother of Dilbagh or some of the friends of Dilbagh did not lead to any conclusion that the car had been hired as a taxi and they were being transported for hire. Shamsher Singh himself explained what he meant by saying that the passengers were “booked” to travel, when he said that he only meant that he had taken assurance from the driver that he would take them to the marriage place and bring them back on the particular date and time. The Tribunal also referred to a decision of Orissa High Court in Gouranga Katual s. Govinda Mohapatra and nothers 1996 ACJ (Orissa) 93 to state that use of a private car by friends cannot lead to an inference that had been used for hire or reward that there existed no violation of terms of the policy. 3. Learned counsel for the Insurance Company FAO No.2192 to 2196 of 2000 (O&M) and 4 CR No. 4017 of 2000 (O&M) points out that the seating capacity of the Car included the driver was four plus one(driver). The driver was not a claimant. There are six claim petitions, of which five are appeals and one is Civil revision which are dealt with in this batch of cases. In terms of the decision of Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Anjana Devi 2008 1 PLR 179, the maximum awards in four cases excluding the driver must be taken as going to the aggregate of the liability of the Insurance Company. The said amount shall be ratably distributed amongst the claimants in all the cases in the same proportion that each award bears to the total amount recoverable by the aggregate of four cases. The unsatisfied portion of the amount against the insurer for each respondent/claimant shall be recoverable against owner/insured and the driver of the vehicle involved in the accident. The award is modified and the appeal and Civil revision are disposed of, as above. (K. KANNAN) JUDGE February 23, 2011 archana