1/4 S.B.CIVIL MISC. APPEAL NO.52/97 (National Insurance co. vs. Smt. Chandri & Ors.) S.B.CIVIL MISC. APPEAL NO. 21/97 (National Insurance Co. vs. Om Prakash & Ors.) DATE OF ORDER : 6/8/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Sanjeev Johari, for the appellant. Mr.Chaitanya Gahlot, for the respondents. By both these appeals the appellant insurance company has challenged the award dated 13.8.1996 passed by MACT, Ratangarh deciding claim case no.54/95 (Smt. Chandri w/o Mangi Lal vs. Babu Khan) and claim case no.50/95 (Om Prakash vs. Babu Khan & Ors.). Both these claims arose out of the accident which took place on 21/3/1995 when truck no. RJ-10-G-0142, which was owned by Babu Khan and was used to carry the goods namely boulders and stones, being driven in rash and negligent manner turned turtle and in the said accident Mangilal lost his wife and Om Prakash got injured. Legal representatives of Mangi Lal – Smt. Chandri and others approached the learned Tribunal by way of claim case no. 54/95, whereas, Om Prakash, injured, approached the Tribunal by filing claim case no.50/95. While deciding claim cases, the learned Tribunal 2/4 awarded total sum of Rs.1,70,000/- for the death of Mangi Lal and Rs.39,400/- in favour of injured Om Prakash. Learned counsel for the Insurance Company Mr. Johari relied upon the decision of Supreme Court in case of New India Assurance Co. Ltd. vs. Asha Rani & Ors – (2003) 2 SCC 223 and submitted that both these persons namely Mangi Lal and Om Prakash were gratuitous passengers in the said goods vehicle namely the truck and, therefore, the Insurance Company could not be held liable for paying compensation to them. On the other hand, Mr. Gahlot submitted that there is evidence on record to show that both these persons were working regularly as `Mazdoor' with the owner of the said truck for last 8-10 years and used to earn Rs.75 – Rs.90/- per day. The wife of the deceased Mangi Lal in her statement as well as injured Om Prakash had clearly deposed before the learned Tribunal that both these persons were working as `Mazdoor' with the owner of the said truck and in view of this they cannot be said to be gratuitous passengers in the said good vehicle. He, therefore, submitted that the judgment in the case of Asha Rani ( supra) does not apply in the facts of present case. 3/4 Having heard learned counsel and upon perusal of record, this Court is of the opinion that the deceased Mangi Lal as well as injured Om Prakash cannot said to be gratuitous passengers in the said truck no. RJ-10-G-0142 owned by Babu Khan, which was insured with the appellant Insurance company. Admittedly, insurance cover was applicable on the date of the accident i.e. 21/3/1995. In view of the evidence before the learned Tribunal that these two persons were regular `Mazdoor' working on the said truck owned by Babu Khan, they are employees of said Babu Khan and cannot be said to be gratuitous passengers. Admittedly, the truck in question used to carry stones and boulders, therefore, the evidence on record establishes the claim put up by the claimants before the learned Tribunal. The judgment relied upon by learned counsel for the appellant in Asha Rani's case (supra), therefore, is of no avail to the appellant Insurance Company in the present case. Otherwise also, there is no ground in the present appeals to exonerate the appellant Insurance Company from its liability to pay 4/4 compensation. Consequently, there is no force in these appeals and same are accordingly dismissed. (DR.VINEET KOTHARI), J. itemno.4,s/1 baweja/-