IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO Nos. 166, 167, 168 of 2002 Date of decision June 17, 2008. __________________________________________________________ 1. FAO 166 of 2002 New India Assurance Company ….Appellant Versus Parwati & others. ….Respondents 2. FAO 168 of 2002 New India Assurance Company ….Appellant Versus Sunehru Devi and others …..Respondents 3. FAO 167 of 2002 New India Assurance Company ……Appellant Versus Sewa Ram and others ……Respondent Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 FAO No. 166 of 2002 For the Appellant : Shri Sanjeev Sood, Advocate. For the Respondent No.1: Shri Inderjit Narwal, Advocate FAO No. 167 of 2002 For the Appellant : Shri Sanjeev Sood, Advocate. For the Respondent No.1: Shri Inderjit Narwal, Advocate 1 Whether reports of Local Papers may be allowed to see the judgment? 2 FAO No. 168 of 2002 For the Appellant : Shri K.D. Sood, Advocate. For the Respondent No.1: Shri Inderjit Narwal, Advocate For the Respondent No.2: Shri S.V. Sharma, Advocate __________________________________________________________ Dev Darshan Sud, J. All these appeals are being disposed of by a common judgment as they arise out of the same accident and raise a common question of law and fact. The claim petitions were consolidated and tried by learned Motor Accident Claims Tribunal and disposed of by a common judgment. The accident, out of which the claim petition arose, occurred near Kadarghat of Police Station Dhali on 24.5.1995. The vehicle involved was a Pick-up van carrying marriage articles and other household articles from Shimla to village Graon. The ill fated vehicle fell into 400 feet deep gorge. The driver alongwith three other persons namely Moti Lal, Ramesh Chand and Bhajan Dass died in the accident. It was held that Moti Lal was traveling in the vehicle alongwith articles which he had purchased for the marriage of his sister. Ramesh Chand was traveling as a person who was engaged for loading and unloading the articles in the truck and Bhajan Dass also claimed ownership of the goods loaded in the vehicle. Learned Motor Accident Claims Tribunal framed four issues in each of the petitions. It is only issue No.3 as settled which would be relevant for the purpose of disposing of this appeal as the appellant pleads that it is exonerated from its liability because the deceased were traveling as unauthorized and gratuitous passengers. Reliance was placed on the judgment of the Supreme Court in National Insurance Co. Ltd. Versus Cholleti Bharatamma and others. (2008) 1 SCC 423. Issue No.3 as settled in all petitions and disposed of is as under:- 3 “Whether the vehicle involved in the accident was being plied in contravention with the terms and conditions of the insurance policy and also the provisions contained under the Motor Vehicles Act and the rules framed there under? OPR-2” While deciding this issue, learned Tribunal considered the reply filed by the Insurance Company and the evidence on record. The first ground raised was that the vehicle was being plied in contravention of the terms and conditions of the insurance policy, the driver did not possess a valid and effective driving license at the time of accident. It was not disputed that the truck in question was insured vide Ext.RW4/A. Learned Tribunal held that no evidence was produced by the Insurance Company to show that the driving license was fake as alleged. On the question of whether the deceased were traveling as gratuitous passengers, the learned Tribunal placed reliance on not only the oral evidence of the witnesses but report Mark A dated 10.9.1996 prepared by Shri Umesh Kumar Sood, Surveyor cum Investigator appointed by the Insurance Company itself. The report concluded that deceased were occupying the vehicle as owners of the goods. The report is proved on record by RW2 Umesh Kumar Sood. It is strange that now the Insurance Company has submitted that deceased were gratuitous passengers. It is well settled that a party in possession of best evidence and produced the same before the Court irrespective of the burden and onus. See Gopal Krishnaji Ketkar Versus Mohamed Haji Latif and others, AIR 1968 Supreme Court 1413. This report emanates from the appellant and cannot be discarded even though it is marked. The learned Motor Accident Claims Tribunal has relied upon this document and has committed no illegality. I do not see any reason to upset the judgment of learned Motor Accident Claims Tribunal. On the other submission raised that there is no evidence on record how much amount was paid for the carriage of goods, this is insignificant argument addressed by the Insurance Company. The driver and the persons traveling 4 alongwith goods as their owners have died in the accident. The receipt etc. if issued would have been in their person but considering the impact of the accident that is to say that the truck had rolled down 400 feet deep gorge it is possible that the papers could have been lost. PWs 5 and 9 have clearly stated that the deceased were traveling in the vehicle alongwith goods as their owners. The goods were to be used in the marriage of the one of the deceased. I do not find anything from the record to the contrary to establish that the deceased were in fact traveling as gratuitous passengers. No other point has been urged before me. In view of the facts and circumstances of the case, these appeals are dismissed. The judgments passed by learned Motor Accident Claims Tribunal are affirmed. There shall be no order as to cost. June 17, 2008 (Dev Darshan Sud), (ms) Judge