1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Misc. Appeal No.690/2006 (Harsahay Sharma & Anr. Vs. Smt. Rukma Devi & Ors.) Date of Order 08.08.2008 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Sudesh Bansal, for the appellant. Mr.Gaurav Gupta, for respondent Nos. 1 to 6. None for respondent No.7-Insurance Company. The owner and the driver, appellant Nos.1 & 2 respectively, have challenged the award dated 18.10.2005 passed by the learned Judge, Motor Accidents Claim Tribunal, Chomu, Distt. Jaipur, whereby, the learned Tribunal has granted a compensation of Rs.3,40,000/- for the death of Bherulal to the claimant- respondents Nos. 1 to 6. The brief facts of the case are that on 06.05.2004 Bhairulal Meena was traveling in a Pick-up Jeep, bearing Registration No.RJ-14 2G-2831, coming from Ringus Dist. Sikar to his village Daulatpur after having delivered the goods, which belonged to him, at Ringus. Around 8.30 PM at night while the Jeep was traveling between Sikar and Chomu- 2 Chandwaji Road, the driver of the jeep, appellant No.2, drove the Jeep in a rash and negligent manner. Consequently, the Pickup Jeep went of road and hit a tree. Resultantly, Bhairu Lal suffered grievous injuries and finally scummed to his injuries. Since, the claimants were dependent upon Bhairu Lal, they filed a claim petition before the learned Tribunal. In order to substantiate the case, they examined three witnesses and submitted twenty-eight documents. The appellants did not appear before the learned Tribunal. Therefore, the case was decided against them ex-parte. The Insurance Company examined only a single witness and submitted a single document. After going through the oral and documentary evidence, the learned Tribunal exonerated the Insurance Company and directed that the compensation should be paid by appellant Nos.1 & 2 severely and jointly. Mr. Sudesh Bansal, learned counsel for the appellants has raised the following contentions before this Court : Firstly, that 3 according to the claimant-defendant No.1, Smt. Rukma Devi, her husband Bhairu Lal was carrying his own goods in the Pickup Jeep and had gone to Ringus to deliver the goods. After having delivered the goods, he was returning back to his village Daulatpura, when the accident took place. Since, Bhairulal had gone to deliver his own goods, he was traveling in the capacity of “the owner of the goods”. Thus, according to Section 147 of the Motor Vehicles Act, 1988 (for short 'the Act'), Bhairulal would fall within the definition of the word 'third party'. Therefore, the Insurance Company should have been held liable for paying the compensation amount, instead of the appellants. Secondly, even if, the accident had occurred after the goods were delivered, even then Bhairulal would continue to be in the capacity of “the owner of the goods”. Therefore, he would be covered under Section 147 of the Act. Thirdly, in the alternate, in case Bhairulal is not seen as the owner of the goods, then while returning he would surely fall under the definition of “non-fare 4 paying passenger”. Hence, even then the Insurance Company would be liable for payment of the compensation amount. Fourthly, the learned Tribunal has wrongly concluded that Bhairulal was traveling as a passenger in a goods vehicle. The learned Tribunal has ignored the testimony of claimant-respondent No.1. Therefore, the learned Tribunal has erred in exonerating the Insurance Company. Lastly, there is no evidence on record to show that the breach of policy was so fundamental as to make the appellants liable for the payment of the compensation amount. On the other hand, Mr. Gaurav Gupta, the learned counsel for the respondent Nos.1 to 6, has contended that the contest is between the owner and driver, on the one hand, and the Insurance Company on the other hand. Hence, he does not have much to submit except that firstly, according to the claimant-respondent No.1, her husband was returning back after having delivered the goods at Ringus. Secondly, the said statement has not been demolished in her cross- 5 examination. Thirdly, there is no evidence to show as to who had lodged the FIR. Therefore, the statement made in the FIR that the Bhairulal was traveling in the goods vehicle for the purpose of attending ceremony in the family is unproven. Thus, he has supported the contentions raised by the learned counsel for the appellants. Although notice have been served upon the Insurance Company, but no one has appeared today to assist this Court. Therefore, this Court does not have the benefit of any assistance from the side of the Insurance Company. We have heard the learned counsel for the parties and perused the impugned award and have examined the record. According to Smt. Rukma Devi (AW-1), her husband had gone to Ringus to deliver his own goods and was returning back to his village after unloading them. This statement of hers has not been demolished in the cross- 6 examination. Thus, there is no reason for disbelieving her testimony on this point. Furthermore, the person, who had lodged the FIR, has not been produced by the Insurance Company to substantiate their case that Bhairulal was traveling in a gratuitous passenger. Moreover although, in the FIR it was alleged that Bhairulal was traveling with his relatives in order to attend a ceremony within the family, but for the FIR, no other evidence has been produced on record to substantiate the version given in the FIR. Since, a FIR is not a substantive piece of evidence, the same cannot be read in favour of the Insurance Company. In these circumstances, this Court has no option but reject the version given in the FIR. This Court accepts the testimony of Smt. Rukma Devi and holds that Bairulal was traveling in the Jeep with his goods and had delivered the good at Ringus. The word 'owner' has not been defined in the Act. Bhairulal had left his village having his goods for the purpose of 7 delivering them at Ringus. Thus, while traveling to Ringus, he was traveling in the capacity of “the owner of the goods”. Merely because he was returning back to his village after having delivered the said goods, he does not transform his character from “the owner of the good” to “a gratuitous passenger”. For the purpose of Motor Vehicle Act, he would be deemed to continue in the capacity of “the owner of the goods” even while returning after delivering the goods. In case the definition of 'owner' is not extended given a liberal interpretation, it would create a very anomalous situation. Every person, who initially starts in the capacity of “the owner”, would find himself transformed into the capacity of “a gratuitous passenger” after delivery of the goods. Since, the amendment made in Section 147 of the Act has beneficially purpose, the word 'owner' would have to be interpreted as including those class of persons, who have delivered the goods and are returning back home. Merely because they have sold the goods or delivered the goods, they do not denude 8 themselves of the capacity of “the owner of the goods”. Therefore, the learned Tribunal has wrongly held that merely because Bhairulal has delivered the goods, he stops being the owner of the goods, and metamorphosises himself into a gratuitous passenger. Thus, the first & second contentions raised by the learned counsel deserves to be accepted. As far as, the third contention is concerned, the owner of the Jeep would not have carried Bhairu Lal, along with his goods, without charging him a fare. Therefore, even while returning, he will continue be in the capacity of “fare paid passenger”. Hence, the contention that he should be considered to be traveling in the capacity of “a non-fare paying passenger” is unacceptable. Since, Bhairulal was traveling in the capacity of “the owner of the goods”, clearly he falls within the definition of “third party” as given under Section 147 of the Act. 9 Therefore, obviously the Insurance Company would be liable to pay the compensation to the claimants. Admittedly, the vehicle was insured as goods vehicle by the Insurance Company. As stated above, Bhairulal was traveling as the owner of the goods. Therefore, the question of breach of policy does not arise in the present case. Therefore, this Court need not consider whether the breach of policy was fundamental or otherwise. As stated above since, Bhairulal was traveling as the owner of the goods he is covered under Section 147 of the Act. Therefore, clearly the Insurance Company is liable for payment. For the reasons stated above, the appeal is, hereby, allowed and the part of the impugned award dated 18.10.2005 absolving the Insurance Company is set aside. The Insurance Company is directed to pay the compensation amount to the claimants. There shall be no order as to costs. (R.S.CHAUHAN)J. Manoj solanki/-