IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) No.:289/2004 Reserved on:24.7.2008 Decided on: 29.7.2008 Rai Singh and other …Appellants. Versus Gayatri Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondents : Mr. T.S. Chauhan, Advocate for respondents No. 1 to 3. Mr. J.S. Bagga, Advocate for respondent No.4. Rajiv Sharma, J. This FAO has been preferred against the award dated 1.7.2004 passed by the Motor Accident Claims Tribunal, Bilaspur in MAC Case No. 63 of 2002. The brief facts necessary for the disposal of this FAO are that on 31.7.2002, deceased Gian Dev was coming on a tractor bearing registration No.HP-23-6238 after unloading grass at village Manan. It is averred that near village Manan, the driver of the tractor, appellant No.2, 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 could not control the tractor due to fast speed and the same rolled down into a gorge and the deceased sustained fatal injuries resulting in his death on way to Civil Hospital, Ghumarwin. The age of the deceased was 25 years. His occupation was driver-cum-agriculturist. The appellants contested the claim petition by filing a detailed reply. Respondent No.4 also filed a separate reply. The sum and substance of the reply filed by the appellants before the Motor Accident Claims Tribunal was that deceased Gian Dev was walking on the road and the tractor rolled down due to mechanical defect over him. He applied the brakes but the tractor rolled down. The stand of respondent No.4 primarily was that the deceased was a gratuitous passenger and not covered under the insurance policy. The learned Motor Accident Claims Tribunal awarded a sum of Rs. 2,98,000/- along with interest @ 9% per annum in favour of the claimants. The learned Motor Accident Claims Tribunal has absolved respondent No.4 from its liability by holding that deceased Gian Dev was a gratuitous passenger. The liability was fastened on the appellants. Mr. G.D. Verma, Senior Advocate has strenuously argued that the findings recorded by the learned Motor Accident Claims Tribunal that the deceased was a gratuitous passenger are perverse and liable to be set aside. He also contended that there is overwhelming evidence on record to suggest that Gian Dev was not travelling on the tractor and in fact according to him, the tractor rolled down and deceased Gian Dev crushed under the tractor while he was walking on the road side. He further contended that the amount awarded by the learned Motor Accident Claims Tribunal is excessive as according to him the learned Motor Accident Claims Tribunal should have applied the multiplier of 11 taking into consideration the age of the deceased. 3 Mr. T.S. Chauhan, Advocate had strenuously argued that Gian Dev was travelling on the tractor and the deceased has not come under the tractor while walking on a road as submitted by Mr. G.D. Verma. He also contended that in the present appeal, the quantum has not been assailed and this argument cannot be raised by the learned counsel for the appellants. Mr. J.S. Bagga, Advocate has supported the award whereby according to him the learned Motor Accident Claims Tribunal has categorically opined that deceased was a gratuitous passenger. According to him, there was a breach of the terms and conditions of the insurance policy and the Insurance Company was not liable to indemnify the owner. I have heard the learned counsel for the parties and perused the record carefully. In order to appreciate the fact whether deceased Gian Dev was a gratuitous passenger or not, the Court has to go through the pleadings of the parties. In para 24 of the claim petition, there is a specific averment to the effect that deceased Gian Dev was sitting on the tractor driven by appellant No.2. In reply to this para, appellants No.1 and 2 have stated that Gian Dev was walking on the road and the tractor fell over him when appellant No.2 could not control the same. The Insurance Company has taken a specific defence that the deceased was a gratuitous passenger and the company was not liable to indemnify the owner. It is thus evident that the case as set out by the appellants is that deceased Gian Dev was not travelling on the tractor. PW-1 has stated that when the tractor was coming after loading the grass, it met with an accident near village Manan resulting in death of his son. In his cross- examination, he has stated that he was not aware whether his son was 4 sitting on the tractor or not, but according to him his son died in accident. PW-2 has seen appellant No.2 driving the tractor. He has deposed that the tractor was being driven in a high speed due to which it turned turtle resulting injuries to three persons, including Gian Dev. In his cross- examination, he has denied that Gian Dev was walking on the road and was not sitting on the tractor. RW-1 Pawan Kumar has stated that while he was driving the tractor, a jeep came from the opposite side and the light of the jeep dazzled him and consequently he could not control the tractor and applied the breaks. The tyre of the tractor came on the stone and the deceased Gian Dev was walking on the road. He has stated that deceased was not sitting in the tractor at the time of the accident. RW-2 Shankar Singh has stated that appellant No.2 was driving the tractor and it struck with deceased Gian Dev while he was walking on the road. In FIR Ex.PA dated 31.7.2002, it has been stated that on 31st July, 2002, the complainant, Gian Prakash, Pawan Kumar son of Balak Ram and Santosh Kumar son of Sh. Dandu Ram were sitting on the tractor and they were coming back to their houses. The tractor was driven by Pawan Kumar son of Sh. Balak Ram. The tractor met with an accident and Sh. Gian Prakash and Santosh Kumar fell from the tractor resulting injuries to them. It is thus evident that in view of the pleadings and the evidence led by the parties, more particularly, the statement of PW-2 read with the contents of Ex.PA, Sh. Gian Dev was travelling on the tractor and was not walking on the road as submitted by Mr. G.D. Verma. Statement of PW-2 and the contents of FIR Ex.PA are in conformity with the pleadings of the parties. The plea that Gian Dev was walking on the road at the time of accident cannot be believed and the finding recorded by the learned Motor Accident Claims Tribunal that Gian Dev was a gratuitous passenger, is upheld. Since Gian Dev was a gratuitous passenger, respondent No.4 5 was not liable to indemnify the owner. It is evident from the bare reading of the policy that only one passenger was covered under the policy. Mr. G.D. Verma had also contended that it was for the Insurance Company to prove that there was a breach of policy. This plea cannot be accepted in view of the stand of the claimants in the claim petition to the effect that Gian Dev was travelling on the tractor and this version has been supported by the statement of PW-2 and the contents of the FIR Ex.PA. In view of the statement of PW-2 read with Ex.PA, the statements of RW-1 and RW-2 cannot be accepted. Once Gian Dev has been proved to be travelling on a tractor, the Insurance Company was not further required to prove the breach of the terms and conditions of the policy. The plea of Mr. G.D. Verma that the learned Motor Accident Claims Tribunal has awarded the excessive amount cannot be accepted for the simple reason that no such ground has been taken in the present appeal. Consequently, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. July 29, 2008 (Rajiv Sharma ), J. *awasthi*