IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 510 of 2009 Date of decision: 9.5.2011 New India Assurance Company Limited ..Appellant. Versus Meera Devi and others. …Claimants. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the appellant: M/s. K.D. Sood and Sanjeev Sood, Advocates. For the respondents: Mr. Ramesh Sharma, Advocate for respondents No. 1 to 4. Mr. Romesh Verma, Advocate for respondents No. 5 and 6. _____________________________________________________ Deepak Gupta, J(oral). This appeal by the Insurance Company is directed against the award dated 6.8.2009 delivered by learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, which held the Insurance Company liable to pay the awarded amount. 2. The only question raised in the appeal is that the claimants have failed to prove that the deceased was travelling in the vehicle in question as owner of the goods. Mr. Sanjeev Sood, learned counsel for the Insurance Company submits that there is no pleading in the claim 2 petition that the deceased was owner of the goods. He has relied upon a decision of learned Single Judge in Oriental Insurance Co. Ltd. v. Maya and others, 2009 ACJ 2419 and urges that in the absence of any pleadings, the Insurance Company could not be held liable. 3. There is no doubt that in the claim petition there is no pleading that the deceased was travelling as owner of goods. As urged by Mr. Sanjeev Sood even in the FIR there is no mention of any goods being carried in the vehicle in question. However, the fact is that the owner and the driver of the vehicle in the reply had taken a specific plea that the vehicle which is a goods vehicle was hired by deceased Neel Mani from Shingla to Besri to carry his household goods, mattresses and angles iron. In fact, even in the reply of New India Assurance Company there is no specific defence taken that the deceased was travelling in the vehicle as gratuitous passenger. 4. Two witnesses PW-4 and PW-5 who are the eye witnesses have clearly stated that the deceased was travelling in the vehicle alongwith his goods. Though they have been cross-examined they have not changed their stand. The Insurance Company did not lead any evidence. No doubt, normally in the claim petition it should be stated as to in which capacity the deceased was travelling in the vehicle. However, there may be cases especially where the claimants were not present at the site, and may not know the exact 3 situation. The exact position was known only to the owner and driver who took specific plea that the deceased was travelling as an owner of the goods. It may be true, that in certain cases the owner and driver may take a false plea to pass the burden on to the Insurance Company. However, it cannot be said that the Insurance Company was unaware of this stand of the owner and driver. The Company had the opportunity to dispute this stand of the owner and the driver of the vehicle. Once evidence was led and prima facie material placed on record to show that the deceased was travelling as owner of the goods, in case the Insurance Company wanted to dispute this fact it should have lead some evidence in this behalf. Therefore, I find no merit in the appeal and the same is dismissed. CMP No. 253 of 2011 Since the appeal has been disposed of and applicant No.2 is going to be married, the amount falling to his share alongwith interest accrued thereon be released. As far as applicant No.1 is concerned, a sum of Rs.35,000/- out of her share alongwith interest accrued thereon be released, by remitting the same in their bank accounts, numbers whereof are mentioned in the application. The application stands disposed of. As far as Ms Lovely and Master Sudesh, are concerned sum of Rs.25,000/- each alongwith interest accrued thereon out of their share be released in their favour, 4 by remitting the same in their bank accounts, numbers whereof shall be supplied by the learned counsel in the Registry. The remaining amount falling to their share alongwith up to date interest shall be deposited in Fixed Deposit for three years. May 9, 2011 ( Deepak Gupta ) (vt) Judge