FAO No.2876 of 2008(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... FAO No.2876 of 2008(O&M) Pankaj Kumar ... Appellant VERSUS Smt.Meena and others ... Respondents and FAO No.2877 of 2008(O&M) Pankaj Kumar ... Appellant VERSUS Bohti Devi and others ... Respondents Decided on : November 09, 2009 CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.A.P.Bhandari, Advocate for the Appellant. Mr.Krishan Singh, Advocate for respondent Gulab Singh. Ms.Vandana Malhotra, Advocate for respondent – Insurance Company. A.N.JINDAL, J.- This judgment shall dispose of two appeals i.e. FAO Nos.2876 and 2877 of 2008, arising out of the award dated 11.1.2008, passed by Motor Accident Claims Tribunal, Kaithal, vide which claimant – respondents No.1 (in FAO No.2876 of 2008) was awarded compensation to the tune of Rs.5,16,000/- on account of death of her husband Sabeer @ FAO No.2876 of 2008(O&M) [ 2 ] Haseeb, whereas, claimants – respondents No.1 to 6 (in FAO No.2877) were awarded compensation to the tune of Rs.4,83,000/- on account of the death of Pitamber, in a motor vehicle accident, against Gulab Singh (driver), Pankaj Kumar (owner) and Oriental Insurance Company, insurer of the offending vehicle i.e. TATA 407 bearing Reg.No.HR64-0027. However, liberty was given to the Insurance Company to recover the amount of compensation together with cost and interest from Pankaj Kumar (insured – appellant) Through the instant appeals, appellant Pankaj Kumar, who is the owner of the offending vehicle has sought to fasten the liability upon the Insurance Company. The brief background of the case is that on 19.6.2006 at about 11.00 PM, deceased Pitamber and Haseeb along with other companions after loading the bags of the mangoes in the offending vehicle, sat over the same. Gulab Singh – respondent, while driving the said vehicle started for Kaithal Mandi. On the way, some other people also boarded the truck along their fruits, who sat over the fruits in the body of the said vehicle. After crossing Radaur, the respondent driver started driving the vehicle in a rash and negligent manner and he did not respond to the requests made by the people boarding the truck. On 20.6.2006, at about 4.30 AM, when they reached near village Kathwar, on the Kaithal and Geong intervening road, then the driver while driving the truck rashly and negligently gave a sudden cut, as a result of which he lost the control and the vehicle struck against the standing trees and turned turtle, due to which deceased Haseeb, Pitamber and one Ram Avtar succumbed to the injuries. FAO No.2876 of 2008(O&M) [ 3 ] Bohti Devi, etc, respondents – claimants filed claim petition on account of the death of Pitamber, whereas, Meena respondent – claimant sought compensation on account of the death of Haseeb. Both the claim petitions were contested by respondents. They denied if any such accident had taken place. The Insurance Company also took some preliminary objections, inter-alia, that the petitions are not maintainable and it could not be fastened with liability to pay the compensation or indemnify the appellant, because the deceased were travelling in violation of the terms and conditions of the Insurance Policy. It was also contended that the petitions have been filed on the basis of the false and concocted facts, in order to raise the claim. From the pleadings of the parties, the Tribunal vide order dated 4.10.2007 framed the following issues:- “1. Whether the accident resulting into the deaths of Pitamber and Haseeb took place on 19.11.2006 at about 11 PM due to rash and negligent driving of Tata 407 bearing No.HR64-0027 by respondent No.1? OPP. 2. If issue No.1 is proved, whether the claimants are entitled to claim compensation, if so to what amount and from whom? OPP 3. Whether respondent No.1 was not holding valid or effective driving licence at the time of alleged accident OPR-3 4. Relief.” Both the parties led evidence. The claimants examined FAO No.2876 of 2008(O&M) [ 4 ] Satwinder Singh (PW1), Bohti Devi - claimant appeared as PW2 and Meena – claimant appeared as PW3 and tendered into evidence the bills mark A1 to A55, photocopies of passbook Ex.P1, FIR Ex.P2, the post mortem report of deceased Pitamber mark A56, Privar Register from Government of Uttar Pradesh Mark A57, residential address of deceased Haseeb MarkA58, receipt mark A59, cutting of newspaper mark A60 and the post mortem report of deceased Haseeb Ex.P3. On the other hand, the appellant Pankaj examined himself as RW1 and also tendered in evidence, copies of registration certificate Ex.R1, insurance cover note Ex.R2, driving licence Ex.R3, permit Ex.R4 and the Insurance Policy Ex.R5. The Tribunal while deciding issue No.1 observed that the accident took place on account of the rash and negligent driving on the part of Gulab Singh – respondent (driver of the offending vehicle). While deciding issue No.2, the Tribunal observed that both Haseeb and Pitamber were gratuitous passengers, therefore, were not covered by the insurance policy. Consequently, the Tribunal held the appellant as well as respondent driver liable to pay the compensation in the aforesaid terms, whereas, the Insurance Company – respondent was exonerated. Aggrieved against the judgment, the appellant i.e. owner of the offending vehicle has come up in appeal. The prime question to be determined in this case is “whether Pitamber and Haseeb, boarding the offending vehicle were gratuitous passengers or they being the employees and labourers of the insured – appellant, were covered by the Insurance Policy (Ex.P5) and the cover note FAO No.2876 of 2008(O&M) [ 5 ] (Ex.R1)?” Counsel for the respondent – Insurance Company has argued that the offending vehicle was being driven in contravention of the terms and conditions of the Insurance Policy as the deceased and other occupants were gratuitous passengers in the said vehicle and none of the deceased was either driver or conductor or employee of the appellant. It was further argued that as per evidence, the deceased as well as others were mango sellers and they used to collect mangoes from Uttar Pradesh and bring the same at Kaithal for sale. He also argued that the driver – respondent stopped the vehicle on the way, from where Haseeb son of Shabbir and few other persons took the lift along with their respective boxes and baskets of mangoes. The deceased as also the other occupants of the offending vehicle were carrying the mangoes for sale at Kaithal and as such, they were gratuitous passengers. Consequently, it would be inferred that the vehicle was being driven in violation of the terms and conditions of the insurance policy, as such, the Insurance Company was not liable to indemnify the appellant as held by the Apex Court in National Insurance Co.Ltd. vs. Cholleti Bharatamma and others, 2008(1) Civil Court Cases 105(SC) and National Insurance Com. Ltd. vs. Bomithi Subbhayamma and others, 2005 ACJ 721 and the full Bench decision of the Apex Court in New India Assurance Co. Ltd. vs. Asha Rani and others, 2003(1) PLR 1 and United India Insurance Co.Ltd. vs. Hiralal and others, 2007 ACJ 1398. Controverting the above argument, counsel for the appellant urged that the deceased and other occupants of the offending vehicle were FAO No.2876 of 2008(O&M) [ 6 ] the labourers and the vehicle was being used for carrying mangoes from Saharanpur for sale in Kaithal by the appellant, and as such, the vehicle was not being driven in contravention of the terms and conditions of the Insurance Policy and the deceased and other occupants of the said vehicle were not gratuitous passengers, rather they were labourers employed by the appellant for loading and unloading the mangoes. It was also argued that the appellant having paid extra premium to the respondent – Insurance Company as shown in the cover note Ex.R2 and the insurance policy Ex.R5 for three labourers in addition to the driver and the conductor in the terms of Section 9 of India Motor Tariff endorsement, as such, the deceased being the labourers were certainly covered under the insurance policy and the Insurance Company was liable to indemnify the appellant as well as the claimants. Having considered the rival submissions, I am not in agreement with the counsel for the appellant as no evidence is brought on record to show that the deceased Pitamber and Haseeb were ever employed by him, rather the FIR (Ex.P2), the first version of the accident makes is clear that deceased Pitamber along with few others boarded the offending vehicle from Uttar Pradesh, while deceased Haseeb boarded the same from village Sherpur along with few others. Even in the written statement filed by the appellant, it was never pleaded that the deceased persons were the employees of the appellant. It appears that on account of judgment delivered by the Hon'ble Apex Court, the appellant while molding his statement testified that the deceased were engaged by him as labourers on the offending truck, so as to cover them under the terms and conditions of FAO No.2876 of 2008(O&M) [ 7 ] the Insurance Policy. In view of the above, it has been held by the Tribunal that both the deceased were not the labourers on the offending vehicle, rather they were owners of their respective mango boxes/baskets and they boarded the vehicle from their native villages for sale of mangoes at Kaithal and thus, could be termed as gratuitous passengers. Consequently, it would not be unsafe to observe that the offending vehicle was being driven in contravention of the terms and conditions of the Insurance Policy, as such, the liability to reimburse the claimants on account of the death of Pitamber and Haseeb would be of the appellant (owner) and respondent (driver), and the respondent Insurance Company cannot be held liable for the same. Having scrutinised the impugned award, it transpires that it has elaborately discussed with regard to the status of the deceased in the truck and it is also apparently clear that the Insurance Policy, issued to the appellant did not cover the deceased or the claim raised by their dependents. As such, the appellant as well as respondent Gulab Singh were jointly and severally liable to pay the compensation. In case of any contravention of the policy, the Insurance Company could be directed to make the payment and would be at liberty to recover the same from the insured (appellant in the present case). Thus, the direction of the Tribunal giving liberty to the Insurance Company to recover the amount of compensation together with costs and interest from the appellant, does not require interference. Hence, both the appeals are dismissed. November 09, 2009 ( A.N.JINDAL ) `gian' JUDGE