HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO(MVA) No.: 47 of 2004 Reserved on: 5.6.2004 Decided on: 8.7.2009 Oriental Insurance Company ………Appellant. Versus Parkash and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Jagjeet S.Bagga, Advocate. For respondent No.1: Mr.Avinash Jaryal, Advocate. For respondent No.2: Mr.Surinder Sharma, Advocate. For respondents No.3 & 4: Mr.Jagdish Thakur, vice Mr.N.K. Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act against the award passed by the learned Motor Accident Claims Tribunal, Chamba, on 4.12.2003, vide which respondent No.1 Hamma Ram (now deceased) and respondent No.2 were granted compensation under Section 166 of the Motor Vehicles Act as against respondent No.4 and the appellant. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that a claim petition was filed by petitioner Hamma Ram and Smt.Tilko for the grant of compensation on account of the death of their son Krishan Chand, aged about 25 years, in an accident. It was alleged that the deceased was going in vehicle No.HP 46 0513 (Tempo) and the same met with an accident due to rash or negligent driving of respondent No.3 Dina Nath, driver of the vehicle. The said Krishan Chand died in that accident. It was alleged that the deceased was working as a Beldar and was earning Rs.3,000/- per month and the claimants, being his parents and dependant upon him, had claimed compensation to the extent of Rs.10.00 lacs. In reply by respondents No.1 and 2, the owner and the driver of the vehicle, they did not deny that the deceased was going in the vehicle or that the accident had taken place. They, however, pleaded that the deceased’s monthly income was only Rs.1,800/- and not Rs.3,000/-, as alleged in the petition. In reply by the appellant/Insurance Company as respondent No.3 in the claim petition, they denied all the allegations. They also took up preliminary objection that the driver was not holding a valid license. They also took up the plea that the vehicle was being plied in contravention of the insurance policy. They even pleaded that the vehicle involved in the accident was not insured with their Company. The allegations in regard to income of the deceased were also denied by the Insurance Company. - 3 - On the pleadings of the parties, the learned Tribunal framed issues and granted compensation in favour of the claimants, as detailed above. The present appeal has been filed by the appellant/Insurance Company on two grounds. Firstly that the income of the deceased has been wrongly assessed at Rs.1,500/- and secondly, that the deceased was a gratuitous passenger and therefore, he is not covered by the insurance policy and as such the Insurance Company is not liable. On the other hand, the learned counsel for the respondents had supported the impugned award for the reasons recorded therein. On appraisal of the record of the case, it is clear that the income of the deceased was alleged as Rs.3,000/- per month while working as a labourer. Respondents No.1 and 2, owner and driver of the said vehicle, pleaded that the income of the deceased was only Rs.1,800/- per month. The Insurance Company had denied the allegations in regard to the income of the deceased. A perusal of the award shows that the learned Tribunal had concluded that since the deceased was not having any fixed income as he was working as a Beldar, the learned Tribunal observed that now a days even a labourer is getting Rs.75/- per day and it was held that taking the daily loss at Rs.50/- and monthly loss at Rs.1500/-, the annual loss was assessed at Rs.18,000/-. The learned Tribunal had taken the monthly income of the deceased at Rs.2,250/- and monthly loss of Rs.1,500/-, which, by no stretch of - 4 - imagination, can be said to be excessive and it calls for no interference by this Court. In regard to the multiplier, the learned Tribunal had applied the multiplier of 10 keeping in view the age of the parents as 58 years and 55 years. No arguments were advanced in regard to the multiplier and no case law was cited that the multiplier was excessive. Therefore, the compensation, by applying the multiplier of 10, cannot be said to be excessive and the same does not call for an interference by this Court. On the plea that the deceased was traveling as a gratuitous passenger, the learned counsel for the appellant had relied upon the decision of the Apex Court in New India Assurance Company Ltd. Versus Asha Rani and others, AIR 2003 Supreme Court 607. It was held in that case while dealing with the liability of insurer prior to the amendment of 1994 that in case the owner of the goods or its authorized representative was carried in a goods vehicle, the insurer was not liable for paying compensation. In this decision, the observations have been made by their Lordships in regard to the accidents occurring prior to 1994, but in the present case, the accident in question had taken place in the year 2001 and the amended Act applies to the present facts. The learned counsel for the respondents No.3 and 4, i.e. the driver and the owner, had relied upon the following decisions to substantiate his submission that the - 5 - Insurance Company was liable to pay the compensation since additional payment was made for two passengers. The decision in National Insurance Co.Ltd. versus Cholleti Bharatamma and others, (2008) 1 Supreme Court Cases 423, was relied upon. It was observed that the words “injury to any person” in Section 147(1)(b) would only mean a third party and not a passenger traveling in a goods carriage whether gratuitous or otherwise. Reliance was also placed upon the decision in Narvinva V. Kamat and another versus Alfredo Antonio Doe Martins and others, AIR 1985 Supreme Court 1281. It was held that there was a plea of the Insurance Company that there was breach of term of policy in that the driver of insured vehicle did not have valid license. It was held that the burden to prove the same is on the Insurance Company. Reliance was also placed upon the decision of this Court in Oriental Insurance Co.Ltd. versus Gian Chand & others, Latest HLJ 2002 (HP) 1, wherein it was held that the breach of the terms of the insurance policy has to be proved by leading cogent evidence. Merely tendering of photostat copies of the documents and marking of documents as exhibit will not dispense with its proof. On appraisal of the above case law and the facts of the case, I am of the opinion, for the reasons given below, that there is no merit in the plea raised by the Insurance Company. Neither the plea has been properly - 6 - taken nor substantiated and, therefore, there is no merit in the same. A perusal of the reply filed by respondent No.3, which has been mentioned above, clearly shows that the Insurance Company never pleaded as to what contravention of the terms and conditions of the insurance policy was there on behalf of the owner. The only objection taken in the preliminary objection No.2 was that the vehicle was being plied in contravention of the terms of the insurance policy. The fact that the vehicle was insured with respondent No.3 i.e. present appellant was also denied, but it was never pleaded that this denial was due to lack of particulars and better particulars could have been sought by the Insurance Company. Thus, it is clear that respondent No.3/Insurance Company only pleaded that the vehicle was being plied in contravention of the terms of the insurance policy, but nowhere pleaded that the deceased was a gratuitous passenger, was not going in the vehicle as an authorized representative of the goods being carried in the vehicle or in what capacity he was traveling in the vehicle. To substantiate their plea, respondent No.3/ Insurance Company also examined RW-1 Gian Chand, their Branch Manager, who simply stated that no passengers could sit in the vehicle as per Ext.R-2 and the vehicle was being plied in contravention of the insurance policy. He did not state as to what was the contravention, as to whether the deceased was a gratuitous passenger or was not carrying his - 7 - goods. The simple statement made was that no passengers could sit in the vehicle and the vehicle was being plied in contravention of the insurance policy. However, in cross examination, he clearly admitted that 7 persons were insured including the driver, conductor and five labourers. His own statement was sufficient to demolish the plea taken by the appellant which shows that the vehicle was insured for 7 persons. No terms and conditions of the insurance policy were reiterated by him in the Court to show that the vehicle was not permitted to carry any other person except the driver and the conductor. He also did not state that no premium was charged for any other person except the driver and the conductor. A perusal of the policy Ext.R-3 at page 3 shows that the vehicle was permitted to take six passengers other than driver. Thus, there was nothing in the evidence led by the Insurance Company as to what contravention was there and how the deceased was not entitled to travel in the vehicle or there was any violation of the terms and conditions of the insurance policy. Therefore, there is no merit in the plea raised by the learned counsel for the appellant which is devoid of any force and I, therefore, repel the same. The appeal filed by the appellant is dismissed accordingly, alongwith costs. July 8, 2009. (V.K. Ahuja), (TILAK) Judge.