FAO No.1359 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1359 of 1989 Date of decision 29.4.2010. The New India Assurance Company Ltd. ...... Appellant. versus Smt. Shanti and others ...... Respondents. CORAM :-HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. L.M.Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. S.S.Virk, Advocate for respondent Nos.5 to 7. K.C.PURI. J. The instant appeal has been directed by the appellant- Insurance Company against the award dated 28.7.1989 passed by Shri T.P.Garg, learned Motor Accident Claims Tribunal, Kurukshetra for setting aside the same and that the appellant may be absolved from its liability. Briefly stated the case of the claimants is that on 28.3.1988 Ram Khilawan deceased was standing on one side of the road in the area of Ladwa along with his father Maiku Ram. At about 5.00p.m., truck No.HRL -371 passed on the way. On their request, the driver gave lift to them in the said truck, which was loaded with boulders FAO No.1359 of 1989 2 (stones). When the truck rushed near village Niwarsi, another truck loaded with sugarcane came from Pipli side. Oma alias Om Parkash driver of truck No.HRL-371, who was driving the truck rashly and negligently applied brakes all of a sudden, as a result of which Ram Khilawan, who was sitting on the truck fell down, received injuries and became unconscious. The truck came to a half on which Ram Khilawan was removed to Civil Hospital Ladwa in a serious condition. From there he was shifted to PGI, Chandigarh where he died on 30.3.1988. It is alleged that Ram Khilawan died due to rash and negligent driving of truck No.HRL-371 by Oma respondent. A criminal case was registered against the driver of the truck on the statement of Maiku Ram. The truck is stated to be owned by Gautam Dutt respondent No.2 and is Insured with M/s New India Assurance Company respondent No.3. A sum of Rs.Two lacs has been claimed by way of compensation. The respondents have contested the petition. Mahesh Kumar respondent No.4 is the joint owner of the truck along with Gautam Dutt respondent No.2. Oma driver and Gautam Dutt co-owner of the truck have filed a joint written statement, which was subsequently adopted by Mahesh Kumar co-owner of the truck as well. They have denied all the averments made in the petition. It has inter alia been pleaded that the accident took place due to the negligence of another truck, which was coming from Pipli side. It was, however, contended that the deceased was employed with Gautam Dutt respondent No.2. The Insurance Company in its separate written statement FAO No.1359 of 1989 3 has pleaded that the driver of the truck did not have a valid driving licence. It was admitted that the driver of the truck gave lift to the deceased and Maiku Ram and that the deceased fell down from the truck and died. The deceased was stated to be neither cleaner nor employee of the truck owner and, therefore, the liability of the Insurance Company was denied. It was inter alia pleaded that the deceased died on account of his own fault. Finally it is alleged that since the deceased fell down from the truck on account of his own fault, his dependents were not entitled to any account by way of compensation. On the pleadings of the parties, the following issues were framed :- 1. Whether Ram Khilawan had died in an accident caused due to rash, negligent and careless driving of truck No.HRL-371 by first respondent Om Parkash alias Oma ? OPP 2. If Issue No.1 is proved, whether the claimants are entitled to any compensation ? If so, its quantum and against whom ? OPP 3. Relief. The parties have led their respective evidence in support of their respective case. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.80,000/- as compensation along with interest @ 12% per annum from the date of filing the petition till its realization. The Insurance Company was held liable to pay the compensation amount. FAO No.1359 of 1989 4 Feeling dis-satisfied with the aforesaid award, appellant- The New India Assurance Company Ltd. has filed the instant appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. Shri L.M.Suri learned Senior Counsel for the appellant- Insurance Company has submitted that the claimant in para No.24 claim petition has pleaded that deceased Ram Khilawan was standing by the side of the Ladwa-Pipli road. At about 5.00p.m., truck No.HRL -371 passed away and at their request, the driver-respondent No.1 namely Oma alias Om Parkash gave a lift to the deceased as well as Maiku Ram. There were stones in the truck. When the truck reached near village Niwarsi, another truck loaded with sugarcane sticks came from Pipli side. Respondent No.1 was driving the truck rashly and negligently applied brakes all of a sudden, as a result of which Ram Khilawan, fell down and later on succumbed to his injuries. So from the pleadings of the claimant it is crystal clear that the deceased was a gratuitous passenger in a goods vehicle. Later on the claimant has changed the stand and has stated that deceased Ram Khilawan was working on brick-kiln for preparing bricks and was travelling in the truck in question. On that account Om Parkash respondent has also taken a stand that Ram Khilawan was working as a labourer and was doing the work of loading and unloading the stones. In authority Oriental Insurance Co. Ltd. vs. Gurdev Kaur reported in 1967 ACJ 158 , the Full Bench of Punjab and Haryana High Court has held that Insurance Company is not liable where there is a FAO No.1359 of 1989 5 death of a passenger in a goods vehicle. It has been further laid down in the said authority that even if the owner of the goods carried in the goods vehicle died in that case also the Insurance Company is not liable. So, the finding of the Tribunal that deceased was a labourer and was travelling in the truck is liable to be set aside and it is requested that insurance company be absolved of the liability. In reply to the above noted submissions, the learned counsel for the claimants contended that deceased was a labourer and was travelling in the vehicle to do the labour work i.e. loading or unloading of stones which were loaded in the truck in question. The accident has taken place due to rash and negligent driving of respondent No.1. So, the learned trial Court has rightly held that all the respondents are jointly and severally liable to pay the compensation amount. To support this contention learned counsel for the claimants has relied upon authority New India Assurance Co,Ltd. vs. Usha Rani and others 1996 ACJ 489, Oriental Insurance Co. Ltd. vs. Puni Devi and others 1995 ACJ 486 (Division Bench of Himachal Pradesh High Court), Partap Singh vs. National Insurance Co. Ltd. & Others 1998 ACJ 309 (Punjab and Haryana High Court). The most important point for determination in the present appeal is whether the finding of the Tribunal to the effect that deceased was travelling as a labourer to unload the stones call for any interference or not ? The answer to that question is in negative. The learned counsel for the appellant wants to make out a FAO No.1359 of 1989 6 capital from the pleading of the claimants in paragraph No.24 of the claim petition wherein it is mentioned that deceased and Maiku Ram took a lift in the truck in question. Maiku Ram is the author of the FIR. The assertion in paragraph No. 24 seems to have been made by the claimants by relying upon contents of the FIR. The claimant while appearing as her own witness has stated that deceased was working as a labourer. Om Parkash respondent has also stated while appearing as his own witness that deceased was doing the work of labourer for unloading the stones. It is not disputed during the course of arguments that if the deceased is proved to be a labourer in that case the Insurance company is liable. So far as the of authority Gurdev Kaur's case (supra) is concerned that authority is in respect of passenger travelling in a goods vehicle carrying his own goods. There is no such allegation in the evidence produced by the claimants. So, the authority Gurdev Kaur's case(supra) is distinguishable. In authority Usha Rani's case (supra), it has been held that where the Insurance Company fails to prove that the deceased was gratuitous passenger in that case the Insurance Company is liable to pay the compensation. There is no allegation of gratutious passengers in the present case. In authority Oriental Insurance Co. Ltd. vs. Puni Devi and others' case (supra) a Division Bench of Himachal Pradesh High Court held that where the passengers are engaged in loading or unloading of goods in that case the Insurance Company is liable. In authority Partap Singh's case (supra) person engaged on FAO No.1359 of 1989 7 daily wages under oral contract by the owner of the truck for doing casual labour work for loading or unloading received injuries while travelling as a passenger in the goods vehicle, Insurance Company cannot be absolved from the liability to pay the compensation. So in view of the above discussion, the appeal preferred by the Insurance Company is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April 29th , 2010 sv