HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 203 of 2004 Reserved on: 18.6.2010 Decided on: 24.6.2010 New India Assurance Co.Ltd. ………Appellant. Versus Raksha Devi and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.K.D. Sood, Advocate. For respondents No.3&4: Mr.R.K. Gautam, Senior Advocate, with Mr.Mehar Chand, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) against the award passed by the learned Motor Accident Claims Tribunal, Bilaspur, H.P., dated 10.11.2003, vide which the claim petition filed by respondents No.1 and 2, as against respondents No.3 and 4, being the driver and the owner of the vehicle, respectively, and as against the present appellant being the insurer, which was impleaded as respondent No.3 in the claim petition, was allowed and a sum of Rs.65,000/- was awarded in favour of the claimants, which was payable by the appellant/Insurance Company. _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated the facts of the case are that a claim petition under Section 166 of the Act was filed by the present respondents No.1 and 2 (hereinafter also referred to as the claimants/petitioners) for the grant of compensation. It was alleged by the claimants that Raj Kumar (deceased) was of the age of 12 years and was a student of 7th standard of the Government School. It was alleged that on 8.3.2001, at about 4.45 p.m., said Raj Kumar had been on way from Village Pulachar to Village Chhamb Bhujan and he boarded tractor No.PB-07-170. Respondent No.3 Dharam Pal was the driver of the said tractor and the tractor fell down on the link road due to rash or negligent driving of respondent No.3. It was further alleged Respondent No.4, owner of the tractor, was vicariously liable for the rash or negligent driving of his driver. It was also alleged that the appellant was the insurer of the vehicle and had given comprehensive insurance to the tractor and as such it was liable to indemnify respondents No.1 and 2. 3. Respondents No.1 and 2, the driver and the owner, admitted the ownership of the tractor of respondent No.2 and that respondent No.1 had been driving the tractor. However, it was pleaded that the deceased had not boarded the tractor and the tractor loaded with sand and grit had fallen on the highway as a result of sudden mechanical break down. Some boys including the deceased were grazing their cattle below the link road. Raj Kumar and some other - 3 - boys suffered injuries as a result of fall of the tractor and respondents No.1 and 2, therefore, are not liable. 4. Respondent No.3 (present appellant) had provided comprehensive insurance to the said tractor. Respondent No.3 pleaded that respondent No.1 was not having a valid and effective driving license at the time of accident. The deceased was an unauthorized and gratuitous passenger and as such there was contravention of the terms and conditions of insurance policy and thus, it was not liable. 5. On the pleadings of the parties, the following issues were settled by the learned Tribunal: 1. Whether the deceased Raj Kumar had died as a result of rash and negligent driving of tractor No.PB-07-170 by respondent No.1 Dharam Pal, as alleged? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP. 3. Whether the claim petition is not maintainable? OPR-3 4. Whether the respondent No.1 Dharam Pal, driver of Tractor No.PB-07-170 did not have valid and effective driving license on the date of accident, as alleged? OPR-3 5. Whether the vehicle was without insurance or registration certificate on the date of accident, as alleged? OPR-3 6. Whether deceased was travelling as an unauthorized passenger? OPR-3 7. Relief. 6. The parties led their evidence and the learned Tribunal, vide its impugned award, decided all the issues in favour of the petitioners and against the - 4 - respondents and awarded a sum of Rs.65,000/- payable by respondent No.3 Insurance Company. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that since the deceased was a gratuitous passenger and as such was travelling in the vehicle not meant for carrying passengers and therefore, the Insurance Company was not liable. It was also submitted that there were breach of the terms and conditions of the Insurance Policy Ext.RX and the unauthorized passengers were not covered and as such there was breach of the terms of the policy and the Insaurance Company was not liable. 9. To substantiate his submissions, the learned counsel for the appellant had relied upon the decision in New India Assurance Co.Ltd. versus Vedwati and others, JT 2007 (4) SC 28. In the said case, the death of passenger travelling in goods carrier took place. The vehicle in question was a tractor meant for agricultural work and not for carrying passengers. It was held that the provisions of the Motor Vehicles Act do not enjoin any statutory liability on the owner of the vehicle to get the vehicle insured for any passenger travelling in a goods carrier and, therefore, the appellant-insurer cannot be made liable for any compensation for the death of the passenger traveling in the tractor due to an accident. - 5 - 10. Another decision relied upon by the learned counsel for the appellant was in New India Assurance Co.Ltd. versus Durgi Devi and others, 2009 ACJ 1851, which shows that the labourer travelling on tractor sustained fatal injuries when the vehicle met with an accident. The Insurance company sought to avoid its liability on the ground that the policy shows that the premium was paid only to cover the risk of the driver and risk of labourer and passengers was not covered. Whether the Tribunal was justified in mulcting the liability of the Insurance company, it was held that the Insurance Company was not liable. 11. The next decision relied upon was in Sita Devi and others versus Dharambir and others, 2006 ACJ 2852, a perusal of which shows that the death of a passenger on tractor took place by falling down between the tractor and the trolley when the driver applied brakes. Seating capacity of the tractor including the driver was one. No passenger could be carried on tractor and the policy does not cover any passenger on tractor. The Insurance Company was held not liable to pay the compensation. 12. On the other hand, the learned counsel for respondents No.3 and 4 had supported the impugned award for the reasons given therein. 13. On appraisal of the claim petition filed by the petitioners, it is clear that they had alleged that the deceased was travelling in the vehicle in question. To support their assertions made in the petition, the - 6 - petitioners also examined PW-1 Sita Ram, one of the petitioners and father of the deceased, who stated that he learnt about the death of his son in an accident. He also stated that in this accident, two of the sons of his brother also died. He further stated that he does not know as to what the children were doing there. He tendered in evidence a copy of the FIR Ext.PW-1/A, which was lodged by one Sokha Ram, in which he alleged that the accident had taken place due to the rash and negligent driving of the driver of the tractor. It was also alleged in the FIR that some children were playing on the road and they requested the driver, who permitted the children to board the tractor, which fell down subsequently and one of the person on the tractor was the complainant himself, namely, Sokha Ram, who had engaged the tractor for carriage of sand etc. 14. To rebut this evidence, respondents No.3 and 4 examined Sunder Singh, son of Chuha Ram, owner of the tractor and respondent No.2 in the petition. He had no knowledge of the facts and, therefore, his statement is not material. Respondents also examined Durga Singh, whose statement is also not material on this issue. The Insurance Company had not led any evidence and they tendered in evidence the insurance policy Ext.RX. This is in all the evidence led by the parties. 15. From a discussion of the above evidence led by the parties, it is clear that an FIR was registered in this case in regard to the accident which was lodged by the person, who, allegedly, had engaged the tractor for - 7 - carriage of sand etc. and was also on the tractor prior to the accident, as per the allegations made in the petition. The petitioners who are the unfortunate parents of the deceased had not been present at the spot and had not seen the manner in which the accident took place, as to whether the deceased was playing on the road or he had boarded the tractor as an unauthorized passenger. There is nothing on the record as to the fate of the FIR or as to whether it resulted into filing of the cancellation report or challan as against the driver or an untraced report was filed. Therefore, the fact remains that there is only an FIR lodged by a person but there is nothing as to the investigation carried out in this regard. The Insurance company was required to prove that as a result of the accident, a report was lodged which was investigated and the report was filed by the police in which only conclusion was drawn as to whether respondent NO.1 was rashly and negligently driving the tractor. This fact also could have been substantiated by the Insurance Company that the deceased was an unauthorized passenger or the children were playing on the road and they suffered injuries as a result of the fall of the tractor upon them. Thus this fact does not stand established as to whether the deceased had boarded the tractor as an unauthorized passenger or was playing on the road and the tractor had fallen on him and in that case he was a third party and, therefore, the Insurance Company was liable. The law is very clear that the liability of the Insurance Company is only in regard to - 8 - the third parties and is not in regard to the unauthorized passengers on the tractor which was engaged for carrying of sand etc. Unfortunately, the learned Tribunal has not given any findings, positive or negative, either in favour of the petitioners or in favour of respondents No.1 and 2 and has not concluded if the deceased was an unauthorized passenger or was playing on the road and, therefore, can be termed as a third party. The learned Tribunal only concluded that the driver was rashly and negligently driving the vehicle and since the vehicle was insured and there was only breach of conditions which could be termed as irregularity and, therefore, the Insurance Company was held liable. 16. In the absence of any findings of fact that the deceased was travelling on the tractor or was playing on the road and as such was a third party, it cannot be concluded, on the basis of the evidence, as to what were the facts of the case. The petitioners being the parents of the deceased simply relied upon the FIR without going through the contents as to whether it goes in their favour or against them. The plea of violation of terms and conditions has been taken by the appellant and it was for the appellant to substantiate the same as to whether the deceased was an unauthorized passenger and, therefore, they are not liable. In the absence of any evidence having been led by them including the report of the police, it cannot be said, on the basis of the evidence led in the case, that the deceased was travelling on the vehicle or had not - 9 - suffered injuries while playing on the road. In such circumstances, when there is no positive evidence led by respondent No.3 in this regard, the learned Tribunal has rightly held the Insurance Company liable for payment of the amount in question. 17. In view of the above discussion, it is concluded that appellant had failed to substantiate their case by examining any witness or leading any evidence, police report or otherwise, that the deceased was an unauthorized passenger and, therefore, they cannot escape the liability since the vehicle was insured with them. Therefore, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. June 24, 2010 (V.K. Ahuja), (TILAK) Judge.