F.A.O. No. 4673 of 2009 1 ... IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4673 of 2009 Date of Decision: November 7th, 2011 Shyam Sunder @ Biddu .... Appellant Versus The New India Assurance Company Limited and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. D.S.Nair, Advocate, for the appellant. Mr. Vinod Mohinderu, Advocate, for respondent No. 1-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the driver-cum-owner of the offending vehicle, i.e., a Tempo bearing registration No. HR- 46A-7222 challenging the award dated 21.1.2008 passed by the Motor Accidents Claims Tribunal, Jind (for short, "the Tribunal"), vide which respondent no.2, The New India Assurance Company limited, has been exonerated from its liability to pay compensation and the liability has been fastened on the appellant alone. The case set up by Smt. Dhanpati Devi and others, dependents of Balbir Singh is not required to be F.A.O. No. 4673 of 2009 2 ... noticed in detail. It would suffice to mention that on 25.2.2005, Balbir Singh was travelling in a Tempo bearing registration No. HR-46A-7222 driven by respondent no.1, Sham Sunder in rash and negligent manner and the Tempo turned turtle on account of rash and negligent driving of the same, taking away the life of Balbir Singh. While respondent No.1 - Shyam Sunder alias Biddu has denied the very accident to have taken place with his vehicle and has claimed the version of the claimants to be false and concocted, respondent no.2, the insurer, has taken two pleas which are relevant for decision of this appeal. The first is that the tempo was not being driven by a person having a valid and effective driving licence to drive the vehicle and the second is that it was a goods carrier and deceased was a gratuitous passenger, the risk of whom has not been covered by the insurance policy. Framing issues, learned Tribunal took evidence of the parties and hearing learned counsel for the parties, learned Tribunal came to the conclusion under issue No.2 that the tempo was a goods carrier and Balbir Singh was a gratuitous passenger in the same. It has also held that the licence, Exhibit R3, authorized the holder to drive LTV, while the licence required to drive a commercial vehicle is HTV. For these reasons, learned Tribunal exonerated the insurer and fastened the liability to pay the compensation on respondent No.1. F.A.O. No. 4673 of 2009 3 ... Aggrieved by the aforesaid award, the owner-cum- driver has brought this appeal. I have heard Mr. D.S.Nair, learned counsel for the appellant and Mr.Vinod Mohinderu, learned counsel for respondent No. 1-Insurance Company. I have gone through the record carefully. Exhibit R5 is a copy of the driving licence which had come before the Tribunal from some other source. It was a licence authorizing the holder to drive motorcycle and scooter only. The appellant produced Exhibit R5 as his licence when he appeared before the Tribunal and this document authorized the holder to drive LTV. There is nothing on record to suggest that the vehicle in question was HTV and not LTV. It is just a tempo and not even a mini truck. Without any material on record, it cannot be said that a tempo is HTV and requires licence of HTV with its driver for being authorized to drive it. So for this simple reason, the conclusion of learned Tribunal, arrived at in paragraph No. 21 of the award, is found to be erroneous. It has come in evidence of Sham Sunder (RW-1) that the deceased was travelling in the tempo, a goods carrier with his goods. This statement goes unchallenged on the record. A person, who is travelling with his goods in the goods carrier cannot be termed as gratuitous passenger. This is so laid down by a Division Bench of this court in National Insurance Co. Ltd. Vs. Ram Chander and another 2008 ACJ 866. In the reported case , the passengers were travelling in a truck along with F.A.O. No. 4673 of 2009 4 ... goods and they had suffered injuries when the truck turned turtle on account of its rash and negligent driving. The insurance company was held liable to satisfy the award. Keeping in view the aforesaid factual position, I do not find that the Tribunal was right on any of the aforesaid two points. The appeal is, consequently, accepted. The finding of learned Tribunal on issue No. 2 is reversed holding respondent No.2, the insurance company, to be jointly and severally liable to pay compensation to the claimants. (VIJENDER SINGH MALIK) JUDGE November 7th, 2011 som