MAC .APP.No.301/2005 & MAC.APP.No.72/2005 Page 1 of 3 11 & 12 *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 12th May, 2009 % + MAC.APP. 301/2005 and CM No.5353/2005 and CM No.5356/2005 NATIONAL INSURANCE CO.LTD. ..... Appellant Through : Mr. Vishnu Mehra, Adv. versus BALBIRO & ORS. ..... Respondents Through : None. + MAC.APP. 72/2005 and CM Nos.1885-86/2005 NATIONAL INSURANCE CO.LTD. ..... Appellant Through : Mr. Vishnu Mehra, Adv. versus ROSHAN LAL & ORS. ..... Respondents Through : Mr. S.N. Parashar, Adv. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT (Oral) 1. The appellant has challenged the award of the learned Tribunal on the short ground that claimant/respondent No.1 in MAC.APP. 301/2005 and the deceased – Naresh Kumar in MAC.APP. 72/2005 were gratuitous passengers travelling in the insured tempo and, therefore, the Insurance Company is not liable to pay the compensation under the policy. MAC .APP.No.301/2005 & MAC.APP.No.72/2005 Page 2 of 3 2. PW-5 – Balbiro has stated in her affidavit that she and the deceased were travelling in the tempo along with vegetables and two chairs. It is also noted that the witness could not be contradicted in cross-examination. 3. It is also noted that the onus to prove the defence taken by Insurance Company was on the appellant and no evidence whatsoever was led by the Insurance Company to prove the same. 4. The learned Tribunal has given a finding on page 18 of the impugned award that PW-5 in her affidavit has specifically stated on oath that she as well as the deceased were travelling in the tempo with their goods as owner of the goods and, therefore, they were not gratuitous passengers. 5. The learned counsel for the appellant submits that the insured in MAC.APP.301/2005 and the deceased in MAC.APP.72/2005 were both peons, one in MCD and the other in DTC, and there is no pleading in the claim petition that they were travelling with the goods. In this regard, it is noted that the issue of gratuitous passenger was raised by the Insurance Company for the first time in the written statement and, therefore, there was no occasion with the claimants to plead the reply to the defence of the Insurance Company in the claim petition. 6. Considering that the appellant did not lead any evidence whatsoever and on the contrary, the claimants led positive evidence to prove that the claimants were travelling MAC .APP.No.301/2005 & MAC.APP.No.72/2005 Page 3 of 3 on the tempo along with the goods, there is no infirmity in the finding of the learned Tribunal that PW5 and the deceased were not gratuitous passengers and, therefore the Insurance Company was liable. 7. There is no merit or substance in the appeals. Both the appeals are dismissed. 8. All pending applications are also dismissed. The ex- parte interim stay order dated 15th April, 2005 stands vacated. 9. The appellant has deposited the entire award amount with the learned Tribunal in compliance with the order dated 15th April, 2005 out of which 50% has been released to the claimants and there is a stay with respect to the balance 50% of the award amount. The learned Tribunal is directed to release the balance 50% of the award amount to the claimants in terms of its award. 10. Copy of the order be also sent to the learned Tribunal for compliance. The learned Tribunal is directed to comply within two weeks and send the report of compliance to this Court. Copy of this order be also sent to the claimants. 11. Copy of this order be given ‘Dasti’ to learned counsel for the parties under signatures of Court Master. J.R. MIDHA, J MAY 12, 2009 aj