IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 13 of 2008 and FAO (MVA) No. 14 of 2008. Judgment reserved on: 19.4.2010 Date of Decision: April 24, 2010. 1. FAO (MVA) No.13 of 2008. Oriental Insurance Company Ltd. .. Appellant. Versus Verinder and another .. Respondents. For the appellant : Mr. J.L.Kashyap, Advocate For respondents 1 : Mr. Naveen Bhardwaj, Advocate. For respondent No.2 : Mr. Lalit Sehgal, Advocate, vice Mr. Peeyush Verma, Advocate. 2. FAO (MVA) No.14 of 2008. Oriental Insurance Company Ltd. .. Appellant. Versus Bhag Dass and others .. Respondents. For the appellant : Mr. J.L.Kashyap, Advocate For respondents 1& 2 : Mr. Naveen Bhardwaj, Advocate. For respondent No.3 : Mr. Lalit Sehgal, Advocate, vice Mr. Peeyush Verma, Advocate. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Surinder Singh, J. 1. Both the appeals filed by the Insurance Company are being disposed of by this judgment 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - as these are arising from the same accident and involve the common questions of law and facts. 2. Aggrieved by the awards, passed by the learned Motor Accident Claims Tribunal in Claim petitions, decided on 28.9.2007, the challenge has been made by the Insurance Company in both the appeals, on the ground that the deceased in Claim Petition No.3/06 and the injured in Claim Petition No.49/06, were gratuitous passengers in Mahindera Pick-up, alleged offending vehicle bearing registration No. HP-43-0135, which was owned and driven by respondent Hira Singh and there were six passengers including driver as against the 5 persons (1+4) mentioned in the Registration Certificate, therefore, the Insurance Company was not liable to indemnify the insured. 3. Precisely, the case of the claimants in both the petitions has been that on 13th December, 2005, they had hired the aforesaid vehicle to transport the karyana articles from bazaar Udaipur to their native village Salpat in District Lahul & Spiti, to store for their consumption during the ensuing winter season ahead. They had paid the transportation charges to respondent No.1. When the said vehicle - 3 - reached near Tarnah Mour around 4.30 p.m., respondent No.1 lost its control and the vehicle went 100 meters down the road, causing grievous injuries to Dinesh son of the claimants in Claim Petition No.3/06 (FAO No.14 of 2008), who later died in the hospital and grievous injuries to Verinder Singh, claimant in claim Petition No.49/06 (FAO No.13 of 2008) and the injured Verinder Singh developed paraplegia. The Medical Board assessed 100% permanent disability of the lower limb. 4. Respondent No.1 admitted that the aforesaid occupants of the vehicle were the owners of the goods and they had hired his Mahindera Pick-up for transporting the Karyana articles to their village, but he denied that he was rash and negligent in driving the said vehicle. 5. The Insurance Company resisted and contested the claim petitions on various grounds and alleged that the deceased and injured petitioner were gratuitous passengers. They had also moved an application under Section 170 of the Motor Vehicles Act, to take all the defences available to the insured as the owner-cum-driver of the said vehicle was alleged to have colluded with the petitioners. The request was allowed by - 4 - the learned Tribunal vide its orders dated 12th January, 2007. 6. The learned Tribunal allowed both these petitions and in petition No.3/06, awarded the amount of Rs.3,94,000/- to the parents of the deceased with interest @ 7% per annum from the date of petition i.e. 29.12.2005 till its realization/ deposit and the injured Varinder Singh ( 17 years) was awarded the amount of Rs.7,62,500/- with interest @ 7% per annum from the date of petition i.e. 16.5.2006, keeping in view, his permanent disability. Both the petitions were allowed with costs. 7. Shri J.L. Kashyap, learned counsel for the appellants, vehemently argued that as per the FIR lodged by one Devi Singh, there were six passengers traveling in the said vehicle, as against the permitted capacity of 1 +4, as per the registration certificate and further that there is nothing on record to show that the deceased as well as the insured aforesaid had hired the said vehicle to transport the provisions to their village. 8. Contra, the learned counsel for the respondents supported the impugned awards, in both the petitions and also submitted that the Insurance Company has also wrongly repudiated - 5 - own damage claim of the vehicle of the owner on the same ground, but vide order dated 13.7.2007 Ex.RW1/A, the District Consumer Redressal Forum, allowed the own damage qua the said vehicle to the respondent No.1. 9. I have heard the learned counsel for the parties and have examined the evidence on record. 10. As a matter of fact, in both these petitions, before the learned Tribunal, claimants have pleaded and proved that they alongwith other persons had engaged Mahindera Pick-up to transport the Karyana articles to their village to store it for the ensuing winter season and this fact stands admitted by the respondent No.1 owner-cum-driver of the vehicle. Not only this, one Devi Singh, who immediately after the accident had lodged the FIR Ex.PW3/A (petition No.3/06) categorically stated that his co-villagers after purchasing karyana articles from the Bazzar had hired and loaded it in the said offending vehicle, to take it to their village, but on the way near Tarnah mour, accident took place on account of rash and negligent driving of respondent No.1. This fact has been substantiated by PW2 Verinder Singh (in his own - 6 - petition) and his witness PW3 Hari Ram. The FIR has been proved by PW4 HC Karam Singh. Hari Ram was also examined as PW2 by the parents of deceased in their own petition. 11. AS RW1 Hira Singh has also substantiated his plea, but denied that there were six passengers in the vehicle, as alleged. Otherwise, he admitted the contents of FIR aforesaid to be correct. The respondents also examined ASI Rajinder Kumar, the Investigating Officer of the case. According to him, as per FIR including the driver, there were six passengers in the offending vehicle but in cross-examination, he could not specifically state that there were only four persons in the vehicle. 12. There is no clinching evidence that there were six passengers traveling in the said vehicle including the driver, the maker of the FIR Devi Singh was also not examined by the Insurance Company to rebut the evidence of the petitioners, therefore, by no stretch of imagination, it can be concluded that there were more than four persons traveling in the said vehicle including the deceased and the injured petitioner. - 7 - 13. In B.V.Nagaraju vs. M/s Oriental Insurance Co. Ltd., Divisional Office Hassan : AIR 1996 SC 2054, it was also held that the question whether the alleged breach of carrying human in a goods’ vehicle more than the number permitted in terms of the insurance policy was not a fundamental breach, so as to afford to the insurer to eschew liability altogether. 14. Shri J.L. Kashyap, learned counsel for the appellants, also argued that there was no question of accompanying the goods by the petitioners Verinder Singh, who was a school going student and that on the date of accident, he admittedly had attended the school, but this arguments also fails to convince as the accident in question had taken place after the school hours i.e. at 4.30 p.m. Verinder Singh has categorically stated that he was accompanying the karyana articles purchased from the market, which were being transported in the said vehicle with his co-villagers, who also hired the said vehicle. 15. In view of the above, the deceased and the injured aforesaid cannot be said to be the gratuitous passengers and there is no cogent - 8 - evidence to rebut the sworn testimony of the injured as well as other witnesses. Therefore, I do not find any farce in the plea raised by the Insurance Company that in the aforesaid circumstances, they were not liable to indemnify the insured. Hence, both the appeals are without merit, therefore dismissed. 16. Consequently, the execution of the awards, which was ordered to be stayed by this court, vide its orders dated 30.7.2008 and 4.6.2008 respectively in both the petitions stand vacated. The amount of compensation be disbursed with interested accrued thereon to the claimants, as per the award(s) passed by the learned Tribunal in each of the petitions. 17. Both the appeals stand disposed of. April 24, 2010. (Surinder Singh), (Pds) Judge.