FAO No. 974 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.974 of 1988 Decided on : 09-12-2008 Vijay Kumar ....Appellant VERSUS Daya Nand and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Ashish Gupta, Advocate for the appellant Mr. Neeraj Khanna, Advocate for the Insurance Company. MAHESH GROVER, J This appeal is directed against the order of the Motor Accident Claims Tribunal, Jind, dated 26.8.1988. The appellant Vijay Kumar while travelling in a vehicle which has been described as a Matador by simply hanging outside the seat of the driver on the right side suffered injuries in an accident which took place on on 3.8.1985 and as a result thereof his right arm was amputated. He suffered 80% disability. The Tribunal while answering the claim petition preferred by the appellant dismissed it as the appellant had failed to establish the negligence of either the driver of the vehicle in which appellant was travelling or the truck which had brushed against him causing the injuries in the process. After hearing learned counsel for the appellant and perusing the award, I am of the considered opinion that there is no infirmity in the impugned award. The appellant had concededly taken a lift in the vehicle in which he was travelling and as per his own case he was standing outside the FAO No. 974 of 1988 2 driver's side of the cabin by holding on some portion of the vehicle. The time was 10:30 at night and it was drizzling and obviously the vehicle which was coming from the front side with reduced visibility could not have imagined any person hanging from the vehicle. Therefore, the truck driver cannot be held negligent. There is no evidence on record to suggest that the driver of the vehicle in which the appellant was travelling was negligent. Therefore, the finding on this issue of negligence as recorded by the Tribunal cannot be faulted with and the same is affirmed. However, the Tribunal has not considered the plea of grant of compensation under Section 92-A of the Act. Accordingly, the appeal is disposed of with a modification in the award that the appellant shall be entitled to Rs.7500/- which was the amount payable under Section 92-A at the relevant time alongwith interest at the rate of 9% per annum from the date of filing of the petition till the date of its realisation. The liability to pay the amount shall be that of the Insurance Company of the vehicle in which the appellant was travelling for the reason that there is no evidence on record to suggest that the vehicle was being driven contrary to the terms of the policy. There is no evidence to suggest that the appellant even if taken to be gratious passenger was being ferried by driver with the tacit consent of the appellant. Concededly, the vehicle was insured. Consequently, since the Insurance Company failed to establish the fact of the violation of the terms of the policy by the owner of the vehicle which is insured cannot escape the liability. Disposed of. December 9 , 2008 (Mahesh Grover) rekha Judge