IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 39 of 2006 National Insurance Co. Ltd. …Appellant Versus Smt. Bhuma Devi & others …Respondents Mr. K.K. Shah, Advocate for appellant Mr. Virendra Kumar, Advocate holding brief of Sri Vinod Nautiyal, Advocate for respondents no. 1 to 5 Mr. Anant Kumar Agrawal, Advocate holding brief of Sri Sudhir Kumar, Advocate for respondent no. 6 Dated: December 24, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-National Insurance Co. Ltd., against the judgment and award dated 28.10.2005/9.11.2005 passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal, in M.A.C.C. No.46 of 2002, Smt. Bhuma Devi and others versus Subhash Chandra and another. Briefly stated the facts, according the claimants, are that deceased-Dinesh Das was going to Satpuli from his village Gudeth in Truck No. U.P. No. U.P.06-2225.When the said truck reached near Khaira, it met with an accident due to rash and negligent driving of its driver. In the said accident, deceased sustained injuries on his person and succumbed to those injuries. The deceased was 34 years of age at the time of accident and used to earn Rs.5000/- per month by working as Band Master. 2 The claimants claimed a sum of Rs.8,50,000/- as compensation against opposite parties. Opposite party no. 1 i.e. owner of truck in question filed his written statement admitting therein the contents of paragraph nos. 8,9,15 to 17 of the claim petition and denied rest of the contents of the claim petition. In the additional pleas, it has been stated that amount of compensation has exaggeratedly been mentioned. Opposite party no. 1 was not at fault in the accident, rather accident occurred in the process of coming a cow in the way and applying the brake to avoid the accident. It has also been stated that on the date of accident vehicle was being plied with all valid papers relating to it and vehicle was insured with National Insurance Co. Ltd. w.e.f. 15.7.2000 to 14.7.2001 by cover note no. 190725. Therefore, the liability to pay the amount of compensation, if any, is of insurance company. The claim petition filed against respondent no. 1 is liable to be dismissed. Opposite party no. 2-National Insurance Co. Ltd. filed its written statement admitting the factum of insurance of vehicle, but denied rest of the contents of claim petition. In the additional pleas, it has been stated that on the date of accident driver of vehicle, who is owner of vehicle also, was not having valid driving licence to ply the vehicle and he was not having permit to ply the vehicle on hill routes. The vehicle was being plied in breach of conditions of permit by carrying passengers and thus the owner of vehicle has breached the conditions of insurance policy. Therefore, the claim 3 petition filed against insurance company is liable to be dismissed. The learned Tribunal on the basis of pleadings adduced by the parties framed following issues in the claim petition: 1. Whether Dinesh Das died due to injuries received in an accident on 9.3.2001 at about 2 pm near Village Khaira on Satpuli-Kotdwar road on account of rash and negligent driving of a truck, bearing registration No. U.P.- 06-225, as alleged in the claim petition. 2. Whether driver of the said Truck No. U.P.06-2225, was not holding a valid and effective driving licence at the time of accident? 3. Whether the said Truck No. U.P.06- 2225 was driven in violation of terms and conditions of the insurance policy at the time of accident? 4. Whether the deceased was an unauthorised occupant and was not covered by the insurance policy, as alleged in the W.S. filed by O.P. No. 2? 5. What amount of compensation, if any, are the petitioners entitled and from whom? Parties led oral as well as documentary evidence in support of their case. The Tribunal after having considered the entire material available on record and hearing learned 4 counsel for the parties decreed the claim petition for a sum of Rs.2,79,000/- along with conditional interest of 9% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 28.10.2005. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-National Insurance Co. Ltd. has preferred the present appeal before this Court. Heard Sri K.K. Shah, learned counsel for appellant, Sri Ravindra Kumar, Advocate holding brief of Sri Vinod Nautiyal, learned counsel for claimants-respondents no. 1 to 5, Sri Anant Kumar Agrawal, Advocate holding brief of Sri Sudhir Kumar, learned counsel for respondent no. 6 (owner-driver of vehicle in question) and perused the record. Learned counsel for the appellant has invited my attention towards short controversy involved in this case that the finding of the Tribunal with regard to this finding that deceased was not travelling as a gratuitous passenger on the truck in question at the time of accident. He has submitted that the finding recorded by the Tribunal is against the weight of evidence available on record. He has further submitted that evidence on record clearly indicates that deceased was travelling as a gratuitous passenger on the truck in question at the time of accident and under these circumstances the liability to pay the amount of compensation does not rest on the shoulder of insurance company. 5 Learned counsel for owner/driver of offending vehicle in question has submitted that no strict proof of pleading is required in the summary proceedings like claim petition before the Tribunal as is required under other proceedings in view of the provisions of C.P.C. He has further submitted that the finding recorded by the Tribunal is crystal clear that at the place of accident potatoes were found spreading on earth and it is also clear that deceased had been travelling on the truck in question at the time of accident along with his luggage i.e. bags of potato as well as he cannot be said to be a gratuitous passenger, therefore, the liability to pay the amount of compensation does not rest on the shoulder of owner of offending vehicle in question. In order to consider the aspect pointed out before me by the learned counsel for the parties, a close scrutiny of the record of the court below would be necessary. It reveals from the written statement filed by the owner of vehicle in question that no specific pleading has been taken by the owner of offending vehicle as to whether the deceased had been travelling on the truck in question as a gratuitous passenger or not, rather in paragraph 4 of the written statement the denial of paragraph 11 of the claim petition has been made. This denial indicates that the owner of offending vehicle has taken the plea that deceased had not been travelling on the truck in question at the time of accident, at all. Further, it would be relevant to mention here that the claimants during the course of claim petition moved an application under Order 6 Rule 17 C.P.C. for incorporating the amendment in the 6 claim petition. The amendment to be sought by the claimants was that deceased had been travelling on the truck in question at the time of accident along with two bags of potato. The Tribunal after having considered the entire material available on record rejected the application for seeking amendment in the claim petition. It has been observed by the Tribunal in the impugned order dated 1.3.2005 thereby rejecting the amendment application that no material has been placed by the claimants which might have suggested that deceased had been travelling on the truck in question along with two bags of potato. It is worthy to mention here that Judge of the Tribunal who rejected the amendment application, who is the same Officer who decided the claim petition finally vide judgment and order dated 28.10.2005 and it appears that the Judge of the Tribunal has ignored this aspect that he already rejected the amendment application in this regard earlier. The Tribunal has thus recorded a finding that deceased was travelling along with two bags of potato on the truck in question at the time of accident, which is absolutely against the weight of evidence available on record. I do not find any reason as to how and why the Tribunal had an occasion to record the finding that the deceased had not been travelling as a gratuitous passenger on the truck in question at the time of accident as once the amendment application in this regard had already been rejected by the Judge of Tribunal concerned. 7 Therefore, the finding recorded by the Tribunal that deceased had not been travelling as a gratuitous passenger on the truck in question at the time of accident, is perverse and against the weight of evidence as well as it is quite clear from the order passed by the Tribunal dated 1.3.2005 thereby rejecting the amendment application that deceased had been travelling as a gratuitous passenger on the truck in question at the time of accident. As far as submission raised by learned counsel for owner of truck in question that no strict proof of pleading in required in the summary proceedings like claim petition, is concerned, I do not find any force in this argument. Had there been no pleading and it would have been appeared during the course of argument that deceased was travelling along with two bags of potato at the time of accident, then matter would have been different, but in the instant case, the claimants came with a specific plea by way of amendment that deceased was travelling along with two bags of potato and the application seeking amendment was rejected by the same Tribunal Judge, therefore, there was no occasion with the Tribunal Judge to hold that deceased was not a gratuitous passenger on the truck in question at the time of accident. I am of the definite view that the finding recorded by the Tribunal in this regard, is liable to be set aside. In case, if the deceased had been travelling as a gratuitous passenger on the truck in question at the time of accident, then it is a case of breach of conditions of insurance policy and under these circumstances, the insurance company cannot be 8 said to be liable to pay the amount of compensation. It would be the liability of owner of vehicle in question to pay the amount of compensation awarded by the Tribunal vide impugned judgment and award. I, therefore, also set aside the direction issued by the Tribunal for making the payment of awarded amount of compensation by the insurance company/appellant. For the reasons stated above, appeal filed by the appellant/insurer of offending vehicle in question, is allowed. The finding recorded by the Tribunal relating to the point that deceased had not been travelling as a gratuitous passenger on the truck in question at the time of accident, is set aside. Accordingly, impugned judgment and award is also modified to the extent that amount of compensation awarded by the Tribunal shall be paid by the owner of offending vehicle in question, instead of insurer of vehicle in question. The statutory amount deposited with this Court be remitted to the Tribunal concerned. In case, if the appellant/insurer of vehicle in question has deposited any sum with the Tribunal concerned, the same shall be refunded to the insurance company. (B.C. Kandpal, J.) SP