IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 175 of 2005 Date of Decision : November 3, 2009 Dinesh Kumar …Appellant. Versus: Biasan Devi & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. T. S. Chauhan, Advocate. For respondent No.1: Mr. Kush Sharma, vice Mr. Vivek Thakur, Advocate. For respondent No.2: Mr. B. M. Chauhan, Advocate. Sanjay Karol, J. (Oral) The impugned award dated 29.7.2004 passed by the Motor Accident Claims Tribunal, Bilaspur, H.P. in M.A.C. Case No. 8 of 2003 titled as Biasan Devi v. Dinesh Kumar & Anr., has been assailed by the owner of the vehicle involved in a motor accident on the point that the Tribunal has erred in holding that the claimant (respondent No.1 herein) was travelling as a gratuitous passenger on the vehicle and as such the insurer (respondent No. 2 herein) is not liable to indemnify the insured. The facts necessary for adjudication of the present appeal are as under. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 The claim petition under Section 166 of the Motor Vehicles Act 1988 (hereinafter referred to as ‘the Act’), was filed by the claimant as legal heir of Shri Arvind Singh who died in a motor accident on 16.10.2002. The tractor bearing registration No. HP-23-A-1527 being driven by Shri Suresh Kumar in a rash and negligent manner hit Shri Arvind Singh as a result of which he sustained injuries and expired. The petition was opposed by the insurer of the vehicle in question, inter alia on the ground that the deceased was travelling as a gratuitous passenger. Based on the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether Shri Arvind Singh had died on account of rash and negligent driving of tractor No. HP-23-A- 1527 by its driver? ………..OPP 2. If issue No.1 is proved to what amount of compensation and against whom the petitioner is entitled to? …….OPP 3. Whether the driver of tractor No. HP-23-A-1527 had not been in possession of a valid and effective driving licence at the time of the accident, if so with what effect? …....OPR-2 3-A.Whether the deceased was a gratuitous/ unauthorized passenger of the tractor in question as alleged? …OPR-2 4. Relief.” Based on the material on record, the Tribunal came to the conclusion that Shri Arvind Singh had died on account of rash and negligent driving of the tractor by Shri Suresh Kumar. The claimant being legal heir of the deceased was entitled to 3 compensation of Rs.2,62,000/- along with interest @9% upto the date of payment. The driver was held to have been possessed with a valid and effective driving licence. However while deciding issue No.3-A the Tribunal recorded the following findings:- “15. Coming to the liability, it has been established that the deceased was going on his tractor and was not walking on the road as was sought to be proved. A perusal of Ext.R-1 copy of R.C. shows that the sitting capacity of the tractor including driver was one meaning thereby that no person is allowed to sit on the tractor as representative of the carrier of the goods or in any such capacity. There is nothing on record to show that any goods were being carried or that the deceased was owner of those goods or the authorized representative. Keeping in view the sitting capacity of the tractor and the evidence, it is clear that the deceased was a gratuitous passenger and, therefore, the company is not liable. However, in view of the decision of the Apex Court in “National Insurance Company v. Baljit Kaur”, A.I.R. 2004 Supreme Court -1340, in case of death of a gratuitous passenger carried in goods vehicle, the insurance company cannot be said to be liable. In view of the decision of the Apex Court the amount has to be firstly deposited by the Insurance Company and then they can recover the amount from the respondents as held in “New India Assurance Company v. Kamla and others” A.I.R. 2001 S.C. 1419. As such the Insurance Company can recover the amount from respondent No.. These 4 issues are accordingly decided in favour of the petitioner and as against the respondents.” Having heard the learned counsel for the parties and also perused the record, I am of the considered view that the Tribunal has erred in appreciating the material on record. Thus the findings returned are erroneous and illegal. The claimant in para-10 of the petition has pleaded that the deceased was walking on the road when the driver hit him from behind as a result of which the deceased sustained injuries and died. In the reply, the respondents have denied this fact only for want of knowledge. In order to prove its case, the claimant examined Smt. Bimla Devi (PW-2) who categorically deposed that on 16.10.2002 at about 4.30 P.M., she saw Shri Arvind Singh who was walking on the road, hit by a tractor being driven in a rash and negligent manner. As a result thereof, both Shri Arvind Singh and the two occupants on the tractor fell down and three persons died in the accident. This witness is a Pradhan of the area. She has no reason to falsely depose and is not related to the claimant either. No doubt in her cross examination she has admitted that she saw the occurrence of the accident from a distance of about 40 to 50 feet but however, that by itself would not render her version to be untrue. Her statement inspires confidence. The insurer on the contrary has not led any evidence to prove to the contrary. Copy of the FIR Ext.PC tendered in 5 evidence by the claimant indicates a different version about the occurrence of the accident. But however, in the absence of FIR having been proved in accordance with law, the same cannot be looked into. In fact, the Tribunal has not considered this aspect of the matter and has pre-supposed that the deceased in fact was travelling as a passenger on the tractor. In this view of the matter, the findings returned by the Tribunal are set-aside. In view of clear, cogent and convincing evidence produced on the record by the claimant, it cannot be said that the insurer is not liable to have indemnified the insured. The burden/onus to be discharged by the insurer, as is held in National Insurance Co. Ltd., vs. Swaran Singh & Ors. (2004) 3 SCC 297, has not been discharged. Findings on issue No.3-A are reversed. Hence, the impugned award is modified to the aforesaid extent. The vehicle being insured in terms of insurance policy Ext. R-2, the insurer is liable to indemnify the insured and pay the awarded amount to the claimant. There being no breach of any terms of the insurance policy. The amount deposited in the Registry by the owner-appellant shall be refunded to him with up-to-date interest. Appropriate application be moved. The appeal is allowed. ( Sanjay Karol ), Judge. November 3, 2009. (rana)