FAO No. 3038 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 3038 of 2010 Date of decision 20.9.2011 1. FAO No.3038 of 2010 Ramesh Kumar and Another Appellants v Kapil @ Bitu and Others Respondents 2. FAO No.3039 of 2010 Ramesh Kumar and Another Appellants v Subhash and Others Respondents 3. FAO No.3040 of 2010 Ramesh Kumar and Another Appellants v Bimla Devi and Others Respondents 4. FAO No.3041 of 2010 Ramesh Kumar and Another Appellants v Bimla Devi and Others Respondents 5. FAO No.3042 of 2010 Ramesh Kumar and Another Appellants v Phool Singh and Others Respondents CORAM: Hon'ble Mr.Justice Jitendra Chauhan Present: Mr. Vivek Khatri,Advocate for the appellants Mr. B.S.Walia,Advocate for the claimants (in all cases) Mr. R.N.Singhal, Advocate for the Insurance Company JITENDRA CHAUHAN.J These appeals have been filed by the appellant-driver against the Award dated 8.3.2010, passed by the Motor Accident Claims Tribunal,Hissar (for short the Tribunal). Brief facts of the case are that on 5.12.2007, respondents (claimants) and Chet Ram (since deceased; represented by LRs ) were FAO No. 3038 of 2010 2 traveling in a Jeep bearing registration No. HR-39/6028 (hereinafter referred to as the offending vehicle) in the area of Hisar District. Ramesh Kumar, appellant was driving the jeep at a high speed. All the passengers of the jeep requested him to slow down the speed of the offending vehicle but to no effect. When the jeep reached near brick company between Village Mignikhera and Matarshayam, it struck against another jeep bearing registration No. DL-5CA-6285 coming from opposite side, as a result of which the offending jeep turned turtle and Subash, Phool Singh, Kapil and Chet Ram, occupants, including the driver of the offending vehicle suffered grievous injuries. Subsequently, Chet Ram succumbed to his injuries. FIR No. 1022 Ex.P7 under sections 279/337/304-A IPC was registered against respondent No.1 Ramesh Kumar at Police Station, Sadar, Hissar. Upon notice, respondent Nos. 1 & 2, ( Ramesh Kumar and Devi Lal), driver and registered owner of the offending vehicle filed the written statement. It was pleaded that the driver of the jeep No. DL-5CA-6285 was driving the jeep in a rash and negligent manner and he struck it against the offending vehicle. The driver of that jeep ran away from the spot and a false case was registered against the driver of the offending vehicle. The matter was reported to the higher police authorities to register a case against the driver of jeep No. DL-5CA-6285. Respondent No.1 has filed a criminal complaint and claim case against the driver of jeep No. DL-5CA-6285. The Insurance Company, respondent No.3 took the stand that the vehicle was driven in contravention of the terms of the insurance policy. From the pleadings of the parties, the following issues were framed:- 1. Whether the accident took place due to rash and FAO No. 3038 of 2010 3 negligent driving of driver of the vehicle bearing No. HR-39-6028 in which the petitioners Phool Singh, Subash, Kapil received injuries and Chet Ram died? OPP 2. Whether the petitioners are entitled to any compensation and from whom? OPP 3. Whether the vehicle in question was being driven by respondent No.1 in contravention of Insurance Policy at the time of accident? OPR 4. Relief” While dealing with Issue No.1, the Ld. Tribunal observed that the accident occurred due to rash and negligent driving of respondent No.1. He is facing criminal trial. The police report also dittoed the same. However, the Ld. Tribunal did not give much weight to the mechanical examination reports Ex. R1 and R2 and photographs Ex. R3 produced by respondent No.1 to prove that the accident occurred due to fault of the driver of jeep No. DL-5CA-6285. It concluded that on the basis of police investigation, the respondent No.1 is responsible for the said accident. The criminal proceedings against respondent No.1 have not been quashed by the competent court. The Ld. Tribunal absolved of the liability of the Insurance Company to pay compensation to the claimants by considering the argument that Insurance Policy Ex.R5 was issued for the offending vehicle and it did not cover the risk of the occupants traveling in the offending vehicle. Phool Singh, one of the claimant (injured) appeared as PW2 and stated that no fare was paid to the driver of the offending vehicle. The offending vehicle was on contract. He was working for contractor Balwan. The Ld. Tribunal thus FAO No. 3038 of 2010 4 observed that the respondents were traveling in the offending vehicle as paid or gratuitous passengers and the Insurance Company is not liable to pay any compensation to them as per the terms and conditions of the Insurance Policy. Accordingly, the Ld. Tribunal held liable respondents No. 1 and 2 jointly and severally to pay the compensation to the claimants. Aggrieved against the Award of the Ld. Tribunal, the appellant- driver has filed these appeals. I have heard the learned counsel for the parties and have gone through the record carefully. The main argument of learned counsel for the appellant is that the Ld. Tribunal went wrong in deciding issue No.2. It has not gone into the evidence produced on record and decided this issue against the respondent No.1. He further contended that the Ld. Tribunal wrongly observed that the Insurance policy did not cover the risk of the occupants traveling in the offending vehicle and the Insurance Company is not liable to pay the compensation to the claimants. In support of his arguments, he placed reliance on The General Manager,United Insurance Co.Ltd v. M.Laxmi and Ors. 2009(1) R.C.R (Civil) 232, Rani Gupta and Ors. V. M/s United India Insurance Co. Ltd. And Ors., 2009 (2) R.C.R. (Civil) 900. Learned counsel for the respondents relied upon United India Insurance Co. Ltd. Shimla v. Tilak Singh and Others, 2006 (3) R.C.R. (Civil) 168 and argued that the Insurance Company owed no responsibility and it did not cover the risk of death or bodily injury to a gratuitous passenger. After leading of evidence by the parties and hearing the counsels of both the sides, the Ld. Tribunal came to the conclusion that the FAO No. 3038 of 2010 5 driver of offending vehicle was driving the said vehicle in a rash and negligent manner, at the time of the accident. The passengers of the said vehicle requested the driver to slow down the speed. In his own statement, the respondent No.1 admitted that he charged Rs. 9/- per passenger. It shows that the offending vehicle was on hired basis and it is well settled law that the Insurance Company is not liable to pay for the passengers of a vehicle, who travel for hire. In the case of Rani Gupta and Ors. (supra), the question whether a person traveling as gratuitous passenger in the car, would fall within meaning of third party and covered by statutory policy under section 147, was answered in the affirmative by the Apex Court case, because in that case the policy was “Private Car Package Policy” and insurance company was liable to pay compensation. In the instant case, no such special policy was obtained by the owner and the policy Ex. R5 did not cover the risk of the passengers. It has been proved on record that the driver of offending vehicle was driving the vehicle in a rash and negligent manner and caused the accident. The law cited by the learned counsel for the appellant is not relevant to the facts of this case. In view of the above discussion, it is held that the Ld. Tribunal rightly held liable respondents No.1 & 2 to pay the compensation to the claimants in all the claim petitions. These appeals fails and are dismissed. No costs. (JITENDRA CHAUHAN) JUDGE 20.9.2011 MS