IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 339 of 2005 Date of Decision : November 3, 2009 Dinesh Kumar …Appellant. Versus: Manoj Kumari & Ors. …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 respondents No. 1,: Mr. Kush Sharma, vice Mr. Vivek 2, 3(a) & 3(b). Thakur, Advocate. For respondent No.4: 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. 19 of 2003 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 deceased Praveen Kumar was travelling as a gratuitous passenger on the vehicle and, therefore, the insurer 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 Praveen Kumar 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 Praveen Kumar who 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 Praveen Kumar 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 4. Whether Shri Praveen Kumar had been unauthorized person travelling in tractor No. HP- 23-A-1527, if so with what effect? …OPP 5. Relief.” Based on the material on record, the Tribunal came to the conclusion that Shri Praveen Kumar had died on account of rash and negligent driving of the tractor by Shri Suresh 3 Kumar. The claimant being legal heir of the deceased was entitled to 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. While deciding issue No.4, the Tribunal found that the deceased in fact was traveling as an unauthorized passenger on the tractor in question. Hence, the material terms and conditions of the insurance policy Ext.R-2 having been violated, the insurer was not liable to indemnify the insured. I have heard the learned counsel for the parties and also perused the record. I find that there is no infirmity in the impugned award and the present appeal needs to be dismissed. It is the pleaded case of the claimant that deceased Praveen Kumar was travelling on the tractor as labourer as per the instructions of Shri Dinesh Kumar (appellant herein). This fact was specifically denied by the appellant who is the owner of the tractor. Further, Shri Jagdish Ram (PW-2), in fact has supported the insurer’s case and has deposed that on 16.10.2002 at about 4.30 p.m. he saw a tractor coming at high speed as a result of which the driver lost control and accident occurred. Three persons, one of whom was Praveen Kumar, traveling on the tractor died on the spot. 4 The deceased evidently was travelling on the tractor at the time of the accident and died as a result of the injuries sustained by him. It is no body’s case that the deceased was driving the tractor. As per the Registration Certificate Ext.R-1, the seating capacity including that of the driver is one person. The insurer no doubt has charged the insurance premium for one plus two persons but however in the insurance policy Ext.R-2 itself, it is clarified that the premium charged was for the driver and two coolies. It is the pleaded case of the insured that the deceased was not travelling on the tractor as a labourer. Thus, the material terms and conditions of the insurance policy Ext.R-2 having been breached by the insured, inasmuch as it allowed person other than the driver to travel on the goods vehicle, contrary to the ratio laid down in Oriental Insurance Co. Ltd. vs. Brij Mohan & Ors. (2007) 7 SCC 56, the insurer cannot be held liable to indemnify the insured. Thus, I find no infirmity, illegality or perversity in the impugned award and the present appeal is accordingly dismissed. ( Sanjay Karol ), Judge. November 3, 2009. (rana)