IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5766 of 2009(O&M) Date of decision: 14.12.2009 United India Insurance Co.Ltd. .....Appellant Versus Mohit Kumar and others ......Respondents CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vinod Gupta, Advocate for the appellant-Insurance Company. Rakesh Kumar Garg, J.(Oral) This is insurer's appeal challenging the impugned award on the question of their liability to pay. It is the case of the appellant that Parmod Kumar-deceased husband of respondent No.1, who was driving scooter, being borrower of the vehicle in question insured with the appellant, there was no tort feasor in this case and thus, in view of the law settled by the Hon'ble Supreme Court of India, liability cannot be fastened upon the appellant-Insurance Company. Learned counsel appearing on behalf of the appellant has further argued that in the present case, the claimant is the major son of the deceased and therefore, he is not entitled to any compensation. I have heard learned counsel for the appellant. I find no merit in the contentions raised by him as both the arguments had not been raised before the Tribunal. The objection taken before the Tribunal by the appellant with regard to its liability to pay was that the deceased was a gratuitous passenger and therefore, the appellant was not liable to indemnify the insured. The point as raised in this Court was never raised before the Tribunal. Moreover,even if the deceased was the husband of the owner, he being the borrower of the scooter had stepped into the shoes of the owner and was thus, entitled to the benefits under the Insurance Policy. Relevant observations of the Tribunal in this regard reads as follows:- FAO No.5766 of 2009(O&M) -2- “Learned counsel for Insurance Company vehemently contended that the deceased was a gratuitous passenger and as such the Insurance company is not liable to pay the amount and placed reliance on United India Insurance Co. Ltd Shimla vs. Tilak Singh & ors. reported in JT 2006 (4) SC 280 wherein it was held that statutory insurance policy do not cover the risk of death to a gratuitous passenger. But in the present case the deceased was not a gratuitous passenger and was himself driving the scooter. As per Insurance policy Ex.R3 a sum of Rs.50/- was paid on account of personal accident to 'owner-cum-driver' and as such the driver of the vehicle was covered under the policy. He was not pillion rider and a gratuitous passenger.” Neither any objection was raised with regard to the entitlement of the appellant in the pleadings nor any argument was raised before the Tribunal despite the fact that a specific issue in this regard was framed. Thus, learned counsel for the appellant was not able to substantiate his arguments as raised above. Thus, I find no merit in this appeal. Dismissed. December 14, 2009 (RAKESH KUMAR GARG) ps JUDGE