FAO No.5591 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5591 of 2009 Date of Decision. 13.10.2010 Girdhala son of Parbhu, resident of village Busana, Tehsil Gohana, District Sonipat ......Appellant Versus Smt. Babli and others ......Respondents Present: Mr. B.S. Rathee, Advocate for the appellant. Mr. Ashok Bhardwaj, Advocate for Mr. R.S. Malik, Advocate for respondent Nos.1 to 5. Mr. Banni Thomas, Advocate for respondent No.6. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The owner of the vehicle, who was directed to pay compensation for presumptive death arising out of an occasion when a person that was seen last travelling in a lorry went missing and was not known to be alive for seven years prior to the filing of the petition. The deceased was claimed to be an alternate driver of the vehicle bearing registration No.HR-11-GA-0489 that belonged to the appellant. The appellant-owner was also incidentally the father of the deceased. The deceased stated in the petition that even apart from the deceased there was yet another person, who was a driver and they had left the FAO No.5591 of 2009 -2- township of Panipat in October, 1998 with the consignment of blankets belonging to a person in Uttar Pradesh and who had booked it for transport to Pali in the State of Rajasthan. The deceased and the driver had collected the freight from the consignee after delivering the goods on 20th August and left for Jaipur city. They had obtained a fresh consignment at Jaipur on 21.08.1998 and left the place. Later, the vehicle went missing. A FIR had been registered on 26.9.1998 but the police failed to crack the case and submitted an 'untraced report' in the court of Judicial Magistrate 1st Class, Jaipur. The claim was made after 7 years after the incident by the widow, three children and mother stating that the death had been caused while he was a driver and it must be taken to have resulted in the accident by the use of the motor vehicle. The father, who was the owner admitted the status of the son as a driver in his vehicle and the insurance company filed its petition denying the details of the accident. It also denied the particulars of insurance but it is not now seriously in dispute that the vehicle had been insured with the insurance company. At the trial, it was also further contended that a person must be presumed to be alive till definitely shown to have died on account of any accident by the use of motor vehicle. 2. The Tribunal accepted the tenability of the claim by the legal representatives that he was an alternate driver in the goods carriage and found that his death had to be presumed, more so, when there had been also a decree of the Civil Court presuming his civil death and determined the compensation. It, however, made the owner of the vehicle liable to pay the compensation and exonerated the FAO No.5591 of 2009 -3- insurance company totally. The owner/father is in appeal challenging the award on the ground that consistent with the finding of the Tribunal that the deceased had died in an accident under circumstances when such presumption could be drawn, it ought to have found the insurer liable. On the contrary, it gave particularly no reason for exonerating the insurance company. If the fact of insurance itself was not in dispute, the learned counsel would contend that the insurance company could not have been exonerated. The learned counsel appearing for the insurance company denied that the deceased was a driver in the vehicle and that contended that he was merely a passenger in the goods carriage and there was no insurance cover at all. The counsel for the claimants, who are arrayed as respondents, would contend that the expression driver under the Act need not be a paid driver and relied on a Division Bench ruling of this Court in United India Insurance Company Limited Vs. Kusum Sood and others 2008 (1) RCR (civil) 751, which stated that the insurance company would be liable for the death of a driver even if he had been an owner of the vehicle. 3. The first issue is whether the presumption of death could be taken as having occurred due to an accident arising out of the use of the motor vehicle. For the claim of the representatives to succeed, the first proof must be that there had been a death and the second issue must be that the death was the result of an accident by the use of a motor vehicle. I must observe that the presumption is not in the manner which is sought to be explained by the insurance company that a person is presumed to be always alive. The relevant provisions of FAO No.5591 of 2009 -4- presumption relating to death and the presumption of a person continuing to be alive are set through Sections 107 and 108 of the Evidence Act. Section 107 of the Evidence Act states that the burden of proving death of a person known to be alive within a period of 30 years on the person affirming it. Section 108 of the Evidence Act is in the nature of an exception which reads thus:- “108 Burden of proving that person is alive who has not been heard of for seven years. “Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.” 4. Here in this case, the assertion is made by the wife and children that the deceased, who had left for Rajasthan had not come back home and that the vehicle had gone missing. If they had not seen him for seven years prior to the filing of the petition, then a presumption arises. The claimants shall, therefore, have the right of invoking Section 108 to contend that he was dead. The next issue would be whether such a death was result of an accident by the use of a motor vehicle. This again has been a subject of several decisions where the expression use of the motor vehicle under Sections 165, 166 and 168 have obtained expansive meaning to include even relatively remoter connections to a person that used the motor vehicle. The proximity to the use may be by a third party who had been dashed against or who was last seen travelling in the same vehicle. Of the FAO No.5591 of 2009 -5- several examples, the remotest connection perhaps was in a decision that was dealt with by the Hon'ble Supreme Court in Rita Devi Vs. New India Assurance Company Limited AIR 2000 SC 1930 where a passenger who was last seen in an auto rickshaw had been found murdered later. The auto rickshaw was not traced. The Hon'ble Supreme Court said that the death must be construed as having been caused by an accident involving the use of a motor vehicle and made the insurer liable. The same reasoning ought to be applied and therefore, I have no doubt in my mind that death must also to be taken as arising out of an accident involving the use of a motor vehicle. 5. There is still one more issue that has to be seen of whether a claim on the death of a person, who was an alternate driver also, could give rise to a valid cause of action against the insurer. It wholly depends on the terms of the policy of whether as a mere driver or owner he was entitled to a coverage of policy. For a paid driver or an owner travelling along with the goods, there ought to have been compulsory insurance to cover the risk under Workmen's Compensaton Act. For even a driver, who was duly licensed, there could be a valid insurance cover. Curiously the policy of insurance itself had not been filed by the insurer and if the fact of insurance was admitted even without filing the copy of insurance, the insurance company cannot deny liability. I will not enter into the issue whether he was driver or not, though that was the assertion which was made by the claimants and it was also accepted by the Tribunal. The insurance company could not have been exonerated without setting out in the reasons by FAO No.5591 of 2009 -6- the Tribunal. The award is, therefore, modified making the insurer liable and allowing for full indemnity to the insured owner. 6. The appeal is allowed on the above terms retaining the ascertainment of compensation as made by the Tribunal. (K. KANNAN) JUDGE October 13, 2010 Pankaj*