IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) No. 139 of 2008. Judgment reserved on 4.11.2008. Date of decision 23.12.2008. Amit Kumar and another ….Appellants. Versus Smt. Bajro Devi & others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Ajay Sharma, Advocate. For respondents 1 to 3 Mr. Avinash Jaryal, Advocate. For respondent No. 4 Mr Lalit Kumar Sharma, Advocate. Dev Darshan Sud, J. This is the second time that the owner has appealed against the judgment and order passed by the learned Motor Accident Claims Tribunal, Chamba. On the first occasion, FAO 188 of 2007, titled Amit Kumar Mandla v. Smt. Bajro Devi and others was filed, which was instituted by him. The challenge in that appeal was that the learned Motor Accident Claims Tribunal, Fast Track Court, Chamba had disposed of the petition by a brief order stating therein that when the case was taken up for arguments, the parties had compromised the matter and it was disposed of on the 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - statement of the owner/appellant herein. In the judgment, the Court had recorded that the statements of the parties accepting this fact had also been recorded separately. The judgment was challenged on the ground that it was not in accordance with the mandatory provisions of Order 23 of the Code of Civil Procedure. The appellant therein (appellant in this appeal also) had in addition to the other grounds urged pleaded that on the date when the case was taken up, his counsel was not present and he was represented by another counsel appearing on behalf of his Advocate who was not conversant with the facts and he was unable to understand the implication of the admission of liability. While disposing of the appeal, this Court observed: “ …It is unfortunate that a number of grounds have been raised by the appellant in this appeal merely to wriggle out of an otherwise solemn statement which he has made before the learned Trial Court. However, I am not making any observation about that. Suffice it to say that it is fundamental that the mandatory requirements of law must be followed. The learned court was well advised to have followed the procedure prescribed under Order 23 of the Code of Civil Procedure…” - 3 - The matter was accordingly remanded by judgment of this Court dated 31.8.2007. The order challenged in that appeal may also be noticed. The main petition was fixed for arguments on 25.11.2006 when the Court recorded: “25.11.2006 Present: Sh. Jeet Singh, Petitioner No. 2, in person. Shri A.K.Jaryal, Advocate, Counsel for the petitioner. Shri Rajan Mahajan, counsel for respondent No. 1. Shri Vikas Bedi, vice Shri Dinesh Sharma, Adv. Counsel for the respondents 2 and 3. Respondent No. 2 Sh. Amit Kumar in person. The case is fixed for arguments today, but the parties have compromised. Their statements recorded separately. Keeping in view the same, the instant petition is dismissed against the respondent No. 1 (Insurance Company) and is allowed against the other respondents i.e. the respondents No. 2 and 3. The petitioners are awarded a sum of Rs. Three lac as compensation against the respondents No. 2 and 3 jointly and severally on account of the death of Shri Kishan Chand in an accident involving the vehicle No. HP-48-4190. The compensation amount will be deposited in this Tribunal by the respondent No. 2, the owner of the offending vehicle, within a period of four months from today (as undertaken by him) failing - 4 - which he will be liable to pay the interest at the rate of 9% per annum on the said amount from 1.1.2006 till deposit. The compensation money will be shared by the petitioners equally. Parties to bear their own costs. Memo of costs be drawn. The file, after doing the needful, be consigned to the Record Room.” After remand, the matter was taken up by the learned trial Court and decided afresh. The learned Tribunal, on the evidence on record, held that the claimants- respondents were entitled to the amount as adjudicated. The accident on 6.9.2003 in which Kishan Chand, the husband of respondent No. 1 and father of respondents 2 and 3 died was admitted, the quantum of compensation was however disputed. The Insurance Company disclaimed any liability on the ground that the deceased was a gratuitous passenger in a goods vehicle. The appellants herein pressed the ground that the vehicle was insured comprehensively and the liability, if any, was that of the Oriental Insurance Company respondent No. 4 herein. The learned Court on the settled issues as to whether the accident took place due to the rash and negligent driving of vehicle No. HP 48-4190 held in favour of the claimants. On the evidence, the claim was quantified at Rs.4,08,666/- along with interest @ 9% as held by the learned Tribunal. The - 5 - liability to pay this amount was held to be that of the appellants. While deciding the issue as to the responsibility of the liability, the learned Court holds that there was no pleading as to in which capacity the deceased Kishan Chand was traveling in the ill fated vehicle. Respondents 2 and 3 (appellants herein) had examined one Om Parkash RW-2 who stated that he was a labourer. Kishan Chand deceased had sent him for getting maize. He had traveled in the vehicle along with the crop and the deceased. RW-3 Pardeep Chand was produced to prove that on 6.9.2003 Kishan Chand had come to him and brought two sacks of maize and loaded it in the ill fated vehicle. The evidence of RW-1, Manager, Oriental Insurance Company is that the vehicle HP- 48 4910 is a commercial goods carrier vehicle which does not allow any person to be carried as a passenger etc. It is significant that this evidence of the Insurance Company has remained unrebutted. While analyzing the evidence, the learned Court holds that when considered along with the statement made by the petitioner herein in Court on 25.11.2006 accepting the liability of Rs.3 lakhs along with interest, there was no doubt whatsoever that the deceased was not traveling as owner of the goods. Needless to say that this statement of the owner – appellant was not made the sole basis for arriving at this conclusion but only as a corroborative piece to substantiate the stand of the - 6 - Oriental Insurance Company that the liability, if any, is that of the owner. Learned counsel for the appellants submits that the learned Tribunal has been influenced solely by the fact that at one point of time, the appellant had appeared in Court when the case was fixed for arguments, he had accepted the liability and therefore, there was no proper appraisal of evidence and this statement formed the sole basis of fastening the liability on the appellant. This submission is rejected for the reason that the judgment of the learned Tribunal shows that the claim of the appellants herein that the liability is that of the Insurance Company is based on the defence taken that the deceased was traveling as the owner of the goods. This defence has been rejected by the learned Tribunal holding that the appellants have failed to prove this fact on record of the case. Having come to this conclusion, the Tribunal then considers the statement made by the appellant accepting liability as a corroborative piece and not the sole fact on which liability is founded. Learned counsel submits that the Tribunal was in error in allowing the application under Section 152 of the Code of Civil Procedure which was filed for correcting references to that portion in the judgment holding the Insurance Company liable. I do not see any illegality having been committed. Having held that - 7 - the defence of the appellants/ owners was not established by evidence, there was an obvious error when reference was made that liability was that of the Insurance Company. This was clearly contradictory. If the evidence had been accepted that the deceased was a bonafide carrier of goods, the result would obviously have been different. This submission is accordingly rejected. Learned counsel appearing for respondent No. 4 has made a reference to a number of judgments of the Supreme Court stating therein that gratuitous passengers are not covered by the Insurance Policy and there is no liability on the company to pay for their death/ injury etc. These principles are by now well established and do not require reiteration by reference to decided case law. There is no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. Pending application(s) shall stand dismissed. December 23, 2008 (PC). (Dev Darshan Sud), J.