IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 191 of 2006 Reserved on: 19.5.2010 Date of decision: 22.06.2010 Oriental Insurance Company ... Appellant Versus Smt. Pano Devi and Ors. ... Respondents Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. G.C. Gupta, Senior Advocate with Mr. Ashish Jamalta, Advocate. For the respondents: Mr. K.B. Khajuria, Advocate, for respondents No. 1 and 2. Mr. Rameshwar Sharma, counsel for respondent No. 3. V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act against the award of the Court of learned Motor Accident Claims Tribunal, Chamba Division, Chamba, dated 23.3.2006, vide which the claim petition filed by the respondents No. 1 and 2 under Section 166 of the Motor Vehicles Act, 1988, hereinafter referred to as ‘the Act’, was allowed and award of Rs.2,59,000/- was passed in favour of the claimants and proforma respondent No. 4 Smt. Hameeru. However, it was directed 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 that the amount shall be payable by respondent No. 3/Insurance Company i.e. appellant. 2. Briefly stated, the facts of the case are that a petition under Section 166 of the Act was filed by the petitioners and proforma respondent No. 4 Smt. Hameeru, on account of death of Devi Ram, in a vehicular mishap on 8.9.1999, at Kaley-Dhar at 8.30 AM. It was alleged that Devi Ram, now deceased, was travelling by the ill-fated vehicle N.C. to Bhanjaru, which met with an accident and the said Devi Ram suffered injuries, remained under treatment and died thereafter. The petition was filed by his widow, minor daughter and mother for grant of compensation. 3. Respondent No. 1 i.e. the owner of the vehicle pleaded that the deceased was travelling in the vehicle as labourer for loading and unloading the goods at the relevant time. Respondent No. 3 pleaded that the driver was not having a valid and effective driving licence to drive the vehicle and the deceased was a gratuitous passenger and as such, respondent No. 3 is not liable to pay any compensation. 4. On the pleadings of the parties, the following issues were framed by the learned Tribunal:- 1. Whether the accident took place due to the rash and negligent driving of vehicle no. HP 44-0751 by its driver-Rattan Chand, in which one Devi Ram died as alleged? OPP 2. Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OP Parties. 3 3. Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of accident as alleged? OPR-3 4. Whether the vehicle was not insured with the respondent no.3 as alleged? OPR-3 5. Whether the vehicle was being plied in contravention of the terms and conditions of the insurance policy as alleged? OPR- 3 6. Whether the deceased was a gratuitous passenger, if so, its effect as alleged? OPR3 7. Whether the petition is not maintainable as alleged? OPR-3 8. Relief. 5. Parties led their evidence and the learned Tribunal vide its impugned award decided Issues No. 1 to 7 in favour of the petitioners and as against the respondents and accordingly, directed that the petitioners are entitled to a sum of Rs.2,59,000/- from respondent No. 3/Insurance Company. 6. I have heard learned counsel for the parties and have gone through the record of the case. 7. Two grounds have been taken by the learned counsel for the appellant as against the award passed by the learned Tribunal. The first ground taken was that the findings under Issue No. 3 are wrong. It was urged that the document Ext. R-1 i.e. attested copy of the licence produced by respondent No. 1 amply proves that the same was not a valid one for driving the vehicle of the type which met with the accident and, therefore, there was breach of the conditions of the policy. 8. A perusal of the record of the case shows that respondent No. 2/driver did not examine any witness and the 4 counsel for respondent No. 2 made a statement that he tenders in evidence an attested copy of the driving licence Ext.R-1.There is nothing on record to show that the original was shown during the trial of the case and was returned to learned counsel for respondent No. 2 and, therefore, it cannot be said if the original licence was in possession of respondent No. 2 or not. Moreover, when the statement was recorded and document was tendered in evidence, no objection appears to have been taken by respondent No. 3 that the document has not been properly exhibited or proved in evidence. Therefore, the document in question cannot be looked into since it was only an attested copy of the driving licence, which had been tendered in evidence. In the absence of formal proof, the same cannot be looked into and considered by the Court as to what it conveys. The submissions of the learned counsel for the appellant cannot be accepted that since the document was on the record and it proves that it was not a driving licence, it could be looked into. In the absence of the formal proof, the copy of the driving licence tendered in evidence could not have been looked into and the findings given by the learned Tribunal. However, in regard to the question as to whether it has to be proved that the licence in question was valid one or not, the responsibility lies upon the Insurance Company to prove that the driving licence in question was not a valid one. They were required to summon the witness from the Licencing Authority to prove that the document in question was not a valid one, in which they have failed. The onus is upon the Insurance Company to prove this fact and in the absence of onus having been discharged, the Insurance Company cannot escape from its liability. Moreover, it is not the case of the Insurance Company that they sought direction of the Court to 5 direct respondent No. 2 to produce the original licence, if any, which could have been got verified by the Insurance Company. On the other hand, the document had been produced during the trial of the case and before starting of the evidence by respondent No. 3, the prayer could have been made for summoning the witness from the Licencing Authority to prove that the copy of driving licence Ext. R-1 was valid one or not. In view of the fact that the onus is upon the Insurance Company to prove that the driving licence in question was fake one, which had been produced during the trial of the case and that it was not produced by the driver, they could not get it verified with the original licence. Therefore, it follows from the above discussion that the appellant has failed to discharge the onus which was upon them and as such, it cannot be held that there was any breach of any condition of the insurance policy or that respondent No. 2 was not possessing a valid and effective driving licence. 9. Coming to the other question, a plea has been taken by the appellant that the deceased was a gratuitous passenger and, therefore, the Insurance Company is not liable. On the other hand, a plea has been taken by the claimants as well as the owner that the deceased was employed as a labourer for carriage of goods and five labourers were insured and as such, the deceased cannot be termed as a third party and cannot be held to be a gratuitous passenger and therefore, the Insurance Company is liable. 10. A perusal of the claim petition filed by the petitioners shows that the occupation of the deceased was alleged as a labourer and an agriculturist. It was no where alleged that the deceased was 6 travelling in the vehicle as a gratuitous passenger or as owner of the goods, though it was alleged that the deceased was travelling in the ill-fated vehicle. In the reply filed by respondent No. 1 i.e. the owner, a plea was taken that the deceased was a labourer at the relevant time and nothing more was alleged in the reply filed by respondent No. 1. However, in the reply filed by respondent No. 3, they had taken the plea that the deceased was gratuitous passenger. The provisions of C.P.C. do not apply strictly to such petitions and there were not specific allegations in this regard by the petitioners. They had led evidence to show that the deceased was going in the vehicle for unloading and loading. A specific question was put up to PW-2 Smt. Pano Devi, who denied the suggestion that her husband was not working for unloading and loading. There is no specific evidence led by respondent No. 3/appellant that the deceased was a gratuitous passenger in the vehicle in question. They only examined RW-1 Gian Chand, Branch Manager of the Insurance Company to show that the vehicle was goods carriage vehicle and there were 30-35 persons in the vehicle at that time. This statement he had made on the basis of the report submitted by the investigator Mark-X, but the investigator was not examined to prove that there were 30-35 passengers. Moreover, respondent No. 3 has not led any evidence to show that according to the terms and conditions of the policy, the passengers traveling in the goods vehicle were not covered or how many passengers were permitted to travel in the vehicle who were insured. These facts could have been made clear by the report of the investigator, who has not been examined. There is nothing in the statement of RW-1 Gian Chand that the vehicle was not insured qua any of the passengers travelling in the vehicle, though in cross- 7 examination RW-1 clearly admitted that according to the policy of the Insurance Company Ext. RW1/A, 5 labourers were insured alongwith the vehicle. This clearly solves the controversy and once five labourers were insured and the deceased was traveling as one of the labourer and there is nothing on record to establish that the number of labourers was 30-35 and as such, it cannot be said that there is any evidence to prove that the deceased was a gratuitous passenger or was not travelling in the said vehicle as a labourer. Respondent No. 2 had examined himself and has stated that he had engaged the deceased for loading and unloading of the goods on payment of Rs.50/- per day. He also stated that apart from the deceased one another person Karam Chand had also been employed in the vehicle who died and there were no other persons in the vehicle except these two persons. According to the admission made by RW-1 that 5 labourers were insured and as such, the appellant was rightly held liable to pay the amount in question. 11. The learned counsel for appellant made a reference to the decision in New India Assurance Co. Ltd. Vs. Vedwati & Ors., AIR 2007 Supreme Court 1334, wherein it was held that the Insurance Company is not liable to pay compensation in case of injury or death of gratuitous passenger. 12. The learned counsel for the appellant also relied upon the decision in National Insurance Co. Ltd. Vs. Cholleti Bharatamma and others, 2008 ACJ 268, wherein it was held that the Insurance Company is not liable for the death of or injuries sustained by passengers traveling in goods vehicle gratuitously. 8 However, the Insurance Company is liable for passengers travelling in a goods vehicle alongwith their goods. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is dismissed. ( V.K. Ahuja ), June 22, 2010 Judge (BSS) 9