F.A.O. No. 2363 of 2005 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, AT CHANDIGARH. F.A.O. No. 2363 of 2005 (O&M) Date of Decision:-14.09.2011 Hari Singh ......Appellant Versus The New India Assurance Company Limited and others ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N. JINDAL Present:- Mr. Sudhir Aggarwal, Advocate for the appellant. Mr. Vishal Chaudhary, Advocate, for Mr. Vinod Chaudhary, Advocate, for Insurance Company. *** A.N. JINDAL, J. This appeal is directed against the judgment/award dated 02.09.2004 passed by the Motor Accident Claims Tribunal, Faridabad, whereby respondent Nos. 2 to 7 were awarded compensation to the tune of Rs.2,28,400/- against the appellant and respondent No.8-Khoob Singh jointly and severally. Shakuntala was also further awarded a sum of Rs.5000/- on account of loss of consortium. This award also carried interest at the rate of 9% per annum from the date of institution of the claim petition till final realization. However, the claim petition qua New India Assurance Company-respondent No.1 (hereinafter referred to as 'respondent No.1') was dismissed. Feeling aggrieved by the impugned award, Hari Singh- appellant (owner of the offending vehicle) has come up in appeal before this F.A.O. No. 2363 of 2005 (O&M) 2 Court. Without raising any dispute about the fault on the part of Khoob Singh-respondent No.8, learned counsel for the appellant has urged that since Ramesh Chand-deceased was accompanying the goods, to be carried from Jaipur to Palwal and was coming in the offending Tata 709 bearing registration No.HR-26-GA-0730, therefore, the truck being insured with New India Assurance Company and Khoob Singh holding a valid driving licence, respondent No.1-Insurance Company was liable to pay the compensation to respondent Nos. 2 to 7. Learned counsel for respondent No.1 has urged that the appellant himself, having denied the factum with regard to the travelling of Ramesh Chand along with the goods and also with regard to carrying of the goods in that truck, cannot blow hot and cold in the same breath and contend that Ramesh Chand was travelling with the goods. Having heard rival contentions, I do not find any merit in the arguments advanced by learned counsel for the appellant. In order to adjudicate real question involved in the controversy, it is desirable to go into the pleadings. The claimants, while seeking compensation on account of the death of Ramesh Chand, took plea that on the relevant date i.e. intervening night of 12/13.11.2001, he along with Suraj son of Nathe Ram, resident of House No. 2325, Kot Mohalla Gupta Ganj Bazar, Palwal, after loading 141 groundnut bags in Tata-709 bearing registration No. HR-26- GA-0730 was going from Jaipur to Palwal and the offending vehicle met with an accident on the way, in which Ramesh Chand had died, whereas Khoob Singh-driver as well as son of the owner Hari Chand-appellant ran away. These pleadings were denied by respondent No.1, so also the appellant. The appellant, while giving reply to para No.10 of the claim F.A.O. No. 2363 of 2005 (O&M) 3 petition, stated that the deceased was not in the offending vehicle with 141 bags of groundnuts. He made total denial while stating that the appellant was falsely implicated in the case. It may further be observed that the appellant had also appeared in the witness box and he had stated that his vehicle was never hired by anybody on 12.11.2001 or 13.11.2001 for loading 141 bags of groundnuts. He never issued any receipt to anybody for loading the said groundnuts. He further admitted that he is owner of the offending truck and it is a goods carrier vehicle. It would be pertinent to mention here that in order to dispose of the question involved in the controversy, the trial Court had framed issue No.2, which is reproduced as under:- “2. If issue No.1 is proved, whether the petitioners are entitled to what amount of compensation and from whom? OPP” While deciding the above said issue, the trial Court has observed as under:- “...... It has been duly proved that Suraj PW-2 along with Ramesh Chand (since deceased) was travelling in the goods vehicle which was not meant for passengers. Admittedly, the offending vehicle Tata 709 bearing No. HR-26-GA/0730 in the name of respondent No.2 vide policy Ex.P4/Ex.R2 was a goods vehicle which was insured with the Insurance Company and the same was not for carrying passengers and no premium was taken for carrying passengers and therefore, the risk of Ramesh Chand (since deceased) was not covered under the insurance policy Ex.R2/Ex.P4. Reference may be made to National Insurance Co. Ltd. Vs Ajit Kumar and others, AIR 2003 Supreme Court 3093, where it was held that Insurance Company is not liable to pay any compensation for carrying passengers in a goods vehicle which is not contemplated by Motor Vehicles Act, 1988. Similarly, the Hon'ble Apex Court in Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy and others, 2003 ACJ 468, has held that the Insurance Company is not liable for the passengers for travelling gratuitous or unauthorisedly in a goods F.A.O. No. 2363 of 2005 (O&M) 4 vehicle and the Motor Vehicles Act does not enjoin any statutory liability on the owner to get its vehicle insured for any passenger travelling in a goods carriage. Similarly, the Hon'ble Punjab & Haryana High Court in National Insurance Company Limited Versus Gulab Singh and others, 2003 (3) RCR (Civil) 659, has held that Insurance Company is not liable to pay amount of compensation in case the injured/deceased were found travelling in goods vehicle in view of the judgment of the Apex Court in New India Assurance Company Ltd. Vs. Asha Rani and others, 2003 (1) RCR (Civil) 671 (SC). The ratio of the above rulings is fully applicable in the facts and circumstances of the instant case, where it is admitted that the deceased Ramesh Chand was travelling in Tata 709 bearing No. HR- GA/0730 which was a goods carrier vehicle and the same was not meant for carrying the passengers and therefore, the Insurance Company is not liable to pay the compensation amount as per settled law on the subject. Taking this view of the matter, respondent No.1 being the person at fault and respondent No.2 being the Master and owner of the offending vehicle are jointly and severally liable to pay the compensation amount to the petitioners.” The appellant has not proved on record that any premium has been paid for carrying the passengers. Therefore, the risk of Ramesh Chand (since deceased) was not covered under the Insurance Policy, Ex.R2/Ex.P4. It may further be mentioned here that since the appellant himself has denied about carrying Ramesh Chand or his goods in the offending vehicle by way of his pleadings and the statement, now he cannot come to lay the claim over the Insurance Company by stating that the company was liable to pay the compensation for the deceased, a passenger as well. Resultantly, finding no merit in the appeal, the same is hereby dismissed. ( A.N. JINDAL ) JUDGE September 14, 2011 ajp