Back
2015 Supreme(HP) 1197
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir, J.
Naresh Kumar Mahant - Appellant
Versus
Oriental Insurance Company Limited & others - Respondents
FAO No.302 of 2009
Decided on : 09-10-2015
Advocate Appeared:
For the appellant:Mr. Neeraj Gupta, Advocate.
For the respondents:Mr. Ashwani Sharma, Senior Advocate, with Ms. Monika Shukla, Advocate, for respondent No.1. Mr. G.R. Palsra, Advocate, for respondents No.2 to 5. Nemo for respondent No.6.
A person traveling in a vehicle along with his goods cannot be termed as a gratuitous passenger.
Headnote:
Gratuitous Passenger - Motor Accident Claims - The court held that a person traveling in a vehicle along with his goods cannot be termed as a gratuitous passenger, and therefore, the insurer was held liable for the compensation.
Fact of the Case:
The appeal was against an award passed by the Motor Accident Claims Tribunal in favor of the claimants, awarding compensation for the death of a person in a motor accident.
Finding of the Court:
The court found that the deceased was not traveling in the offending vehicle as a gratuitous passenger, but was traveling along with his goods, and therefore, the insurer was held liable for the compensation.
Issues: The only question to be determined in this appeal was whether the Tribunal had rightly exonerated the insurer from its liability.
Ratio Decidendi: The court held that a person traveling in a vehicle along with his goods cannot be termed as a gratuitous passenger, based on previous judgments and the pleadings of the parties.
Final Decision: The appeal was allowed, and the impugned award was modified to hold the insurer liable for the compensation.
Mansoor Ahmad Mir, J.
1. This appeal is directed against the award, dated 31st March, 2009, passed by the Motor Accident Claims Tribunal-cum Presiding Officer, Fast Track Court, Mandi, H.P., (for short, “the Tribunal”) in Claim petition No.112/2005(78/2002), titled Naina Katoch & others vs. Naresh Kumar Mahant & others, whereby a sum
of Rs.11,03,200/-, alongwith interest at the rate of 7.5% per annum, came to be awarded as compensation in favour of the claimants and the owner-insured was saddled with the liability, (for short, the “impugned award”).
2. The claimants, the driver and the insurer have not questioned the impugned award on any count. Thus, the same has attained finality so far it relates to them.
3. Feeling aggrieved, the owner/insured has questioned the impugned award on the ground that the Tribunal has fallen in error in holding that the deceased was traveling in the offending vehicle as gratuitous passenger and, therefore, has wrongly saddled the owner with the liability.
4. Thus, the only question to be determined in this appeal is - Whether the Tribunal has rightly exonerated the insurer from its liability?
5. To settle the above controversy, a reference may be made to the pleadings of the parties. The claimants filed the claim petition, which was amended later on, wherein, in paragraph 24, they have pleaded that the deceased, namely, Kartar Singh was traveling in the truck bearing registration No.HP-34-3069 alongwith goods, which was being driven by its driver, namely Sarwan Kumar rashly and negligently, as a result of which, the deceased fell down and got crushed under the rear tyre of the offending vehicle.
6. The owner and the driver filed the reply in which they have not denied the fact that the deceased was not traveling in the offending vehicle alongwith his goods, rather have admitted the said fact. Thus, it cannot be disputed that the deceased was not traveling in the offending vehicle alongwith his goods.
7. The Tribunal, after examining the pleadings of the parties, framed the following issues:-
“1. Whether Kartar Singh died as a result of rash or negligent driving of respondent No.2. OPP
2. In case issue No.1 is proved, to what amount the petitioners are entitled and from which of the respondent? OPP
3. Whether respondent No.2 was not having a valid and effective driving licence? If so, its effect? OPR-3
4. Whether the deceased was a gratuitous passenger and as such, respondent No.3 is not liable? OPR-3
5. Relief.”
8. From the above, it is clear that the controversy needs to be settled in the instant appeal pertains to issue No.4. The insurer has not led any evidence despite the fact that it had to discharge the onus viz. a viz. issues No.3 & 4 and had also to lead evidence in defence to claim exoneration. Since the insurer has failed to lead any evidence, therefore, in the absence of any evidence having been led by the insurer, the Tribunal has fallen in error in holding that the deceased was a gratuitous passenger, which is against the mandate of Order 14 of the Code of Civil Procedure. It was for the insurer to plead and prove that the owner/insured had committed willful breach of the terms and conditions of the insurance policy, in which it has failed. As has been noted above, the claimants have specifically pleaded in the Claim Petition, which fact has been admitted by the owner and the driver, by filing reply to the Claim Petition, that the deceased was traveling in the offending vehicle as owner of the goods.
9. This Court in FAO No.615 of 2008, titled United India Insurance Company Ltd. vs. Savita Devi and others, decided on 7th August, 2015, FAO No.682 of 2008, titled Oriental Insurance Co. Ltd. vs. Mahender Singh and others, decided on 7th August, 2015, and catena of other judgments, has already held that once a person is traveling in a vehicle alongwith his goods, he cannot be termed as a gratuitous passenger.
10. Having said so, the findings returned by the Tribunal on issue No.4 are set asid
