The insurer is liable to satisfy the award amount if there is sufficient evidence that the claimant was not traveling in the offending vehicle as a gratuitous passenger.

Mansoor Ahmad Mir

1. The owner-insured has questioned the award dated 4th June, 2009, passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H.P (hereinafter referred to as “the Tribunal”) in M.A.C. Petition No. 127-MAC/2 of 2006, whereby compensation to the tune of `75,000/- with interest at the rate of 7.5% per annum, from the date of filing of the claim petition till its realization, came to be awarded in favour of the claimant respondent No. 1, herein and against owner-appellant herein and driver-respondent No. 2 herein (for short, the “impugned award”).

2. The claimant, driver and insurer have not questioned the impugned award. Thus, it has attained finality so far as it relates to them.

3. Thus, the only question to be determined in this appeal is-whether the insurer or the owner has to satisfy the impugned award?

4. Issue No. 1 is not in dispute. However, I have gone through the impugned award. There is ample evidence on the record to the effect that driver, namely, Bankey Lal has driven vehicle-Mahindra Bolero bearing registration No. HP-17B-0311, rashly and negligently, on 09.06.2005, at about 9.00 a.m., near Jawalapur, Tehsil Paonta Sahib and caused the accident. Thus, the findings recorded by the Tribunal on Issue No. 1 are upheld.

5. The adequacy of compensation is also not in dispute. Accordingly, the findings recorded by the Tribunal on Issue No. 2 are also upheld.

6. Issues No. 3 to 6 are inter-linked. It was for the insurer to prove these issues.

7. Respondent-insurer have examined Suresh Kumar (RW-1) and Sub Inspector Liaq Ram (RW-3). Driver Bankey Lal also appeared in the witness box as RW-2.

8. It is pleaded in the claim petition that claimant was traveling in the offending vehicle as labourer and was also having goods in his possession, which he was carrying in the said vehicle. There is no denial to this fact.

9. The seating capacity of the vehicle was ‘5+1’. Thus, the risk is covered in terms of the insurance policy.

10. Learned Counsel for the insurer has argued that the injured was traveling in the offending vehicle as a gratuitous passenger. It was pleaded before the Tribunal that the injured was traveling in the vehicle as a labourer and had also loaded goods in the said vehicle.

11. In the given circumstance, there are sufficient grounds to hold that the injured was not traveling in the offending vehicle as a gratuitous passenger, but was traveling as a labourer alongwith the loaded goods.

12. It was also for the insurer to plead and prove that the owner has committed willful breach, has led no evidence.

13. Having said so, I am of the considered view that the Tribunal has fallen in error in holding that the owner has committed willful breach. Accordingly, the findings returned on issues No. 3 to 6 are set aside.

14. Viewed thus, the insurer-Insurance Company is saddled with liability and is directed to satisfy the award amount. The insurer is directed to deposit the award amount before the Registry within six weeks from today. On deposit, the Registry to release the same in favour of the claimant, strictly as per the terms and conditions contained in the impugned award, through payees account cheque.

15. The owner-insured has deposited the statutory amount to the tune of ` 25,000/-, is awarded as costs in favour of the claimant. The Registry also to release the same in favour of the claimant.

16. Accordingly, the impugned award is modified, as indicated above and the appeal is disposed of.

17. Send down the records after placing copy of the judgment on record.