Point of Law : Wherein insurer was directed to pay compensation to claimants in the first instance and to subsequently recovered the same from owner - On strength of aforesaid judgment, he contended that even if deceased was to be held as a gratuitous passenger, insurer still should be directed to pay compensation to claimants in first instance and to recover it from insured later.

JUDGMENT :

Satyen Vaidya, J.

By way of instant appeal, the owner/insurer has assailed Award dated 01.03.2019 passed by Motor accident Claims Tribunal, Shimla, H.P. in MACP No. 19-T/2 of 2014 on the ground that he was entitled for indemnification from insurer/respondent No.5 herein.

2. Vehicle bearing registration No. HP-63-1602 (Bolero Camper) manufactured by Mahindra and Mahindra was owned by the appellant herein (hereinafter referred to as the “owner”). On 03.10.2013, the above said vehicle met with an accident at place near Janol, Tehsil Kotkhai, District Shimla, H.P. At the time of accident, the vehicle was being driven by the owner. One of the occupants of the vehicle Shri Jeet Bahadur died as a result of injuries suffered by him due to accident. Respondents No.1 to 4 herein (hereinafter referred to as “claimants”) preferred petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as the “Act”) claiming compensation against the owner and the insurer by alleging the acts of rashness and negligence in driving the vehicle by the owner.

3. The claimants averred in the claim petition that deceased Shri Jeet Bahadur was labourer in the offending vehicle and he was engaged for loading and unloading cement, sand and steel from Kotkhai. It was further submitted that the deceased was travelling in the vehicle with Shri Gian Chand.

4. The owner in his reply to the claim petition filed before the learned Tribunal submitted that the deceased Shri Jeet Bahadur was engaged for loading and unloading purpose. It was also averred that the deceased was travelling in the vehicle in the capacity of owner of goods as he was carrying the Karyana items from Kotkhai to village Reog. He further admitted that the deceased was travelling in the vehicle with Shri Gian Singh and the deceased was engaged for the purpose of loading and unloading of iron, sand and cement from Kotkhai.

5. The insurer also contested the claim petition on various grounds and for the purpose of adjudication of this petition, it will be sufficient to notice that one of the specific objection raised on behalf of the insurer was that it was not liable to pay compensation as deceased was travelling in the vehicle as gratuitous passenger.

6. Learned tribunal framed the following issues:

1. Whether on 03.10.2013, deceased Jeet Bahadur died on account of rash and negligent driving of vehicle bearing No. HP-63-1602, being driven by Kishori Lal, as prayed for? ...OPP.

2. Whether the petitioners are entitled to compensation amount, if so, from whom and what extent?...OPP

3. Whether the petition is not maintainable in the present form, as deceased Jeet Bahadur was traveling in the light of goods vehicle No. HP-63-1602 (Bolero Camper) as a gratuitous passenger, as alleged?...OPR

4. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy, as alleged?..OPR

5. Whether the petitioners have no locus standi to file the present petition, as alleged?..OPR.

6. Whether the driver of the vehicle was not possessing valid and effective driving licence to drive the vehicle at the time of accident, as alleged?... OPR.

7. Relief.

7. Issues No.1, 2 and 4 were decided in affirmative. Issues No.5 and 6 were decided in negative. While deciding issue No.3 though the petition was held to be maintainable, but the deceased was held as gratuitous passenger. Petition was allowed and the claimants were held entitled to compensation of Rs.14,75,200/- with interest @9% per annum from the date of filing of petition till realization. However, the insurer was exonerated and the owner was held liable to satisfy the claim.

8. I have heard learned counsel for the parties and have also carefully perused the entire record.

9. Learned counsel for the owner/appellant contended that the liability to satisfy the award was wrongly fastened upon the owner, whereas, it was well established on record that the deceased was travelling in the vehicle as owner of goods. In alternative,