Point of Law : Judgments cited by learned counsel for claimants do not lay down law with regard to principle of “pay and recover’ in so far as liability arises in respect of gratuitous passenger in a Goods Carriage Vehicle as the question as such was not before the Hon’ble Supreme Court for consideration.

JUDGMENT :

SATYEN VAIDYA, J.

1. By way of instant appeal, appellant/insurer has assailed the award dated 25.8.2014, passed by learned Motor Accident Claims Tribunal (III), Shimla, H.P. (for short “the Tribunal”) in MAC petition RBT No. 148-S/2 of 2012/10 on the grounds, firstly that deceased Roshan Lal, on account of whose death, compensation was claimed, was sitting in the Goods Carriage Vehicle as gratuitous passenger and secondly in alternative, in absence of any proof of his income on record, the daily wage as per the Government notification, issued by the Labour Department during the relevant period was liable to be considered.

2. Brief facts necessary for adjudication of appeal are that on 13.3.2010 at about 7.00 P.M. vehicle (Bolero Pickup) No. HP-08A-0462 met with an accident. Respondent No. 6 herein was the driver of the said vehicle. The vehicle was owned by respondent No. 5 herein. Two persons namely Roshan Lal and Liak Ram were occupants in the vehicle besides the driver. Sh. Roshan Lal died as a result of injuries suffered by him on account of the aforesaid accident. Respondents No. 1 to 4 herein/claimants were the legal representatives of late Sh. Roshan Lal.

3. The claim petition was filed under Section 166 of the Motor Vehicles Act (for short “the Act”) by the claimants for grant of compensation on account of death of Sh. Roshan Lal. It was alleged that the vehicle was being driven by the driver in rash and negligent manner, which caused the accident. Sh. Roshan Lal was claimed as occupant of the vehicle in the capacity of owner of goods. It was averred that deceased was carrying sand in the vehicle.

4. The owner and driver of the vehicle filed their reply to the claim petition. It was submitted by them that deceased was sitting in the vehicle as owner of goods. The insurer separately contested the petition on various grounds including breach of terms and conditions of policy, deceased being gratuitous passenger in the vehicle etc.

5. Learned Tribunal framed the following issues:

“(i) Whether deceased Roshan Lal had died in a motor vehicle accident on 13.03.2010 due to rash and negligent driving of respondent No. 2? OPP

(ii) If issue No. 1 is proved in affirmative to what amount of compensation petitioners are entitled to? OPP

(iii) Whether respondent No. 3 can be held liable to indemnify the owner? OPR-2

(iv) Whether the driver was not having valid driving licence at the time of accident? OPR-3.

(v) Whether the vehicle in question was driving in breach of terms and conditions of insurance policy? OPR-3

(vi) Whether deceased was travelling as a gratuitous passenger in the vehicle at the time of accident? OPR-3

(vii) Relief.”

Issues No. 1 to 3 were decided in affirmative and remaining issues were decided in negative. The claim petition was allowed and a sum of Rs. 11,96,520/- was awarded in favour of claimants with interest at the rate of 7.5% per annum from the date of filing of the claim petition. The liability to pay the compensation amount was fastened upon the insurer.

6. I have heard learned counsel for the parties and have also gone through the record carefully.

7. It is not in dispute that the vehicle No. HP-08A-0462 “Bolero Camper” was a Goods Carriage Vehicle. The question arises whether the deceased person Shri Roshan Lal was travelling in the vehicle as owners of goods.

8. Section 147 of the Act reads as under:

“147 Requirements of policies and limits of liability:

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which:

(a) is issued by a person who is an authorised insurer.

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2):

(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the veh