IMPORTANT POINT
Accident - Third party risk - Third party risk does not include gracious passenger, in a goods vehicle.

ARVIND KUMAR, J.

1. In this appeal, appellants (i.e. owner and driver of offending truck) have challenged award dated 5.9.1988 passed by the Motor Accident Claims Tribunal, Rohtak, awarding a sum of Rs.90,000/- as compensation to the claimants(respondents 1 to 3 herein) along with interest at the rate of 12 per cent per annum from the date of claim petition till payment. Insurance company was absolved of its liability and thus, claim petition qua it was dismissed.

2. In brief, the facts as stated in the claim petition, are that on 11.7.1986, a marriage party was travelling by two trucks, namely, HYK- 1827 and HYR-1056 and was heading for village Sirsar. Bhup Singh,deceased, was travelling by truck No.HYK-1827. The said truck over-turned at Rohtak bye-pass point which leaves Delhi-Rohtak road, as a result of which Bhup Singh sustained injuries and simultaneously died on 13.7.1986. His widow and two minor children (respondents 1 to 3 herein) claimed compensation on account of his death. Upon notice of the claim petition, the driver and owner of the offending truck in their joint written statement disputed the fact that their truck was carrying marriage party and instead pleaded that the truck was carrying goods including valuables and ornaments for transportation to village Sirsar and that owners of the said goods, who were three in number, were travelling on the truck for the sake of protection of the goods and further loading and unloading the same. It was pleaded that the truck was being used for the purpose of carrying goods. Insurance company in its written statement denied its liability on the ground that the vehicle in question was being used for carrying passengers whereas its insurance was covered for the purpose of carrying goods.

3. On framing of issues by the Tribunal, the parties led evidence in support thereof. On appreciation of evidence so adduced by the parties, the learned Tribunal found that the offending truck was being driven by its driver rashly and negligently and accordingly, held the driver and owner liable to pay compensation and passed the award in the manner indicated above.

4. Feeling dissatisfied, the owner and the driver of the offending truck have come up in appeal, while on the other hand, crossobjections have been filed by the claimants for enhancement of compensation so awarded to them by the Tribunal.

5. Counsel for the parties have been heard.

6. The only ground taken by the appellants in the instant appeal is that there was no marriage party in the truck; rather there were only three persons travelling in the truck in order to safe-guard the valuable goods like garments and jewellery which were being taken for marriage purpose. The Tribunal has erred in absolving the insurance company of its liability. The said plea has been taken with reference to statement of RW-1 Ishwar Singh, driver of the truck. That plea of the appellants has been analysed with reference to the evidence led before the Tribunal. RW-1 Ishwar Singh being the driver of the offending truck would certainly depose according to his suitability. No doubt, PW-2 Azad Singh in crossexamination has stated that in the truck there was no marriage party. He along with Suresh and Bhup Singh were in the truck, that too in order to keep a watch over the articles and for that purpose the truck was engaged. Azad Singh has certainly given statement beyond pleadings and has tried to make improvement. In the claim petition, there is a clear cut plea that the deceased was travelling in truck No.HYK-1827 upto village Sirsar with the marriage party and the driver of the said truck was negligent in driving the same. PW-2 Azad Singh is also the author of the FIR, Exhibit P-2, stating that two trucks bearing registration Nos. HYK-1827 and HYR-1056 were carrying marriage party for Sirsar on 11.7.1986. Now his averment that truck No.HYK-1827 was not carrying any marriage party is certainly an improvement. In this context, the learned Tribuna