JUDGMENT Sanjay Karol, J.(Oral). :-M/s. National Insurance Co. Ltd., insurer has filed the present appeal assailing the impugned award dated 28.11.2007 passed by the Motor Accident Claims Tribunal, in M.A.C. No.14 of 2004 titled as Kamal Dev vs. Piru Ram & Ors. awarding compensation of Rs.6,24,008/- in favour of the claimant, who sustained 60% permanent disability in relation to his left lower limb. 2. The challenge is on the ground that the Court below wrongly appreciated the evidence while deciding issue No.4 to 1 the effect that petitioner was not travelling as a gratuitous passenger in the vehicle at the time of the accident. 3. The challenge is limited only to issue No.4. Brief facts giving rise to filing of the present appeal are as under:- Claimant, respondent Kamal Dev filed a petition under Section 166 of the Motor Vehicles Act, 1968 (hereinafter referred to as ‘the Act’) claiming that he was employed as a Conductor on vehicle No.HP-11-3747 on 18.10.2003. The vehicle was on its way from Ropar (Punjab) to Darlaghat (Himachal Pradesh) and when it reached near a place called Swarghat he got down from the same to get the bills/vouchers checked at the Excise Barrier. Due to paucity of parking space, the vehicle could not be parked, hence the driver proceeded ahead towards Bilaspur and after some distance parked the vehicle near Hotel Hill Top. The claimant got the papers examined at the Check Post and took lift in vehicle No.HP-24-6533, owned by respondents Basant Singh and Krishan Chand and being driven by Shri Rakesh Kumar upto the place where his vehicle had been parked near Hotel Hill Top. When the vehicle approached his truck, he requested Shri Rakesh Kumar to stop the vehicle so that he could alight from the same. Petitioner had just got down from the vehicle when Rakesh Kumar suddenly accelerated the vehicle as a result of which his left leg came under the rear tyres of the truck, thus injuring him seriously. The accident occurred due to the negligent driving of the vehicle by Shri Rakesh Kumar. Petitioner was taken for medical treatment, first to the Zonal Hospital and then to IGMC Hospital at Shimla where he remained admitted from 19.10.2003 to 11.11.2003 and his leg had to be amputated. FIR No. 344/203 dated 18.10.2003 was registered against the driver of the vehicle. Petitioner was taken for medical treatment, first to the Zonal Hospital and then to IGMC Hospital at Shimla where he remained admitted from 19.10.2003 to 11.11.2003 and his leg had to be amputated. FIR No. 344/203 dated 18.10.2003 was registered against the driver of the vehicle. At the time of the accident, petitioner aged 17 years was gainfully employed on a monthly salary of Rs.5000/-. 4. The respondent-owner and the driver filed a reply disputing any negligence on the part of the driver. On the contrary, negligence of the petitioner was pleaded. As per their version, while the vehicle was in motion petitioner tried to get down and since he was negligent, his foot got entangled in the foot rest which caused the accident. The petitioner as such being a gratuitous passenger was not entitled to any compensation. The insurer took a similar defence. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the petitioner has sustained injuries in the accident which has taken place due to the rash and negligent driving of respondent No.2 of truck No. HP-24-6533? …..OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom? …..OPP 3. Whether the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident. If so, its effect? …..OPR-3 4. Whether the petitioner was travelling as a gratuitous passenger, if so, its effect? …..OPR-3 5. Opportunity to lead evidence was afforded to the parties. 6. Appreciating the material on record, the Tribunal arrived at the conclusion that the petitioner had sustained injuries in an accident which had taken place due to rash and negligent driving of Shri Rakesh Kumar, driver of vehicle No. HP-24-6533. The Tribunal found that the petitioner had proved on record that the accident took place after he had fully deboarded/alighted the truck and was standing on the road. Hence, he seized to be a passenger travelling in the truck. The driver was found to have possessed with a valid and effective driving licence. 7. Keeping in view the petitioner’s age of 17 years, his monthly income Rs.2100/- and permanent disability being 60%, by applying a multiplier of 16, the Tribunal determined the loss of income to be Rs.4,03,200.00. Hence, he seized to be a passenger travelling in the truck. The driver was found to have possessed with a valid and effective driving licence. 7. Keeping in view the petitioner’s age of 17 years, his monthly income Rs.2100/- and permanent disability being 60%, by applying a multiplier of 16, the Tribunal determined the loss of income to be Rs.4,03,200.00. Based on the material on record, following compensation was awarded by the Tribunal:- (i) Medical expenses Rs.20,208.00 (ii) Transport charges Rs. 4,600.00 (iii) For attendant Rs.18,000.00 (iv) Special diet Rs. 6,000.00 (v) Loss of income Rs.42,000.00 (vi) Pain and suffering Rs.50,000.00 (vii) Loss of amenities of life, inconvenience and hardship Rs.80,000.00 etc (viii) For loss of future income Rs.4,03,200.00 Total Rs. 6,24,008.00 I have heard the learned counsel for the parties and also perused the record. In all, petitioner examined following witnesses:- Dr. Amarjeet (PW-1), Shri Shiv Kumar (PW-2), Dr. Mohit Arora (PW-3), Shri Bhagat Ram (PW-4) & Shri Kamal Dev (PW-5). 8. Respondents, including the insurer did not lead any evidence but only tendered in evidence the Registration Certificate (Ext.R-1), driving licence (Ext.R-2), route permit (Ext.R-4) and the Insurance Policy (Ext.R-5). 9. For the limited purpose of deciding the appeal, relevant statements of only PW-4 & PW-5 need to be considered. 10. Claimant (PW-5) has categorically deposed that he took lift in vehicle No. HP-24-6533 upto the place where his vehicle had been parked near Hotel Hilltop. He had got down from the said vehicle when its driver suddenly drove the vehicle due to which his left leg came under the rear wheels of the conductor side of the vehicle. Lot of people had gathered at the site when the police came. He categorically deposed that the accident took place due to the negligence of the driver of the said vehicle. He clarified that at the time of the accident he had fully deboarded the truck and was standing on the road. 11. The insurer has examined him but, however, nothing has come out from which it could be inferred that his version is false or unreliable. He has denied the suggestion that the accident occurred due to his negligence as while alighting the vehicle his foot got entangled with the foot rest due to which he fell down. 12. 11. The insurer has examined him but, however, nothing has come out from which it could be inferred that his version is false or unreliable. He has denied the suggestion that the accident occurred due to his negligence as while alighting the vehicle his foot got entangled with the foot rest due to which he fell down. 12. Importantly, there is no cross-examination to the petitioner’s statement that the driver had driven the vehicle suddenly which was the cause of the accident. 13. His version stands corroborated byan independent witness, namely, Shri Bhagat Ram (PW-4) who has stated that on the said date he was present at the site as he had gone to make purchases for his shop which he owns at Nauni Chowk. He has mentioned the name of the shop from where he usually makes the purchases. Since he happened to be present at the site he witnessed the occurrence of the accident. He saw one boy getting down from the conductor side of the vehicle, when the driver of the truck suddenly drove as a result of which his leg came under the rear tyres of the vehicle. He along with other people gathered at the spot and the police also came. He clarified that the boy was standing on the road when the vehicle crushed his leg and the accident occurred due to the rash and negligent driving of the driver of the truck. 14. I find this witness to be trustworthy and his version to be true. Even though an attempt has been made to show that he appears to be a planted and a stock witness but I am afraid that from his testimony nothing has come out which would even raise a doubt that he had falsely deposed in favour of the petitioner. It is not the insurer’s case that he is an interested witness or relative of the claimant. 15. Except for a bald suggestion which has been put to these witnesses, there is nothing on record to prove that the accident occurred due to the negligence of the petitioner or that his foot got entangled in the foot rest due to which his left leg came under the rear tyre of the truck causing injuries. Driver of the truck has not stepped into the witness box to prove the said fact. 16. Driver of the truck has not stepped into the witness box to prove the said fact. 16. That apart, the Apex Court in National Insurance Co. Ltd. vs. Swaran Singh & Others (2004) 3 SCC 297 (para 110), has held that the burden to prove that the terms and conditions of the insurance policy stood breached is heavy on the insurer. In the present case, the insurer has not led any evidence whatsoever to even prima facie discharge the said burden. 17. The Apex Court in Narcinva V. Kamat & Anr. vs. Alfredo Antonio Doe Martins & Ors. 1985 (2) SCC 574 has held as under:- “Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, an adverse inference be drawn against him that he did not have a valid licence to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to riggle out of its liability under the contract of insurance. Further the R.T.A. which issues the driving licence keeps a record of the licenses issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company.” 18. The Court below, in my considered view, has correctly appreciated the evidence in its entirety while arriving at its conclusion. At the time of the accident, the petitioner was neither sitting nor travelling in the vehicle in question. He had fully alighted the vehicle and was on the road. Negligence on the part of the driver stands proved on record. He suddenly drove the vehicle due to which the petitioner’s left leg came under the rear tyre of the vehicle. Petitioner thus cannot be termed to be a gratuitous passenger but a third party and thus entitled to compensation from the insurer. 19. Negligence on the part of the driver stands proved on record. He suddenly drove the vehicle due to which the petitioner’s left leg came under the rear tyre of the vehicle. Petitioner thus cannot be termed to be a gratuitous passenger but a third party and thus entitled to compensation from the insurer. 19. An effort has been made to show that had the petitioner fully alighted the vehicle, he would have been at least at a distance of one feet from the vehicle and, therefore, there was no probability of the occurrence of the accident. I am afraid these are all hypothetical situations and in the absence of any evidence with regard to the same, the same does not merit consideration. The material on record in fact suggests to the contrary. 20. The ratio of law laid down by the Apex Court in National Insurance Co. Ltd. v. Cholleti Bharatamma & Ors. (2008) 1 SCC 423 and Noorjahan v. Sultan Rajia alias Thaju & Ors. 1997 ACJ (1) 1, does not apply to the facts of the present case as the petitioner had fully alighted the vehicle and was on the road at the time when the accident occurred. As such, he was not a gratuitous passenger. 21. The Tribunal has considered the entire material. The conclusions borne out from the record are neither perverse nor contrary to the record. For the aforesaid reasons, the present appeal is dismissed.