JUDGMENT Dev Darshan Sud,J. These two appeals are being disposed of by this judgment as they arise out of the same accident and involve a common question of fact and law. 2.I have enumerated the facts before adverting to and adjudicating on the submissions made by the learned counsel appearing for the parties. 3. On 10.8.2005 Smt.Sangeeta alongwith her minor son Devinder boarded truck No.HP-07-3474 which was being driven by deceased Diwan Chand, who was undisputedly the husband of the deceased and father of the minor Devinder. The truck fell into river Satluj, all the occupants including the driver drowned; the bodies were washed away and could not be recovered. They were in all five people in the truck including the driver. 4.In these two appeals, it is the compensation which has been granted to Annu Kumari who is a minor which is being considered as nothing was granted in favour of Devi Dass and Kaushyala Devi who were the grant parents of Devinder and the father-in-law and mother-in-law of deceased Sangeeta. 5.The case made out by the claimants in the petition instituted before the learned Tribunal was that on the fateful day, the deceased had boarded the ill-fated truck at Chhagog and were travelling to Nagan. Because of the rash and negligent driving of Diwan Chand, husband of the deceased Sangeeta, the truck fell into the river Satluj at about 4.20 P.M. as a result, all the persons on board drowned and their bodies could not be recovered. The case pleaded is that the principle of res ipsa loquitor is squarely attracted to the facts of the present case. The deceased was hale and hearty and was looking after her family; working in the fields and managing an orchard etc. The claimants were wholly dependant on the earning of the deceased.It was an established fact that there was longevity in the family of the deceased. The deceased, according to the claimants, was earning Rs.5000/- per month by working in the fields etc. In addition to this, she was earning Rs.one lac by selling apple crop. The claimants were wholly dependant on the earning of the deceased.It was an established fact that there was longevity in the family of the deceased. The deceased, according to the claimants, was earning Rs.5000/- per month by working in the fields etc. In addition to this, she was earning Rs.one lac by selling apple crop. 6.The petitions have been resisted by the respondent who simply denies all the averments made and then submits that the liability, if any, is that of the Insurance Company.The Insurance Company has taken a number of preliminary objections including the fact that the truck was being driven in violation of the terms and conditions of the policy.I have noticed these facts in order to appreciate the submissions put forth by the learned counsel appearing for the parties. 7.In this appeal, the point urged by the appellant-Insurance Company is only that the deceased Sangeeta was not travelling in vehicle with the goods which fact is not disclosed either in the pleadings or in the evidence on record. She was neither the owner of the goods nor travelling in such capacity. It is urged that the fact that the vehicle was never hired to carry anygoods, no goodswere being carried/transported in the vehicle that she was the wife of the driver it was a mere certainty that she was travelling as a gratuitous passenger. 8.Learned counsel appearing for the owner as also for the claimants submit that the evidence on record clearly shows that she had hired the truck as owner of the goods and in that event it is the Insurance Company which is liable. For this purpose, learned counsel has placed reliance on the oral and documentary evidence on the record.I also note at this stage that the Insurance Company has not led any evidence save and except cross-examining the witnesses of the claimants and tendering the insurance policy in evidence.The first witness relied upon by the learned counsel is PW-1 Shri Jia Lal Head Constable, who proves on record the First Information Report with respect to the accident.I need not consider his evidence as the factum of the accident in the manner as adjudicated is not disputed. 9.PW-2 Devi Dass states that his daughter-in- law Sangeeta and grandson Devinder were travelling in the truck which had been hired for transportation of apples.The tariff settled for carrying apple boxes was Rs.25/- per box.In cross-examination he admits that he does not know the correct particulars about the place from where she had boarded the truck and the place where she was going. He then says that the truck had been hired for the purposes of transporting the apples and as such, his daughter-in-law and grandson were entitled to travel as owners of the goods. 10.PW-5 Shri Rattan Chand is the father of the deceased Sangeeta who says that he has no son, but has only five daughters. All of them are married.He states that since he had no son, he was giving the income from his land to his daughters according to their financial need. He then says that in the year 2005-2006 he had given the entire apple crop to his daughter Sangeeta so that she could appropriate the sale proceeds for herself. He then says that at the time of accident his daughter had hired the ill-fated truck for transporting this crop from Nagan to Delhi. In cross-examination he states that Sangeeta was not financially well off and in these circumstances he had permitted her to take the entire apple produce for that year. He then says that for the year 2005-2006 the crop was given to his elder daughter Chanderkala and again that in July, 2005 the deceased was permitted to carry these apple produce. He says that he owns 450-500 bighas of land (? sic) in which 150 fruit bearing apple plants have been planted from which 200-250 apple cases can be harvested every year. This is the entirety of the evidence. He also places on record the Jamabandi showing that he is the owner of this orchard. 11. Adverting tothe firstpoint for consideration, the question to be determined is as to whether it has been proved on the record that the truck infact was hired for transporting the apple crop and whether the deceased are entitled to the compensation, as pleaded. Adverting to the evidence on record, I find it difficult to accept the submissions made on behalf of the respondents that the deceased was infact the owner of the goods. Adverting to the evidence on record, I find it difficult to accept the submissions made on behalf of the respondents that the deceased was infact the owner of the goods. Even if, a very liberal interpretation is taken, the evidence of the claimants only reflects that the father of the deceased had infact allowed her to appropriate the crop of that particular year. But, where that crop was kept, where it had been packed in boxes, where it had been loaded, has not been proved on record. In these circumstances, it is not possible to accept the contention that under Section 147 of the Motor Vehicles Act (hereinafter referred to as the ‘Act’ ), the liability of the accident is to be fastened on the Insurance Company. Learned counsel has placed reliance on a number of decisions in support of their respective contentions. 12. Shri DeepakBhasin,learnedcounsel appearing for the Insurance Company, submits that the law on the question of liability of the Insurance Company in the case of gratuitous passenger is squarely covered by the decision of this Court in Oriental Insurance Company vs. Neelam Kumari and others, 2011(2) Shim.LC 335. Learned counsel submits that this Court after considering the entire case law held:- “13. In the present case on the basis of the evidence on record it is apparent that the deceased were not travelling as owners of the goods but were merely gratuitous passengers. Not a word has been stated by any witness that the deceased had hired the vehicle. It is thus obvious that they were only gratuitous passengers and even assuming that they had also taken some goods they could not be said to be travelling as owners of the goods. To be covered under the terms of the Act some evidence must be led to show that the deceased had hired the goods vehicle for transportation of their goods. “(p-339) 13.Having reached that conclusion, this Court ultimately directed that the Insurance Company could not be called upon to satisfy the award. To similar effect is the decision of this Court in National Insurance Company vs. Maghi Ram and others, 2009(1) Shim.LC 454. Learned counsel then submits that the law has been clearly enunciated by the Supreme Court in National Insurance Co.Ltd vs. Kaushalya Devi & Ors., AIR 2008 SC 2252, where the Court held:- “11. In National Insurance Co. To similar effect is the decision of this Court in National Insurance Company vs. Maghi Ram and others, 2009(1) Shim.LC 454. Learned counsel then submits that the law has been clearly enunciated by the Supreme Court in National Insurance Co.Ltd vs. Kaushalya Devi & Ors., AIR 2008 SC 2252, where the Court held:- “11. In National Insurance Co. Ltd. v. Laxmi referring to Swaran Singh (supra) and discussing the law on the subject, held: “In view of the above analysis the following situations emerge: 1.The decision in Swaran Singh’ s case (supra) has no application to cases other than third party risks. 2.Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3.In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.4.The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.The High Courts/Commissions shall now consider the mater afresh in the light of the position in law as delineated above.{See also OrientalInsurance Company Ltd. v. Meena Variyal & Ors.[2007 (5) SCALE 269]; Oriental Insurance Company Ltd. v. Brij Mohan & Ors. [2007 (7) SCALE 753]; and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727]}.12.In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The High Court’s judgment must be sustained on this ground.13.The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been traveling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was not traveling in the truck as owner of the goods viz. the vegetables. He was traveling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan (supra) wherein the Bench cited with approval the decision in New India Assurance Co. Ltd. v. Asha Rani & Ors . [(2003) 2 SCC 223] wherein it was stated : “26. This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan (supra) wherein the Bench cited with approval the decision in New India Assurance Co. Ltd. v. Asha Rani & Ors . [(2003) 2 SCC 223] wherein it was stated : “26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used i.e. “a third party”. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.”(See also Prem Kumar & Ors. v. Prahlad Dev & Ors. [2008 (1) SCALE 531] and Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727]).”(pp.2254-2255) 14.ShriSatyenVaidya,learnedcounsel appearing for the owner, submits that it is not necessary that at that particular point of time when the accident took place it is mandatory that the goods were actually being carried in the vehicle. All that is required to be established on the record is that the vehicle had infact been hired for transportation of the goods of the owner who is travelling in it. He submits that this principle is established by the judgment of the Division Bench of the Kerala High Court in United India Insurance Co.Ltd. vs. Suresh, 2007 ACJ 262, holding:- “12. According to appellant the goods must be available in the vehicle because it provides the nexus between the passenger and the goods and makes the passenger eligible to claim compensation from the insurer. But according to respondent No.1 goods need not invariably find a place in the goods carriage at the time when the accident occurs and that it would suffice if the passenger establishes that he was travelling as the owner of goods to be loaded into the vehicle and transported to the destination where unloading would take place. There cannot be any doubt that the owner of the goods or his authorized representative must be passengers of the goods carriage when the vehicle meets with an accident resulting in death or bodily injury to that passenger. There cannot be any doubt that the owner of the goods or his authorized representative must be passengers of the goods carriage when the vehicle meets with an accident resulting in death or bodily injury to that passenger. Hence, the word `carried’ indubitably qualifies the passenger who may either be the owner of the goods or his representative. The word `carried’ is in juxtaposition with the words `or his authorized representative’. According to the learned counsel for the appellant if the above words are ignored, the word ‘carried’ will qualify the word ‘goods’. According to us, the language of the amended provision does not show that the owner or the representative must accompany the goods in order to come within the purview of that clause. It is rather common that the owner of the goods or his representative who hires the vehicle travels in the hired vehicle from the place of hiring to the place where the goods are to be loaded into the vehicle and then proceeds to travel along with the goods. It is also common that after unloading the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word ‘carried’ qualifies the owner of goods or his representative and not the goods carried. If goods are found inside the vehicle at the time of the accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of goods or the owner’s representative was travelling in that capacity. Chances of passengers or the insured raising false claims in this regard cannot be safe method to ascertain the intention of the legislature. False claim can be disproved by the insurer by adducing materials and evidence and alsoby raising appropriate contentions. In our view, such issues are matters of evidence and will not stand scrutiny while construing a beneficial provision intended to compensate the loss caused to innocent victims of the motor accidents. The party who claims that the person who died or suffered injury was the owner of goods or the representative of the owner of the goods shall discharge the burden cast on him. The party who claims that the person who died or suffered injury was the owner of goods or the representative of the owner of the goods shall discharge the burden cast on him. Merely for the reason that the benefit granted will be misused, it will not be proper to give a narrow interpretation to the above provision. We, therefore, hold that the owner or the authorised representative need not invariably be shown to accompany the goods, at the time the goods carriage meets with the accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorized representative of the owner of the goods. (pp.265-266) 15.According to learned counsel, this decision has been affirmed by the Supreme Court in United India Insurance Co.Ltd. vs. Suresh K.K. and another, 2008 ACJ 1741, wherein this very paragraph has been reproduced by the Hon’ble Supreme Court holding:- “10. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision.” (p.1744) In these circumstances,he submits that the proposition of law having been affirmed by the Supreme Court, it is not necessary to establish/prove the fact that the goods were actually being carried in the accidented vehicle. He submits that the subsequent decision of the Kerala High Court in United India Insurance Co.Ltd. vs. Velayudhan, 2011 ACJ 2288 reaffirms this proposition. 16.Adverting to the rival contentions of the parties, I cannot persuade myself to hold that the Supreme Court has not affirmed this decision for the reasons given in United India Insurance Co.Ltd. vs. Suresh K.K. and another, 2008 ACJ 1741 because in subsequent paragraph the Supreme Court proceeds:- “11. But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods? If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act 54 of 1994 was to widen the scope of the liability of the insurance company.”(p.1744) 17.This clearly shows that the Court has and not on the one as urged before the High Court of Kerala. Adverting to the last decision in United India Insurance Co.Ltd. vs. Velayudhan, 2011 ACJ 2288, I cannot express my concurrence with the reasoning of the Hon’ ble Judge on the inferences drawn from Suresh K.K.’s case. Be that as it may, even if I go to the extent of accepting the submissions made by learned counsel appearing for the owner that it is not necessary that at the time of the accident the goods should actually be carried/transported in the vehicle, I do not find from the evidence the existence of the goods or that the truck was hired for transportation of such goods stands established on the evidence on the record. 18.One more submission has been made on behalf of the claimants is that the point with respect to the liability on grounds discussed above has been set up for the first time in appeal in the High Court and cannot be considered without foundation of an issue before the learned Tribunal. Reliance has been placed on the judgment of this Court in New India Insurance Co.Ltd. vs. Meera Devi and Others, 2011 ACJ 2296 and New India Assurance Co.Ltd. vs. Bachhi Bai and others, 2011 ACJ 2475. 19.Learned counsel submits that a clear plea should have been taken before the learned Tribunal. This having not been done, the ap peal cannot be entertained by this Court. Mr.Deepak Bhasin, learned counsel appearing for the Insurance Company, places reliance on the judgment of the Supreme Court in National Insurance Co.Ltd. vs. Rattani & Others, AIR 2009 SC 1499, to urge that the Court holds:- “12.Even if the submission of Mr. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods. Even otherwise in view of the averments made in the claim petition and the first information report the said contention cannot be accepted.Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30 - 40 persons were travelling in the tempo truck. All 30 - 40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift.13.The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbe fore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.14.An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable.(pp.1500-1501) (Emphasis supplied) 20.Adverting to the facts and pleadings of the present case, what I find is that, as observed by me, the pleadings are shoddy, but in any event plea has been set up by the Insurance Company that the accidented truck was being plied in contravention of the conditions of the Insurance Policy. At this stage, now to urge that evidence is to be excluded which is not in consonance with the pleadings cannot be accepted simply for the reasons that both the parties have allowed evidence to be admitted without protest.In any event, it was for the claimants themselves to establish by some evidence that they infact had hired this vehicle for the purposes of transportation of goods. As held by me, no such facts have been established on the record of the case.FAO No.45 of 2009. 21.The facts are absolutely identical and do not call for separate adjudication. 22.Both these appeals are, therefore, allowed. I direct that the amount awarded will be recovered from the owner of the vehicle. Appeals stand disposed of. No order as to costs.