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2015 DIGILAW 1100 (HP)

National Insurance Company Ltd. v. Khimi Devi

2015-08-14

MANSOOR AHMAD MIR

body2015
Judgment Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 31st July, 2008, made by the Motor Accident Claims Tribunal, Fast Track Court, Mandi, H.P. (for short, “the Tribunal”) in Claim Petition No.13/2001, 18/2005, tilted Smt. Khimi Devi & others vs. Megh Raj & others, whereby compensation to the tune of Rs.8,66,800/-, alongwith interest at the rate of 7.5% per annum, came to be awarded in favour of the claimants and the insurer (appellant herein) was saddled with the liability, (for short the “impugned award”). 2. The claimants, the owner/insured and the driver have not questioned the impugned award on any count, thus the same has attained finality so far as it relates to them. 3. Only the insurer-appellant has questioned the impugned award on the ground that the Tribunal has fallen in error in saddling it with the liability inasmuch as the deceased was traveling in the offending vehicle as gratuitous passenger, thus the owner/insured has committed willful breach. 4. Thus, the only question needs to be determined in the instant appeal is – Whether the Tribunal has rightly held that the deceased was not traveling in the offending vehicle as gratuitous passenger, but was traveling as owner of the goods? 5. I have gone through the record and the impugned award. The Claimants, in paragraph 24 of the Claim Petition, have specifically pleaded that the deceased was traveling in the offending vehicle as owner of the goods and had hired the same, which fact has also been admitted by the owner of the offending vehicle in the reply filed to the Claim Petition. It is also apt to record herein that Megh Raj, owner of the offending vehicle, has appeared in the witness box as RW-2 and admitted the said factum. 6. The Tribunal has rightly discussed the evidence in paragraph 16 of the impugned award and I deem it proper to reproduce the same hereunder: “16. It is also apt to record herein that Megh Raj, owner of the offending vehicle, has appeared in the witness box as RW-2 and admitted the said factum. 6. The Tribunal has rightly discussed the evidence in paragraph 16 of the impugned award and I deem it proper to reproduce the same hereunder: “16. Sh.Megh Raj owner of the truck while appearing as RW-2 in the witness box and Dharminder driver of the truck respondent No.2 while appearing as RW-3 have admitted that the truck bearing Registration No.HP-33-0372 was hired by the deceased Rattan Chand for taking vegetables to Nerchowk and it was settled that the deceased Rattan Chand will pay Rs.100/- as fare charges of the vegetables and the deceased Rattan Chand has also boarded the truck in question for looking and care of the vegetables.” 7. It was for the insurer to plead and prove that the owner has committed the willful breach, in which it has failed. The insurer has miserably failed to prove that the deceased had not hired the offending vehicle for transporting the vegetables, and thus, was a gratuitous passenger. 8. Having said so, no interference is required in the impugned award and the same is upheld. Consequently, the appeal, being without merit, is dismissed. The Registry is directed to release the amount in favour of the claimants strictly in terms of the impugned award.