SHANTI DEVI Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) DEEPAK Gupta, J. Both the aforesaid appeals are being disposed of by a common judgment as they arise out of the same accident and award. The admitted facts of the case are that deceased Anup Kumar, aged about 23 years died in motor vehicle accident of truck No. HP 14-4275. Claimants, who are the parents of the deceased, filed a claim petition under section 163-A of Motor Vehicles Act (for short 'the Act' ). In this petition it was stated that deceased was working as a driver with Friendly coach Bus Service, Subathu at a salary of rs. 4,500 per month, i. e. , Rs. 54,000 per annum. According to the averments made in the petition, the petitioner left his home at village Borti at about 6. 45 a. m. to go to kasauli to get his name registered in the employment Exchange. He boarded the diggal-Solan bus and got down at Darwa. There he met Mohan Lal, driver of truck no. HP 14-4275. Both, Anup Kumar and mohan Lal, were friends. Thereafter Anup kumar travelled in the truck of Mohan Lal. The truck went off the road near Ganguri and the deceased sustained injuries. He was taken to Civil Hospital, Dharampur. Thereafter, he was referred to the P. G. I. , chandigarh, but he expired.

(2.) IT is apparent from the averments made in the claim petition that as per the claimants, the deceased was a gratuitous passenger in the truck. Respondent insurance company filed a written statement on 11. 12. 2002 in which it was alleged that since the deceased was a gratuitous passenger in a goods vehicle, the insurance company was not liable.

(3.) THEREAFTER the owner filed her written statement in which it was alleged that the regular driver was to go on leave w. e. f. 27. 8. 2001 after unloading the truck at c. R. I. , Kasauli and, therefore, driver of the truck, who knew the deceased had asked him to work as a driver on the truck as stop-gap arrangement. It was alleged that the deceased was co-driver in the truck and hence the insurance company was liable. Though the petition was purported to have been filed under section 163-A of the Act, issues were framed. Neither the learned tribunal nor any of the counsel treated this petition to be one under section 163-A of the Act. In fact this petition under section 163-A of the Act was not maintainable in view of the fact that the income of the deceased has been stated to be more than rs. 40,000 per annum. The Apex Court in deepal Girishbhai Soni v. United India insurance Co. Ltd. , 2004 ACJ 934 (SC), has clearly laid down that where the income of the deceased victim is more than rs. 40,000 per annum, the claimants are not entitled to file a petition under section 163-A of the Motor Vehicles Act, 1988. The Supreme Court made the following observations in paras 51 and 67 of the judgment: