MAHESHWARI, J. - (1.) THE insurer of truck bearing registration number DEL-130 has preferred this appeal under Section 173 of the Motor Vehicles Act against the award dated 29. 6. 1996 made by the Motor Accident Claims Tribunal, Dungarpur (`the Tribunal') in Claim Case No. 5/1992 in so far the Tribunal has refused to exonerate the insurer from its liability for compensation arising out of an accident of the said truck on the ground that the victim was a gratuitous passenger in the vehicle and the insurer has not covered any such risk.
(2.) BRIEF facts relevant for determination of the questions involved in this appeal are that the respondents No. 1, 2 & 3 Smt. Rodi, Smt. Roopa and Bhera filed a claim application on 6. 12. 1991 before the Tribunal against Dilip Chand @ Pappuram Bhatia and Bharat Bhushan S/o Dilip Chand Bhatia, both residents of L-117/6, Laxmanpur, Pahadganj, New Delhi in the capacity of respectively the driver and owner of the vehicle and the appellant New India Insurance Company as the insurer. it was averred that he claimants were respectively the wife, mother and father of deceased Kaluram Rawat Meena aged about 27 years and that the non-applicant No. 2, Bharat Bhushan was the employer of the deceased and it was alleged that the deceased was working on his vehicle DEL 130 as a labourer. Facts regarding the accident were stated in the manner that the accident occurred on 13. 6. 1991 at 5. 30 p. m. at Pulia No. 357/3 near Bhuvali on National Highway No. 8 going from Udaipur to Ahmedabad when the non-applicant No. 1 driving the Truck DEL 130 rashly and negligently hit and damaged the bridge and the vehicle fell about 125 fts. down below. It was stated that Kaluram sustained several grievous injuries and died on the spot. FIR No. 153/1991 was registered in Police Station, Bichchhiwara, District Dungarpur and a challan was filed after investigation. In the particulars, as to whether the deceased was travelling in the vehicle involved in the accident, it was stated that on the date of accident i. e. , 13. 6. 1991 the deceased Kaluram and so also Ganesh, Bhagaram and Nathuram were working as labourers on the truck in question and were going to Delhi with the truck for unloading the goods. The vehicle was shown to be insured with the appellant New India Assurance Co. Ltd. at its branch No. 310801 at Asaf Ali road, New Delhi under Cover Note No. 228542 valid from 16. 5. 1991 to 15. 5. 1992. Compensation to the tune of Rs. 6,05,000/- was claimed on different heads. Liability for compensation was stated in the manner that non-applicant No. 1 was the driver, non- applicant No. 2, the owner and non-applicant No. 3, the insurer of the vehicle and, therefore, all the three non-applicants were liable for compensation. In the claim application, the insurer non-applicant No. 3 put in appearance and filed reply on 18. 3. 1993 and an order under Section 140 of the Act for interim compensation was also passed on 17. 7. 1993. However, the non-applicants No. 1 and 2, the alleged driver and the owner of the vehicle were not served despite repeated efforts and ultimately presumption of their service was drawn on 17. 11. 1995 when the notices sent by registered post acknowledgment due were not returned back serviced or unserved. The insurer appellant in its reply denied all the claim averments including the averment that the deceased Kaluram was working as a labourer on the Truck DEL 130 and it was arrested that the deceased and other persons named in the claim application were travelling as passengers in the truck. It was submitted that the vehicle in question was a goods vehicle and no passenger could be allowed to travel in the same; the persons named in the application were travelling as passengers, therefore, there was no liability of the insurer. It was also pointed out that the truck owner lodged a claim of own damage relating to the truck, and an investigation was got conducted by the insurer in which it was found that the vehicle was being driven by one Pappu, who flee away from the scene after the accident as he was not having valid driving licence and the name of Dilip Chand Bhatia was falsely suggested as driver of the vehicle. It was asserted that Dilip Chand Bhatia was not driving the vehicle nor he was known by alias of Munnaram or Pappu as alleged. After framing of the issues necessary for determination of the questions involved in the case, the Tribunal proceeded to take evidence led by the parties and apart from production of documentary evidence, the claimants examined Smt. Rodi wife of the deceased as PW. 1 and Ganesh S/o Malji as PW. 2; whereas on 29. 6. 1996, the insurer examined one witness Mahendra Kumar Talesara as DW. 1. On this very day of 29. 6. 1996, learned Judge of the Tribunal heard the parties finally and passed the impugned award.
(3.) THE comprehensive question in issue No. 1 about the incident and its cause and resultant injuries and death of Kaluram was decided in favour of the claimants with reference to the statement of PW. 2 Ganesh, who was also travelling in the same truck and so also the documentary evidence. In issue No. 2, it was found that the vehicle was of the ownership of the non-applicant No. 2 and it was being driven by the non-applicant No. 1 in the employment of the owner. In issue No. 3, the question was about the liability of the insurer and learned Judge of the Tribunal dealt with the contention raised by the insurer that the deceased was not a labourer on the vehicle but was travelling as a passenger. The learned Judge referred to the investigation report obtained by the insurer Exhibit A/2 and observed that the report Exhibit A/2 was not even worth the paper on which it was printed; the investigator had not been produced and the witness of the insurer was not knowing anything about Exhibit A/2. the learned Judge observed that according to the PW. 2 Ganesh, the truck driver had taken the labourers for the purpose of unloading the goods and if labourers were taken on the truck for emergent work, they could not be treated to be the passengers and, therefore, issue No. 3 was decided against the insurer. The consideration adopted by the learned Judge on this question read as under:- *** Taking up the quantification of compensation, learned Judge found the claimants entitled for a compensation of Rs. 1,09,500/- and made an award for this amount along with interest at the rate of 12% per annum on payment within 60 days, else at the rate of 15% per annum. ;