2025:HHC:21511 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 128 of 2013 Reserved on: 28.6.2025 Date of decision: 7. 7 .202 5 Hans Raj. ….Appellant. Versus Sita Devi & other. ….Respondents. Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes. For the Appellant : Ms.Veena Sharma, Advocate. For the Respondents: None for respondents No. 1 to 4, though represented by Mr.Kunal Verma, Advocate. Mr.J.S. Bagga, Advocate, for respondent No. 5. Vivek Singh Thakur, Judge This appeal has been preferred by the owner-cum-driver, under Section 173 of the Motor Vehicles Act, 1988 (for short MV Act) against the award dated 29.9.2012 passed by MACT Kinnaur Sessions Division at Rampur, H.P. in MAC Petition No. 108 of 2009, titled as Sita Devi and others Vs. Hans Raj and others, whereby after determining the quantum of compensation by MACT, by rendering findings that deceased 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2025:HHC:21511 FAO No. 128 of 2013 was traveling in the vehicle as gratuitous passenger, liability to pay compensation has been fastened upon owner-cum-driver/appellant. 2. In present case, it has come on record that on 25.3.2009, deceased Rajinder Kami and Karan Dass alongwith their luggage and house-hold articles were going from Bilaspur to Rekong Peo, District Kinnaur in a vehicle Pick Up Jeep HP-24A-0717 arranged by Contractor Mahinder Thakur for transporting these two persons alongwith their goods. The vehicle was hit by a Truck near Nogli in Tehsil Rampur, District Shimla causing injuries to deceased Rajinder Kami, who was shifted to MGMSC Khaneri, wherefrom he was referred to IGMC, Shimla, where he was declared dead on 29.3.2009 and his postmortem (Ex. 1/F) was conducted on 30.3.2009. Immediately after the accident, during intervening night of 25-26.3.2009 at 1.30 A.M., report was lodged by appellant Hans Raj in Police Station Rampur with respect to occurrence of accident and on the basis of which, FIR No. 70 dated 26.3.2009 was registered in Police Station Rampur Bushahr. 3. Respondents/claimants No.1 to 4 filed Petition under Section 163-A of MV Act, 1998 against appellant Hans Raj and Insurance Company for compensation on account of death of Rajinder Kami with claim that deceased was earning 3,000/- per month and thus claimants ₹ were entitled for compensation amounting to 4,08,500/-. ₹ 2 2025:HHC:21511 FAO No. 128 of 2013 4. After completion of pleadings MACT had framed following issues:- “1. Whether late Sh. Rajinder Kami had expired on account of injuries sustained by him on account of use of vehicle No. HP- 24A-0717, being driven by respondent No. 1, alleged? OPP 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the deceased was traveling in the offending vehicle as gratuitous passenger, if so to what effect? OPR-2 4. Whether respondent No. 1 was not having a valid and effective driving licence, at the relevant time? OPR-1 5. Whether the offending vehicle was being plied in violation of terms and conditions of insurance policy as alleged? OPR-2 6. Whether this petition is not maintainable against respondent No. 1, as alleged? OPR-1 7. Relief.” 5. The Claim Petition was allowed by deciding issues No. 1 and 2 in favour of claimants and issues No. 3, 4 and 6 against the appellant-owner-cum driver and issue No. 5 against the Insurance Company. 6. For returning findings that deceased was traveling in the offending vehicle as gratuitous passenger, it has been held by the MACT that Insurance Company is not liable to indemnify the owner-cum-driver by paying the awarded compensation to the claimants, but the amount of 3 2025:HHC:21511 FAO No. 128 of 2013 compensation has to be paid/deposited by the owner of the vehicle after adjusting the amount if any paid under Section 140 of the MV. Act. 7. Present appeal has been preferred by owner against the findings returned by the MACT in issue No. 3, whereby it has been held that deceased was traveling in the vehicle as gratuitous passenger. 8. Awarded amount of compensation of 5,94,000/- alongwith ₹ interest at the rate of 8.5% per annum has not been assailed or disputed by any party including the owner, who has preferred present appeal. 9. The only question to be determined in present appeal is with respect to findings returned by the MACT that deceased was traveling as a gratuitous passenger in the offending vehicle is correct or is based on misreading, misconstruction or misinterperation of evidence on record. 10. Claimants have examined two witnesses. PW-1 is Sita Devi Kami @ Asha W/o deceased Rajinder Kami and PW-2 is Amar Kumar, brother-in-law of deceased Rajinder Kami. Whereas Insurance Company has examined RW-1 N.K. Hazri, Assistant Manager of Oriental Insurance Company, Shimla and appellant/owner has appeared as RW-2. 11. PW-1 Sita Devi Kami, though in her examination-in-chief filed on affidavit as Ex. PW-1/A has stated that her husband Rajinder Kami alongwith another Nepali was traveling in vehicle alongwith his goods/luggage and vehicle was being driven by owner Hans Raj and at that time in the accident caused by another Truck, her husband Rajinder 4 2025:HHC:21511 FAO No. 128 of 2013 Kami was injured, who succumbed to his injuries on 29.3.2009 at Shimla. She has also deposed with respect to monthly income and other facts related to the accident, but for the purpose of adjudication of the issue involved in the appeal, her deposition only with respect to the fact that her husband and one other Nepali were traveling in the vehicle alongwith their goods, is relevant because other findings returned by MACT with respect to other issues have not been assailed by any one. She has also proved on record copy of FIR Ex. PW-1/E. 12. It is also a fact that PW-1 Sita Devi Kami was not traveling in the vehicle at the relevant point of time, thus her deposition in this regard is a hearsay evidence which necessarily requires corroboration. 13. PW-2 Amar Kumar has deposed only with respect to the income earned by the deceased and details of legal heirs and the fact about his death in road accident. Therefore, his statement is not relevant for adjudication of issue involved in present appeal. 14. RW-2 Hans Raj in his examination-in-chief has deposed in affidavit Ex. RW-2/A, wherein he has stated that on 25.3.2009, he was transporting labour of Contractor Mahinder Thakur alongwith their goods and luggage from Bilaspur to Rekong Peo, as Mahinder Thakur had told him that he had been allotted some work at Kinnaur and, therefore, labour and their luggage was to be transported to Rekong Peo and in furtherance thereto he was transporting double bed, one TV, bedding, 5 2025:HHC:21511 FAO No. 128 of 2013 kitchen/household and other goods of Rajinder Kami and Karan Dass, who were also traveling in his vehicle. He has also proved on record copy of Registration Certificate of Vehicle (RC) Ex. RW-2/B. 15. In his cross-examination on behalf of claimant, Hans Raj has admitted that Rajinder Kami and Karan Dass labour of Mahinder Thakur were traveling in his vehicle alongwith their goods. In cross- examination on behalf of Insurance Company, he has denied the suggestion put to him that no goods were being transported in his vehicle at the relevant point of time and large number of persons were traveling in his vehicle as passengers and Mahinder Singh had not booked his vehicle for transporting his labour and their goods and he had lodged false report to save himself. 16. FIR Ex. PW-1/E was lodged immediately after the accident at midnight, by Hans Raj, wherein he has categorically stated that he was transporting labour of contractor alongwith their goods and at about 10:30 P.M. his vehicle was hit by a truck, causing head injuries to Rajinder Kami and at that time Rajinder Kami and Karan Dass were sitting in his vehicle and Rajinder Kami was taken for treatment to MGMSC, Khaneri (Rampur). 17. There is no delay in lodging the FIR and there is least possibility of consultation or afterthought to introduce a story to save himself by Hans Raj, owner of the vehicle. In this FIR, it has been 6 2025:HHC:21511 FAO No. 128 of 2013 categorically stated that two persons Rajinder Kami and Karan Dass were sitting in the vehicle alongwith their goods, which were being transported from Bilaspur to Rekong Peo. 18. Registration Certificate of the vehicle has been produced on record as Ex. RW-2/B, wherein seating capacity, including driver, has been reflected as 1+2. Though there is suggestion to Hans Raj by the Insurance Company that large number of persons were traveling in the vehicle at relevant point of time as passengers, but there is no material on record to substantiate the same nor such plea was taken in the reply filed on behalf of respondent No. 2-Insurance Company. As per FIR and also from deposition of witnesses, it has come on record that in the vehicle, including driver, only three persons were traveling which is in consonance with the authorized seating capacity of the vehicle. 19. RW-1 N.K. Hazri, Assistant Manager of Insurance Company has deposed in his examination-in-chief that on 25.3.2009 deceased was traveling as a gratuitous passenger in a goods carrying vehicle and thus his liability is not covered under Insurance Policy. 20. MACT has taken into consideration deposition of RW-1 narrated in examination-in-chief, as referred in para 13 of the impugned award, to arrive at conclusion that at the time of accident deceased was traveling in the goods carrying vehicle as gratuitous passenger. It has been also referred by MACT that in cross-examination this witness has 7 2025:HHC:21511 FAO No. 128 of 2013 denied that at the time of accident deceased was traveling in the vehicle alongwith his personal belongings such as double bed etc. 21. Here there is complete misreading and misinterpretation of deposition of RW-1 by the MACT, as in cross-examination by Mr.Hans Raj, Advocate for claimants, RW-1 has stated that he had conducted the inquiry in this matter and in his inquiry it had surfaced that deceased was traveling alongwith his luggage/goods in the vehicle and in cross- examination by the Advocate for the owner, this witness has admitted that in the inquiry it also came in the knowledge that some unknown vehicle had hit the Pickup, causing the accident and there was no fault on the part of owner-cum-driver of the Pickup. Though, he has denied that at the time of accident deceased was traveling alongwith his goods including two beds, kitchen/household articles, beds etc, but it remains a fact that he, in his cross-examination on behalf of claimants, has admitted that in his inquiry it had come that the deceased was traveling in the vehicle alongwith his goods. Therefore, there is complete misreading of evidence on record by MACT for returning the findings with respect to issue No. 3 against the owner-cum-driver and thus it warrants interference. 22. Learned counsel for the Insurance Company has relied upon judgment dated 30.4.2025 passed by Co-Ordinate Bench of this Court in FAO No. 448 of 2018, titled as The Oriental Insurance 8 2025:HHC:21511 FAO No. 128 of 2013 Company Ltd. Vs. Sheru @ Sher Singh @ Sukhraj and others, wherein relying upon judgments in New India Insurance Company Ltd. Vs. Asha Rani, 2003 ACJ (1); National Insurance Company Vs. Baljeet Kaur, 2004 ACJ 428, it has been re-iterated that insurer is not liable to indemnify the insured in respect to claim arising out of death or bodily injuries to a gratuitous passenger in goods carrying vehicle. 23. There is no dispute with respect to aforesaid ratio of settled law. However, it is of no help for the Insurance Company as in present case there is ample evidence on record to conclude that deceased was not gratuitous passenger, but was traveling in the vehicle alongwith goods as a owner of goods and, therefore, in terms of provisions of Section 147 of the MV Act insurer is liable to indemnify insured for death of deceased being owner of goods being transported in the Motor Vehicle. 24. There is more than sufficient evidence on record in favour of appellant to satisfy the Principle of Preponderance of Probability that deceased Rajinder Kami was traveling in the vehicle alongwith his goods. Plea of the counsel for the Insurance Company is that vehicle was engaged by contractor Mahinder Thakur, whereas he was not traveling in the vehicle, but his labour Rajinder Kami and Karan Dass were traveling in the vehicle, is also of no help to the Insurance Company, because it does not make any difference that who has engaged or arranged the 9 2025:HHC:21511 FAO No. 128 of 2013 vehicle. The relevant fact required to be considered for adjudication of the matter is that as to whether there is evidence on record that deceased Rajinder Kami and Karan Dass were traveling in the Pick Up alongwith their goods or not. This fact, in my considered opinion stands proved on record and the findings returned by the MACT ignoring the part of deposition of RW-2 that during his inquiry it was found that deceased was traveling in vehicle alongwith his goods but picking up selective portion thereof where he has denied the fact that at the time of accident deceased was traveling in the vehicle alongwith his personal goods, are perverse being contrary to record. Denial of this witness with respect to details of goods, put to him in cross-examination conducted on behalf of owner, cannot be taken as a ground to discard his admission made during cross-examination on behalf of claimants. His entire statement is to be read to draw any inference. 25. From the corroborative evidence on record i.e. contents of FIR, statements of RW-1 N.K. Hazri, RW-2 Hans Raj, deposition of PW-1 Sita Devi is fortified with respect to the fact that deceased was traveling in the vehicle alongwith his goods. 26. It is also apt to notice that even if Rajinder Kami and Karan Dass would have been traveling in the vehicle alongwith goods of Mahinder Thakur Contractor on the relevant date, then also being authorized persons by the owner of goods to travel with his goods, they 10 2025:HHC:21511 FAO No. 128 of 2013 would have been treated as agents of the owner of goods and in that eventuality also they were to be equated with owner of goods traveling in the Pick Up in reference. 27. It is also provided under Section 147 of the MV Act that traveling of owner of goods or his representative in the vehicle wherein goods are being transported, is permissible under law and Insurance Company, in such a situation is duty bound to indemnify the owner for award of compensation to the claimants/victims on account of death or injury caused in Motor accident. 28. In view of aforesaid discussion, I am of the considered opinion that MACT has committed illegality, material irregularity by misreading, misconstruing and misinterpreting the evidence on record, which has resulted into perversity as reasons assigned for concluding that deceased was traveling as gratuitous passenger is contrary to the material on record. 29. No other point has been urged or raised. 30. In view of above, impugned award passed by MACT is modified to the extent that respondent-Insurance Company is liable to indemnify the owner Hans Raj by making payment of amount of compensation to the claimants and accordingly Insurance Company is directed to pay/deposit the amount of compensation to the claimants either paying directly or depositing the same in the Registry of this Court 11 2025:HHC:21511 FAO No. 128 of 2013 on or before 31st August, 2025. Rest award has not been modified and it shall remain as it is. The appeal is allowed in aforesaid terms and disposed of, alongwith pending applications, if any. (Vivek Singh Thakur), 7th July, 2025 Judge. (Keshav) 12