M/S New India Assurance Co.Ltd. vs Smt.Seema & Ors.
2008 Latest Caselaw 2119 Del

*      HIGH COURT OF DELHI : NEW DELHI
                 MAC App. No.114 of 2007

%            Judgment reserved on: 17th November, 2008

             Judgment delivered on: 1st December, 2008


M/s New India Assurance Co.Ltd.
D.R.O.-II, 12/1, Jeevan Raksha Bldg,
Asaf Ali Road, New Delhi.
     ....Appellant

                      Through: Mr.D.K.Sharma, Adv.

                               Versus

1.Smt.Seema
Widow of late Sh.Janved, Alias Raju,

2.Ms.Aarti
D/o late Sh.Janved, Alias Raju (aged about 5 years
minor)

3.Ms.Manju (minor)
D/o Late Sh.Janved (aged about 3 years)

(Minors through their mother and natural guardian
Smt.Seema, Respodent No.1)

All r/o C-147,
Laxmi Park, Gali Bhootonwali,
Nangloi, Delhi-110041.

Permanent address;-
VillageSimrahi,
P.S.Kheda, Tehsil Bahat,
District Agra, U.P.


MAC App.No.114/2007                            Page 1 of 9
 4.Shri Krishan Kumar alias Babloo,
s/o Sh.Tek Ram
R/o village Meham,
Mohalla Dherpana, Ward No.2,
Prajapat, District Rohtak,
Haryana,
And also at Narain Dharam Kanta,
Care of Dahiya House,
Adhyapak Nagar, Nangloi,
Delhi-110041.

5.Shri.Attar Singh,
s/o Sh.Puran Singh

6.Pradeep
s/o Sh.Ram Niwas

7.Ms.Bimla
w/o Shri Ram Mehar,

All R/o Vill. And P.O.Basana,
Tehsil Kalanaur,
Distt.Rohtak, Haryana.
     ...Respondents.

                      Through: Mr.S.N.Parashar, Adv. for R. 1
                               to 3.
                              None for respondents 5, 7 & 8.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                             Yes

2. To be referred to Reporter or not?                          Yes

3. Whether the judgment should be reported
   in the Digest?                                              Yes


MAC App.No.114/2007                              Page 2 of 9
 V.B.Gupta, J.

Present appeal under Section 173 of the Motor

Vehicles Act, 1988 (for short as 'Act') has been filed by

the appellant-Insurance Company against the award

dated 25th November, 2006 passed by Ms.Shail Jain,

Judge, MACT, Delhi (for short as 'Tribunal').

2. The brief facts of this case are that on 14th June,

2004 at about 12 noon, at Red Light West Avenue

Road, Punjabi Bagh, deceased Janved was sitting in

vehicle bearing No.HR-12-F-7074 and was on duty for

loading and unloading the malba from the vehicle and

when vehicle reached on red light, the tractor jumped

the red light and deceased asked respondent No.4 to

drive slowly but the tractor became unbalanced and

deceased fell down on the road from the tractor and

came under the wheels of the tractor and expired on

the spot.

3. The offending tractor is owned by respondents 5

to 7 and insured with the appellant.

4. The respondents contested the claim before the

Tribunal and respondent No.1-driver filed the written

statement stating that the deceased died due to his

negligence and there is no negligence on his part. In

fact deceased fell down on the road, while trying to

board the moving trolley from behind unauthorisedly.

5. The respondents-owner also filed their written

statement in which it is stated that deceased died due

to his negligence and there is no negligence on the

part of the driver of the tractor. In fact deceased fell

down on the road while trying to board the moving

trolley from behind unauthorisedly.

6. Appellant in its written statement took the plea

that respondent-driver did not possess a valid and

effective driving license and he was driving the

offending vehicle without permission or consent of the

owner. It is also stated that policy was issued only for

tractor and premium was charged for driver only.

7. Vide impugned judgment, the Tribunal awarded

compensation for a sum of Rs.4,70,000/- along with 6%

interest, from the date of the filing of petition till

realization in favour of the claimants.

8. It has been contended by learned counsel for

appellant that respondents no. 4 to 7 admitted in their

written statement that deceased was not their

employee and he died due to his own negligence while

trying to board the tractor, while in evidence, they

admit that the deceased was their employee and was

sitting over the tractor/trolley at the time of the

alleged accident.

9. Other contention is that the deceased was only a

gratuitous passenger at the time of the alleged

accident and thus the claimants were not entitled to

any compensation from the appellant. Even assuming

that the deceased was an employee of respondents

no.5 to 7, the appellant is under no liability to pay

compensation because, the policy covered the driver

only.

10. On the other hand, it is contended by learned

counsel for respondents no.1 to3 that there are four

owners of the offending vehicle and the deceased was

working as a labourer and was on duty at the time of

the alleged accident.

11. Regarding this contention that the deceased was

not an employee of the owners of the offending vehicle,

this plea is liable to be rejected at the outset, since this

defence was nowhere pleaded in the written statement

filed by the appellant.

12. From averments made in the claim petition, the

case of the claimants from the very beginning is that,

the deceased was on duty for loading and unloading

the Malba from the offending vehicle.

13. PW-1, Seema, the widow of deceased has stated

that deceased used to work as a labourer and used to

load and unload the debris with the help of the tractor.

He was under the employment of the owner of the

tractor, namely, Ram Niwas and was getting monthly

salary of Rs.4,000/-.

14. In cross examination on behalf of owner, it was

suggested to PW-1 Seema that her husband used to

work on the alternate day.

15. This witness was not cross examined at all on

behalf of appellant.

16. So, it stands established that deceased was

employed with respondents 5 to 7, though working on

alternate days.

17. R1W1, Sh. Krishan Kumar, driver of the offending

vehicle in his testimony has stated that the deceased

was working as an employee of the owner of the

tractor.

18. In his cross-examination, he admitted that the

deceased was a labourer and doing the job work of

loading and unloading from tractor. Deceased was

sitting on the tractor in the capacity of employee of the

owners of the tractor. He also stated that the salary of

the deceased was made by the owners to the deceased

in his presence.

19. R2W1, Sh. Pradeep Kumar, owner of the tractor

admitted that at the time of accident, the deceased was

his employee and was sitting on the tractor.

20. In his cross-examination, he clearly stated that

the deceased was working with them prior to his death

before 15 days and they paid him salary for the same.

21. Though the owners in their written statement

have denied the factum of employment of the

deceased, yet it is proved from the statements of R1W1

and R2W1 that the deceased was their employee.

22. Moreover, widow of deceased is categorical about

this fact that her husband was under the employment

of the owner of the tractor and as per statement of PW-

2 constable Bhagwan Dass who is eyewitness as well

as an independent witness in this case, deceased at the

time of accident was sitting on the Malba of trolley and

fell down due to this accident.

23. PW-2 was not all cross-examined on this point

that deceased was not sitting on the trolley.

24. Thus, from the evidence on record it stands

clearly proved that the deceased was travelling in the

tractor as an employee of the owners of the tractor

and not as a gratuitous passenger at the time of

accident.

25. No other ground has been pleaded in this appeal.

26. Thus, I do not find any illegality or infirmity in the

impugned judgment of the Tribunal.

27. Hence, the present appeal is dismissed.

28. No order as to costs.

29. Trial Court record be sent back.

December 01, 2008                   V.B.GUPTA, J.
Bisht