National Insurance Co.Ltd. vs Roshan Lal & Ors.
2009 Latest Caselaw 2000 Del

11 & 12
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: 12th May, 2009
%
+     MAC.APP. 301/2005 and CM No.5353/2005 and
      CM No.5356/2005

      NATIONAL INSURANCE CO.LTD.       ..... Appellant
                    Through : Mr. Vishnu Mehra, Adv.

                    versus

      BALBIRO & ORS.                  ..... Respondents
                           Through : None.

+     MAC.APP. 72/2005 and CM Nos.1885-86/2005

      NATIONAL INSURANCE CO.LTD.     ..... Appellant
                    Through : Mr. Vishnu Mehra, Adv.

                    versus

      ROSHAN LAL & ORS.        ..... Respondents
                    Through : Mr. S.N. Parashar, Adv.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

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

                          JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal on the short ground that claimant/respondent No.1

in MAC.APP. 301/2005 and the deceased - Naresh Kumar in

MAC.APP. 72/2005 were gratuitous passengers travelling in

the insured tempo and, therefore, the Insurance Company is

not liable to pay the compensation under the policy.

2. PW-5 - Balbiro has stated in her affidavit that she and

the deceased were travelling in the tempo along with

vegetables and two chairs. It is also noted that the witness

could not be contradicted in cross-examination.

3. It is also noted that the onus to prove the defence

taken by Insurance Company was on the appellant and no

evidence whatsoever was led by the Insurance Company to

prove the same.

4. The learned Tribunal has given a finding on page 18 of

the impugned award that PW-5 in her affidavit has

specifically stated on oath that she as well as the deceased

were travelling in the tempo with their goods as owner of the

goods and, therefore, they were not gratuitous passengers.

5. The learned counsel for the appellant submits that the

insured in MAC.APP.301/2005 and the deceased in

MAC.APP.72/2005 were both peons, one in MCD and the

other in DTC, and there is no pleading in the claim petition

that they were travelling with the goods. In this regard, it is

noted that the issue of gratuitous passenger was raised by

the Insurance Company for the first time in the written

statement and, therefore, there was no occasion with the

claimants to plead the reply to the defence of the Insurance

Company in the claim petition.

6. Considering that the appellant did not lead any

evidence whatsoever and on the contrary, the claimants led

positive evidence to prove that the claimants were travelling

on the tempo along with the goods, there is no infirmity in

the finding of the learned Tribunal that PW5 and the

deceased were not gratuitous passengers and, therefore the

Insurance Company was liable.

7. There is no merit or substance in the appeals. Both the

appeals are dismissed.

8. All pending applications are also dismissed. The ex-

parte interim stay order dated 15th April, 2005 stands

vacated.

9. The appellant has deposited the entire award amount

with the learned Tribunal in compliance with the order dated

15th April, 2005 out of which 50% has been released to the

claimants and there is a stay with respect to the balance

50% of the award amount. The learned Tribunal is directed

to release the balance 50% of the award amount to the

claimants in terms of its award.

10. Copy of the order be also sent to the learned Tribunal

for compliance. The learned Tribunal is directed to comply

within two weeks and send the report of compliance to this

Court. Copy of this order be also sent to the claimants.

11. Copy of this order be given 'Dasti' to learned counsel

for the parties under signatures of Court Master.

J.R. MIDHA, J MAY 12, 2009 aj