New India Assurance Company Ltd., having its regional office at SCO v. Chittarmal & Ors.

Present: Mr. Paul S. Saini, Advocate for the appellant. Mr. N.K. Sanghi, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN

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

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- FAO No.4881 of 2003 -2- K. KANNAN J.

1. Both the appeals and civil revision arise out of the same accident. The appeals and the civil revision are respectively against the compensation for injuries sustained in the accident and also for damage to property in one case. The civil revision has been filed against an award which is less than Rs.10,000/-.

2. All the claimants in the three petitions were part of a musical band, who were transporting the musical instruments and going along with the musical instruments in a goods carriage. The contention was that they were returning in the insured's vehicle after a music party and the accident had taken place when due to the rash and negligent driving of the driver, the vehicle turned turtle and some of the musical instruments were damaged and the claimants had also suffered personal injuries. The Tribunal had found that the accident had arisen only on account of the rash and negligent driving of the driver of the insured's vehicle and assessed the compensation for injuries as well as damage to the property. It was contended at the trial that the claimants were all gratuitous passengers and they were not entitled to make the insurer liable for the claims arising out of the accident. The insurance company had placed reliance on the judgment of the Hon'ble Supreme Court in New India Assurance Company Limited Vs. Asha Rani and others 2003 (2) SCC 223. The Tribunal found that the said decision did not apply and all the claimants must be only taken as owners of the goods travelling along with the goods.

2. The quantum of compensation itself is not in dispute nor was the issue of rashness and negligence on the part of the driver of the FAO No.4881 of 2003 -3- insured's vehicle. The learned counsel appearing for the insurance company would contend that there was no proof at all that the vehicle had been booked only for transportation of the goods and that they had paid any hire charges for transporting the same. The contention was, therefore, that all the claimants must be taken only as gratuitous passengers and having regard to the admitted fact that the vehicle involved in the accident was a goods carriage, the insurance company could not be made liable since the policy of insurance did not cover the risk to bodily injury on persons, who were travelling in a goods carriage.

3. I do not think that the contention of the insurance company could be accepted. It has been brought out even in the FIR that there were musical instruments which had been damaged at that time. The extent of damage itself is not a point for consideration in appeal and the entire focus of the parties and the ground of attack on the respective awards was only with reference to the liability of the insurance company and the status of persons who were travelling in the vehicle. If the musical instruments were indeed transported in a goods carriage, it cannot be denied that the vehicle was predominantly put to the use of transport of the goods only. If the claimants had also accompanied the goods then they must be only taken as persons, who being the owners, were travelling along with the goods. I have seen the cross-examination of the witnesses and I find the counsel appearing for the owner and driver have suggested to each one of the witnesses that they were not travelling and only the goods were being transported. As regards the insurance company, the trend of the cross FAO No.4881 of 2003 -4- examination has been only to elicit the nature of injuries and the extent of damage that had been caused on account of the accident. It has been nowhere suggested to any one of the witnesses that they were not themselves owner for the goods or that the goods were not being transported in the vehicle. I have already observed that the suggestion by the owner and driver in the cross-examination of the witnesses was that they were not travelling along with the goods. The transportation of the goods themselves are not in challenge. I have also observed above that even in the FIR, there is a reference to the fact that the transport goods were being transported.

4. If the goods were being transported in the goods carriage, then the fact that the claimants were also there travelling along with the goods must be taken only to be governed by situation that the law requires compulsory insurance for persons, who were owners or the representatives travelling along with the goods. The liability of the insurance company cannot, therefore, be doubted. The award of compensation against the driver and the owner and making the insurer liable, under such circumstances, cannot also be in doubt.

5. The awards passed by the Tribunal in all the above cases would, therefore, require to be confirmed. The appeals and civil revision are dismissed. December 07, 2010 Pankaj* (K. KANNAN) JUDGE