MOHAMED IRFAN Vs. NATIONAL INSURANCE COMPANY AND OTHERS

JUDGEMENT

(1.) These are two appeals. One appeal bearing FAO No.6900- 2010 has been filed by the appellant-owner against the exoneration of the Insurance Company and the another one bearing FAO No.4158-2011 has been filed by the claimants seeking enhancement on the ground that the multiplier of 17 has been applied instead of 18. For the sake of convenience, the facts are being taken from FAO No.6900-2010. As per case set up by the claimants, on 10.06.2006 Anu Malikdeceased was travelling in the truck No.UP-22-T-0039 from Jagadhri to Muradabad. On the night intervening 10th and 11th June, 2008 when the truck was passing through a street in the area of Mugalpura, Muradabad, it came in contact with an electric wire, as a result of which deceased sustained electric shock and died. They have claimed compensation to the tune of Rs.8,00,000/- as the deceased was running the business of supply of metal thereby, earning Rs.3,300/- per month. The tribunal assessed the monthly income at Rs.3000/-, 1/3rd of the income of the deceased has been deducted on account of his personal expenses and a multiplier of 17 has been applied. The Tribunal further held that the deceased was travelling as a gratuitous passenger.

(2.) In this connection, learned counsel for the appellant-owner has argued that one of the persons who was travelling in the Truck, PW-2 Ashok Kumar, has stated that the deceased was dealing in metal dust and was travelling in the truck along with him as owner of the goods and the other persons were who had purchased the material. But he was not crossexamined on this issue by the counsel for the Insurance Company and, therefore, it had to be held that the deceased was not a gratuitous passenger.

(3.) Learned counsel for the respondent No.1-Insurance Company has vehemently defended the order by arguing that firstly in the claim petition no plea was taken that the deceased was travelling in the truck as the owner of any material and even in the written statement filed by the appellant owner this fact was not mentioned at all that the deceased was travelling as the owner. He has further argued that neither any bilty was placed on the record nor was there any toll tax receipt which was placed on record by the appellant-owner and in these circumstances no fault could be found with the finding that the deceased was a gratuitous passenger. To support his argument, he has relied upon an order passed by the High Court of Himachal Pradesh, Shimla in FAO-204-2005 decided on 17.12.2009 titled as "Oriental Insurance Company Limited Vs. Meera and others" wherein it was held as follows :-