M/S ORIENTAL INSURANCE COMPANY, DIVISIONAL OFFICER, MYTH ESTATE, KAITHU, SHIMLA-171 003, THROUGH SHRI B.S. NEGI, ITS SENIOR DIVISIONAL MANAGER Vs. SMT. SHANTI DEVI, WIFE OF SHRI ATTAR CHAND,

JUDGEMENT

(1.) BY means of this judgment, the appeal filed by the Insurance Company and the cross -objections filed by the respondent No. 3 are being disposed of. The Insurance Company, in its appeal, submits that as per the law laid down by the Apex Court, the principle of pay and recover, whereby the Insurance Company is directed to pay the amount and recover it from the insured, is not applicable in case where a gratuitous passenger is carried in a vehicle.

(2.) THE grievance of the owner is that the learned MACT wrongly held that the deceased was a gratuitous passenger.

(3.) THE fact that the accident took place and that the deceased died in the accident is not denied. The main defence of the Insurance Company was that the deceased was travelling in the vehicle as a gratuitous passenger and not as owner of the goods. Admittedly, the deceased was a teacher and neither an agriculturist nor a dealer or a person engaged in the purchase and sale of vegetables. Even if the case is accepted at it's best, he was travelling to home on leave and, therefore, had bought a sack of potatoes and a sack of peas. The vehicle in question is a truck and nobody hires a truck to carry one bag of peas and one bag of potatoes. The claimants have examined one Roshan Lal as PW -4, who is an eye witness to the accident as he was travelling in some other vehicle. Though, he has talked about the accident but he has stated nothing to the effect that there were any peas or potatoes being carried in the vehicle in question.