ORIENTAL INSURANCE CO. LTD., MANDI HP THROUGH ITS DIVISIONAL MANAGER, MYTHE ESTATE, KAITHU, SHIMLA-3 Vs. SH. UMA DUT SON OF SH. DAMODAR,

JUDGEMENT

(1.) THE facts of this case, in so far as they relate to the accident, are squarely covered by my decision in FAO Nos. 40 of 2009 & 45 of 2009, titled: Oriental Insurance Co. Ltd. vs. Sh. Devi Dass. The claim petition in this case has been instituted by the legal heirs of late Balwant, who, according to the claimants, had been engaged by deceased Ms. Sangita to load apple boxes in the vehicle. I do not find that these facts have been pleaded in the petition nor such evidence has been brought on the record, but it has been submitted by PW -2 Uma Dutt, father of the deceased, in his evidence that his son was engaged by Ms. Sangita to load apple boxes in the vehicle and Rs. 150/ - per day were settled as the loading charges etc. I need not go into the other aspect of the matter because the factum of the accident having been admitted and the only point to be considered is as to whether the deceased was travelling as a gratuitous passenger or as a labourer along with the owner of the goods. In the two appeals decided by me, I have already held that there is evidence to establish that the deceased Ms. Sangita and her minor son Devinder were travelling as the owners of the goods.

(2.) IN these circumstances, the submissions on behalf of the owner and the claimants that the deceased was travelling as a labourer for loading and unloading cannot be accepted. Independently also, I do not find any evidence in this appeal that he had been (a) engaged as labourer by deceased Ms. Sangita and (b) paid the amount by her. This evidence is also lacking in the other two appeals. In these circumstances, this appeal is also allowed. I direct that the claim be recovered from the owner of the vehicle.