Arun K. Goel, J.
1. By this common judgment, we propose to dispose of the four appeals, namely, National Insurance Co. Ltd. v. Bhag Devi, F.A.O. (MVA) No. 75 of 1994; National Insurance Co. Ltd. v. Deva Jean, F.A.O. (MVA) No. 76 of 1994; National Insurance Co. Ltd. v. Sewati Devi, F.A.O. (MVA) No. 78 of 1994; and National Insurance Co. Ltd. v. Leela Bhagati alias Leelawati, F.A.O. (MVA) No. 79 of 1994; since they have arisen out of the same accident. During the course of arguments, awards passed by the Motor Accidents Claims Tribunal, Shimla, were attacked by the appellant company on identical grounds, viz., that the insurance company did not charge any premium from the owner of the vehicle and there is no evidence on record to show that the passengers/injured were travelling in the vehicle along with their goods, which was a goods vehicle adapted and built for carriage of goods, none of such persons travelling in the said vehicle was carrying goods and there is no positive evidence to that effect. In addition to this, it was also argued that the passengers in the vehicle were carrying their personal belongings which were not goods within the meaning of Motor Vehicles Act and the deceased/ injured were being carried as unauthorised passengers, as such, the appellant company needs to be exonerated from payment of awarded amounts and liability, if any, according to the learned Counsel for the appellant is that of owner of the vehicle. In the case of F.A.O. (MVA) No. 79 of 1994, it has been additionally argued that there is no pleadings that the injured Leela Bhagati alias Leelawati was a fare paying passenger and only independent witness Ashok Kumar has said nothing about the luggage of this respondent as also there is no mention of any luggage of the persons travelling in the truck including deceased as well as injured in the FIR. So in this background, he has forcefully argued that all the appeals deserve to be allowed.
2. Accident in the present case has taken place on 12.12.1989 when some persons were travelling in truck bearing registration No. HPR 867 along with their goods meant for sale from Recong Peo to Pangi in Kinnaur District so as to enable them to attend a night festival and mela. When the truck reached near the place known as Pangi Mor near village Pangi its driver abruptly applied the brakes and asked the passengers to get down. In such process when the persons were alighting along with their goods, the driver of the truck rashly started to reverse the same in a rash and negligent manner, as a result of which it fell down into the khud and thereby crushing and injuring a number of persons. Four claim petitions were filed out of which present appeals have arisen. These petitions were contested and resisted by both, i.e., by the appellant as well as by the respondent owner.
3. In so far as owner respondent is concerned, his case was that the accident did not occur due to negligence of the driver and a verbal wrangle took place between the occupants of the vehicle and the driver, and as a protest the latter and the conductor alighted from the truck being kept in a stationary position. However, one of the miscreants from amongst the passengers took the driver seat and intermeddled with the machinery which resulted in the accident in question and thus the owner denied his liability for the claim of the claimants.
4. On the other hand, the appellant insurance company has taken a number of objections, viz., misjoinder and nonjoinder of parties; there is no privity of contract between Suresh Kumar and National Insurance Co. Ltd., therefore, the claimants are not entitled for compensation; further since the vehicle in question was a transport vehicle and at the relevant point of time was being used for the purpose not covered by the route permit, so it is not liable and the vehicle in question was not being driven by a duly licensed person/ driver as well as it was being driven not in accordance with specific terms and conditions of the insurance policy. While admitting the accident, it was pleaded by the appellant that it is not liable for payment of compensation because the deceased/ injured were gratuitous passengers and were travelling in the vehicle unautho-risedly. The vehicle being plied in violation of specific terms and conditions of the insurance policy, therefore, liability was disputed on this ground also.
5. Parties went on trial on the aforesaid pleadings.
6. In F.A.O. (MVA) No. 75 of 1994, following issues were framed on which parties went to trial:
(1) Whether Krishan Lal died in the accident in question as alleged? OPP
(2) In case the issue No. 1 is proved whether accident took place due to rash and negligent driving of the involved vehicle by the driver thereof, as alleged? OPP
(3) To what amount of compensation the petitioners are entitled and from whom? OPP
(4) Whether the petition is bad for nonjoinder and misjoinder of parties as alleged? OPR-2
(5) Whether the accident occurred due to wrongful acts, deeds and conduct of the deceased, if so, its effect? OPR-2
(6) Whether the vehicle involved in the accident was driven by a person not authorised, without requisite documents and for an unauthorised purpose, if so, its effect? OPR-2
(7) Relief.
7. After conclusion of the trial, an award dated 18.11.1993 in the sum of Rs. 3,60,000/- was passed, which was inclusive of the amount awarded under no fault liability along with interest at the rate of 12 per cent per annum from the date of petition, i.e., dated 23.5.1990.
8. Claimants in this case are widow, mother, minor sister and daughters of late Krishan Lal Negi who was working as a Ahalmad in the office of Senior Sub-Judge, Kinnaur besides doing his horticulture and agriculture business on his ancestral property at village Rarang in district Kinnaur. Deceased Krishan Lal Negi was aged 27 years at the time of his death and was having an income of not less than Rs. 3,500/- and in this background a compensation of Rs. 4,00,000/-was claimed. According to the claimants on the fateful day the deceased was travelling in the truck in question along with his bajaji articles which he was to sell at village Pangi of Devta Sukhna celebrations.
9. In F.A.O. (MVA) No. 76 of 1994, the parties went to trial on the following issues:
(1) Whether Bhag Sukh died in the accident in question as alleged? OPP
(2) In case the issue No. 1 is proved whether accident took place due to rash and negligent driving of the involved vehicle by the driver thereof as alleged? OPP
(3) To what amount of compensation the petitioners are entitled and from whom? OPP
(4) Whether the petition is bad for nonjoinder and misjoinder of parties as alleged? OPR-2
(5) Whether the accident occurred due to wrongful acts, deeds and conduct of the deceased, if so, its effect? OPR-2
(6) Whether the vehicle involved in the accident was driven by a person not authorised without requisite documents and for an unauthorised purpose, if so, its effect? OPR-2
(7) Relief.
10. After conclusion of the trial, an award in the sum of Rs. 2,40,000/- was passed, which was inclusive of the amount awarded under the no fault liability and interest at the rate of 12 per cent per annum from the date of petition, i.e., with effect from 23.5.1990 till its payment was also allowed in this case.
11. In this case claimants are widow, parents and minor sons of late Bhag Sukh. According to the claimants the deceased was working as beldar in the office of Horticulture Officer, Kinnaur and was also doing his horticulture and agriculture vocation at his village Reckong Peo on his ancestral property and thus from all the sources he was having an income of Rs. 2,000/- p.m. The deceased was stated to be 35 years of age at the time of his death. He was also stated to be carrying his goods, viz., cosmetic articles for sale in the mela at village Pangi of Sukhna Devta celebrations and a compensation of Rs. 3,00,000/- was claimed by claimants.
12. In F.A.O. (MVA) No. 78 of 1994 the issues framed were to the following effect:
(1) Whether Tundu Ram died in the accident in question as alleged? OPP
(2) In case the issue No. 1 is proved whether the accident took place due to rash and negligent driving of the involved vehicle by the driver thereof, as alleged? OPP
(3) To what amount of compensation the petitioners are entitled and from whom? OPP
(4) Whether the petition is bad for nonjoinder and misjoinder of the parties, as alleged? OPR-2
(5) Whether the accident occurred due to wrongful acts, deeds and conduct of the deceased, if so, its effect? OPR-2
(6) Whether the vehicle involved in the accident was driven by a person not authorised without requisite documents and for an unauthorised purpose, if so, its effect? OPR-2
(7) Relief.
13. After conclusion of the trial, an award in the sum of Rs. 1,50,000/- was passed which was inclusive of the amount awarded under the no fault liability and interest at the rate of 12 per cent per annum from the date of petition, i.e., with effect from 23.5.1990 was granted in favour of the claimants and against the appellants as well as owner of the vehicle.
14. Claimants in this case are the widow and minor daughters of deceased Tundu Ram who was working as a mason in H.P. P.W.D. and was also carrying on his horticulture and agriculture vocation on his ancestral land at village Baralangi. His monthly income from all sources was Rs. 3,000/- and at the time he boarded the truck in question he was carrying bajaji goods for sale in the aforesaid mela of Devta known as Sukhna celebrations and the articles were to be sold by him in the mela.
15. Similarly in F.A.O. (MVA) No. 79 of 1994, parties went to trial on the following issues:
(1) Whether the petitioner sustained injuries in the accident in question as alleged? OPP
(2) In case the issue No. 1 is proved whether accident took place due to rash and negligent driving of the vehicle by the driver thereof, as alleged? OPP
(3) To what amount of compensation, the petitioner is entitled and from whom? OPP
(4) Whether the petition is bad for nonjoinder and misjoinder of parties as alleged? OPR-2
(5) Whether the accident occurred due to wrongful acts, deeds and conduct of the petitioner, if so, its effect? OPR-2
(6) Whether the vehicle involved in accident was driven by a person not authorised without requisite documents and for an unauthorised purpose, if so, its effect? OPR-2
(7) Relief.
16. After conclusion of the trial, an award in the sum of Rs. 1,08,000/- was passed which was inclusive of the amount awarded under the no fault liability and interest at the rate of 12 per cent from the date of petition was granted in favour of claimant and against the owner-respondent as well as the appellant.
17. In this case the claimant is injured herself who was travelling in the truck along with other persons including Tundu Ram, Krishan Lai and Bhag Sukh. The claimant had paid Rs. 40/- as charges and money was similarly charged from other passengers also by the driver for transportation of luggage. Claimant in this case pleaded that she was doing horticulture and agriculture work besides sewing and knitting and was also working as a Home Guard. In the accident in question her left arm just little ahead of elbow was chopped of in the accident. According to her, she was earning Rs. 2,000/- to Rs. 2,500/- per month from all her pursuits and after the accident not only her capacity to work and earning has decreased but she could not cook her meals as well. Disability of this claimant vide Exh. PC to the extent of 60 per cent was certified by the Chief Medical Officer, Kinnaur.
18. In order to succeed in its plea, it was incumbent upon the appellant insurance company to have claimed issue on its plea and thereafter to have led evidence showing what was the risk covered as per the terms of the policy, besides the extent of premium charged and risk covered. In the instant case the plea that deceased-injured being gratuitous passengers travelling in the vehicle unauthorisedly was specifically raised, but no issue was claimed by the appellant during the course of trial in any of the cases. No doubt under law under Order 14, Rule 1(5) of the Code of Civil Procedure, a duty is enjoined upon the court to frame issues after going through the pleadings on which decision of the case appears to depend after examination of the parties, yet the parties cannot absolve themselves of the responsibility and if a party does not watch its interest by having proper issues framed then it would be presumed to have abandoned such issue which may arise from the pleadings but not framed by the court. In all the four cases out of which the present appeals have arisen, number of identical pleas were raised, yet no specific issue was claimed although these were framed in the presence of the learned Counsel for the appellant. As such, we have no hesitation in holding that such plea though raised has been abandoned and in taking this view, we are supported by the judgment of Punjab & Haryana High Court in Union of India v. Goverdhan Dass, P.A., 1973 Revenue Law Reporter 14.
19. In the instant case, when owner of the truck Suresh Kumar appeared as RW 1 he brought on record copy of policy Exh. RW1/A. According to him, driver had left his employment and thereafter joined some other employer where he died in another accident on 1.11.1990. In his cross-examination made on behalf of the appellant, he has denied the suggestion that the accident was not the result of somebody's fiddling with the machinery. According to him no fare had been charged by the driver, however, all the passengers had forcibly got into the truck. This is the only evidence produced by the owner. On the other hand, on behalf of the insurance company, no evidence was led except a statement was made that insurance policy may be read in evidence on its behalf.
20. Case of the owner was that the truck was insured with the appellant vide Exh. RW I/A. We are of the view that simply because the policy had been got marked as exhibited on the file does not by itself dispense with the proof of the same and in taking this view, we place reliance on the judgment of Apex Court in Sait Tarajee v. Yelamarti Satyam AIR 1971 SC 1865. In addition to this, all exclusions were to be proved by the insurance company and in case there was any breach of the policy, it was also incumbent upon the appellant insurance company to prove it. Thus to our mind, it could be done by specifically leading evidence regarding the risk that was covered in terms of Exh. RW I/A and what was not covered was also required to be proved besides pointing out the details of the premium charged. Unless the breach of the terms of the policy was proved, simply by raising the plea as in the present case, the appellant cannot be benefited. While taking this view, we place reliance on the judgment in Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC).
21. We may further point out that the plea raised on behalf of the claimants that the deceased were travelling as owners along with their goods in the vehicle in question, is substantiated from the evidence produced on the record. Reference in this behalf can be made to the statements of Ashok Kumar and Leela Bhagati, PWs and we have no hesitation in holding that the deceased/injured were travelling in the vehicle as owners of their respective goods. A learned single Judge of this Court has held in New India Assurance Co. Ltd. v. Usha Rani 1990 ACJ 785 (HP), that the insurance company is liable for payment of compensation in respect of an owner of goods travelling along with the goods as in the present case and therefore on this count also the appeal of the insurance company must fail.
22. Mr. S.S. Kanwar, learned Senior Advocate appearing for the appellant, in support of his submissions referred to Section 147 as well as to the definition clause particularly with reference to Sections 2(13), 14 and 16 of the Motor Vehicles Act and also policy Exh. RW I/A for exonerating the appellant and submitted that since the deceased were being carried unauthorisedly as such the insurance company is not liable. Mr. Kanwar has further pointed out that Ashok Kumar, the sole independent witness, has nowhere stated that deceased/injured were carrying goods while they were travelling in the vehicle in question at the time of accident and Leela Bhagati, the claimant in F.A.O. No. 79 of 1994, has nowhere pleaded that she was a fare paying passenger, therefore, the findings of the Motor Accidents Claims Tribunal deserve to be set aside and the appeals deserve to be allowed. Mr. Kanwar has cited number of decisions in support of his submissions that insurance company is not liable in case of unauthorised as well as gratuitous passengers as in the present case. According to Mr. Kanwar, the stand taken up by the insurance company in its written statement stands duly proved including exclusion, therefore, the Motor Accidents Claims Tribunal below is not justified in awarding compensation in all the cases. The case law cited by Mr. Kanwar is: Pushpa bai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC); Bhoi Vanaji Dhulaji v. Patel Shivabhai Kashibhai 1981 ACJ 107 (Gujarat); National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat); Oriental Fire & Genl. Ins. Co. Ltd. v. B. Parvathamma 1984 ACJ 680 (Karnataka); and Oriental Fire & Genl. Ins. Co. Ltd. v. Hirabai Vithal Nikam 1988 ACJ 494 (Bombay).
23. We may point out that as per National Insurance Co. Ltd. v. Nathibai Chaturabhuj 1982 ACJ 153 (Gujarat), in order to succeed, appellant was required to prove the following:
(1) That on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward;
(2) That there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward; and
(3) That the vehicle was, in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward.
In the event of all these conditions being established by the insurer-appellant, the benefit of statutory insurance was not available to the owner of the vehicle in respect of such passengers and in such an eventuality, he will not be entitled to recover anything as the insurer will not be liable to satisfy the award under Section 95(1) of the Motor Vehicles Act, 1939.
24. From the evidence on the record, nothing has been proved by the appellant, therefore, the appellant cannot derive any benefit from the cases cited at the Bar. Similarly, in the case of Oriental Fire & Genl. Ins. Co. Ltd. v. B. Parvathamma 1984 ACJ 680 (Karnataka), it was held that the passengers travelling in a goods vehicle were merely fare paying passengers going from place to place and had nothing to do with goods carried in vehicle, therefore, the insurance company was exonerated from payment of compensation. It was held that when the driver of the tanker in question gave lift to two passengers who were fatally injured in the accident in question arising due to his negligence, said act of the driver was done in the course of his employment and therefore owner was vicariously liable to pay the compensation.
25. In the present case, we have already held that the passengers/injured were travelling in the vehicle at the time of accident along with their goods for which the fare had been paid by them so this judgment does not advance the case of the appellant in any manner whatsoever. Reliance placed by Mr. Kanwar on the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Hirabai Vithal Nikam 1988 ACJ 494. (Bombay), is also misplaced, because that is a case of passengers being cairied for hire or reward in a goods vehicle whereas in the instant case as already observed, the persons were travelling as owners of the goods. Other cases referred to by Mr. Kanwar also do not advance his case any further.
26. In view of our findings that the appellant has failed to prove insurance policy in accordance with law and also the exclusions it cannot be exonerated from making payment of the compensation. Simply because the copy of policy had been brought on record by the insured would not prove the same on the ground of its having been exhibited on the file, thus the entire edifice of the case of the appellant falls to the ground. Similarly, we have accepted the evidence led on behalf of the claimants to the effect that the passengers/injured were not simpliciter passengers travelling for hire and reward but in fact were travelling as owners of the goods for carriage for which the fare was charged by the driver. The net result of the above discussion is that the present appeals are devoid of any merits and are accordingly dismissed.
27. No other point has been urged on behalf of the appellant in support of these appeals.
28. As a result of the aforesaid discussion, all the four appeals, that is, National Insurance Co. Ltd v. Bhag Devi, F.A.O. (MVA) No. 75 of 1994; National Insurance Co. Ltd. v. Deva Jean, F.A.O. (MVA) No. 76 of 1994; National Insurance Co. Ltd. v. Sewati Devi, F.A.O. (MVA) No. 78 of 1994; and National Insurance Co. Ltd. v. Leela Bhagati alias Leelawati, F.A.O. (MVA) No. 79 of 1994 are dismissed with costs which are quantified at Rs. 750/- in each of the four appeals.