Afr High Court
Case Details
1 2025:CGHC:5288 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 193 of 2018 1 - Smt. Fuleshwari Bai W/o Lt.Pan Singh Aged About 37 Years R/o Vill. Kolpadar, Post Turega, Distt. Mahasamund (Cg) At Present R/o Aarang , Po - Aarang, District Raipur (Chhattisgarh), District : Raipur, Chhattisgarh 2 - Santosh Kumar S/o Lt. Pan Singh Aged About 10 Years Minor Through Natural Guardian Mother Smt. Fuleshwari Bai W/o Lt. Pan Singh, R/o Vill. Kolpadar, Post Turega, Distt. Mahasamund (Cg) At Present R/o Aarang , Po - Aarang, District Raipur (Chhattisgarh), District : Raipur, Chhattisgarh 3 - Ku. Saraswati D/o Lt. Pan Singh Aged About 8 Years Minor Through Natural Guardian Mother Smt. Fuleshwari Bai W/o Lt. Pan Singh, R/o Vill. Kolpadar, Post Turega, Distt. Mahasamund (Cg) At Present R/o Aarang , Po - Aarang, District Raipur (Chhattisgarh), District : Raipur, Chhattisgarh --- Appellants versus 1 - Chabilal S/o Chowaram Bhatt R/o Vill. Kolpadar, Post Turega, P.S. Tumgaon, Distt. Mahasamund (Chhattisgarh) (Driver Of Tractor Bearing No.Cg 04 Da -4276 And Trolley No. Cg-04 Zc-7655), District : Mahasamund, Chhattisgarh 2 - Hemu S/o Shankerlal Yadu R/o Heerapur, Po - Tatibandh, P.S. Aamanaka, Distt. Raipur (Chhattisgarh) (Owner Of Tractor Bearing No. Cg 04 Da-4276), District : Raipur, Chhattisgarh 2 3 - Bajaj Allianz General Insurance Co. Ltd. Through - In Charge Officer, Bajaj Allianz General Insurance Company Ltd., Shivmohan Bhawan, Pandri, Raipur, P.S. Pandari, District Raipur (Chhattisgarh), District : Raipur, Chhattisgarh --- Respondents MAC No. 365 of 2018 1 - Bajaj Allianz General Insurance Company Ltd. Through Its Authorized Officer, Bajaj Allianz General Insurance Company Ltd. Shivmohan Bhawan Pandri Raipur, District Raipur, Chhattisgarh (Insurer), District : Raipur, Chhattisgarh ---Appellant Versus
Legal Reasoning
1 - Smt. Fuleshwari Bai W/o Late Paan Singh Aged About 37 Years R/o Kolpadra Post Turega District Mahasamund, Chhattisgarh, Presently R/o Village And Post Arang District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 2 - Santosh Kumar S/o Late Paan Singh Aged About 10 Years Minor Through Mother Smt. Fuleshwari Bai W/o Late Paan Singh, R/o Kolpadra Post Turega District Mahasamund, Chhattisgarh, Presently R/o Village And Post Arang District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh 3 - Ku. Sarshwati D/o Late Paan Singh Aged About 8 Years Minor Through Mother Smt. Fuleshwari Bai W/o Late Paan Singh, R/o Kolpadra Post Turega District Mahasamund, Chhattisgarh, Presently R/o Village And Post Arang District Raipur, Chhattisgarh (Claimants), District : Raipur, Chhattisgarh 4 - Chabilal S/o Chowaram Bhatt Village Kolpadar Post Turega P.S. Tumgaon District Mahasamund, Chhattisgarh (Driver Of Tractor No. C.G.04 Da 4276 And Trolly No. C.G.04 Zc 7655), District : Mahasamund, Chhattisgarh 3 5 - Hemu S/o Shankar Lal Yadu R/o Heerapur P.O. Tatibandh P.S. Amanaka District Raipur, Chhattisgarh (Owner Of Tractor No. C.G.04 Da 4276), District : Raipur, Chhattisgarh (Cause title taken from Case Information System) --- Respondents -------------------------------------------------------------------------------------------------- For Appellants /Claimants : Mr. Rakesh Kumar Thakur, Adv. For Respondent /Bajaj Allianze General Insurance Company Limited. : Mr. Robin A. Lall, Advocate. For Respondent No. 5/Owner : Mr. Rohitashva Singh, Advocate. -------------------------------------------------------------------------------------------------- Hon’ble Mr. Justice Naresh Kumar Chandravanshi Order on Board 29.01.2025 1. M.A. (C) No. 193 of 2018 filed by the claimants and M.A. (C) No. 365 of 2018, filed by the Bajaj Allainz General Insurance Company Limited are
Decision
being disposed of by this common award as both the appeals arise out of same accident and are directed against the impugned award dated 10 th October, 2017 passed by Sixth Additional Motor Accident Claims Tribunal, Raipur (C.G.) (For short, ‘the Tribunal’) in claim case No. 880 of 2012 whereby the Claims Tribunal has awarded compensation in favour of the claimants / respondents No. 1 to 3 herein to the tune of Rs.2,59,100/- alongwith interest @ 7.5% per annum from the date of filing of claim application, till its actual payment and directed the appellant/Bajaj Allianz General Insurance Co. Ltd. to first pay the award amount to the claimants and then to recover it from the owner of the offending vehicle i.e. respondent No. 5 herein. [For the sake of convenience, M.A. (C) No. 193 of 2018 would be taken up as lead case] 4 2. Facts of the case, in brief, are that on 12.11.2011 at about 4 pm respondent No. 1 - Chhabilal drove the Tractor bearing registration No. CG.- 4/D.A./4276 and Trolley bearing registration No. CG-04/Z.C./7655 (for short the offending vehicle), owned by respondent No. 2 – Hemu and insured with the appellant/Insurance Company, rashly and negligently and overturned, due to which, Pan Singh (since deceased), who was sitting in the trolley, got crushed under the tractor trolley, as a result thereof, he sustained multiple injuries on his person and succumbed to those injuries on the spot itself. Thereafter, FIR has been lodged in the Police Station Magarlod, District Dhamtari against the driver of the offending vehicle. Based on above facts, unfortunate wife and children of deceased – Pan Singh filed an application under Section 163-A of the Motor Vehicles Act, 1988 before the Claims Tribunal claiming compensation to the tune of Rs. 4,43,000/- for the death of deceased in a motor accident occurred on 12.11.2011. 3. Respondents No. 1 & 2 i.e. driver & owner of the offending vehicle filed their written statements, in which, they denied all the against levelled against them. They have pleaded that the offending vehicle i.e. tractor & trolley was insured with the appellant / Bajal Allianz General Insurance Company Limited, therefore, Insurance Company is liable to pay compensation to the claimants. 4. The appellant / Insurance Company has also filed written statement stating inter alia that while driving the offending vehicle, respondent No. 1/driver – Chhabilal was not having valid and effective driving licence and further the tractor-trolley was being used in violation of policy condition, as it was used apart from the agricultural purposes. It is further stated that the 5 trolley, attached to the tractor, was not insured, as such, Insurance Company is not liable to indemnify the award. 5. Based on the above pleading of the parties, learned Claims Tribunal framed as many as 5 issues, recorded evidence adduced by the parties and after appreciating the same, passed impugned award granting compensation to the claimants as has been stated in opening paragraph of the order. It has further been observed by the Claims Tribunal that since offending vehicle was being used in violation of policy conditions, therefore, Insurance Company is not liable to pay compensation, but since the Tractor was insured with the appellant / Bajaj Allianz General Insurance Co. Ltd, therefore, the Claims Tribunal has directed it to first pay the award amount to the claimants and then to recover it from the owner of the offending vehicle i.e. respondent No. 5 herein. 6. Being aggrieved & dissatisfied with the impugned award, appellant / Insurance Company has filed appeal bearing MAC No. 365/2018 to exonerate it (insurance Company) from its liability to pay the compensation to the claimants and claimants have filed MAC No. 193 of 2018 seeking enhancement of the amount awarded by the Claims Tribunal. 7. Learned counsel for the appellant / Insurance Company (in MAC No. 365 /2018) would submit that Ex.NA-3 S1 is the Insurance Policy issued in the name of Owner Hemu Yadav (respondent No. 5) in respect of offending Tractor only and the trolley attached with offending Tractor was not insured with the Insurance Company. It is contended that sitting capacity of the Tractor is only one, deceased Pan Singh was sitting in the trolley as Labourer and the appellant/insurance company is not statutory liable to 6 cover the risk of laourer sitting in the trolley nor had assumed such risk by entering into special contract with the owner of the vehicle by charging extra premium for the labour sitting on the trolley. He further submits that Claims Tribunal itself has held that offending vehicle – Tractor-trolley was being used in violation of policy conditions, despite that directed the Insurance Company to pay compensation to the claimants and then to recover it from the owner of the offending vehicle, which is perverse & illegal, because the deceased was sitting in the Trolley, as such, he was not third party; further the trolley itself was not insured, and therefore, the Tribunal has fallen in error in directing the appellant/Insurance Company to first pay the amount of compensation to the claimants and then to recover it from the owner of the offending vehicle. However, he submits that he has no objection with regard to quantum of compensation awarded by the Claims Tribunal. 8. Counsel for respondent No. 5/owner would submit that since the offending vehicle Tractor is insured with the appellant/Insurance Company, therefore, complete liability of payment of compensation may be fastened upon the appellant / Insurance Company. 9. Learned counsel for respondents No. 1 to 3/claimants would submit that though the deceased was working as Labour, but his annual income has been assessed as Rs.40,000/- meaning thereby Rs. 300/- per day and Rs. 3,333/- per month, whereas, at the time of incident minimum monthly wages was prescribed as Rs.4,277/-, as such, annual income of the deceased ought to have been calculated as Rs.51,324/- and adding other settled formula of calculation, amount of compensation ought to be enhanced suitably. He submits that in the facts & circumstances of the case and that the tractor is insured with the appellant/Insurance Company, the learned 7 Claims Tribunal has rightly directed the appellant/Insurance Company to first pay the amount of compensation to the claimants and then to recover it from the owner of the offending vehicle. In this regard, he placed reliance upon the judgment of the Supreme Court in the matter of Dhondubai vs. Hanmantappa Bandappa Gandigude since deceased through his Lrs. & 1 others 10. I have heard learned counsel for the parties and perused the material available on record including record of the Claims Tribunal. 11. Hon’ble Supreme Court in the matter of Dhondubai vs. Hanmantappa Bandappa Gandigude (supra) has held as under :- “5. In a matter of the present nature, the law is well settled that when a tractor and trailer are involved, both the tractor as well as trailer are required to be insured. Therefore, in a normal circumstance, when the appellant/claimant was travelling in the trailer which was not insured, the liability on the Insurance Company cannot be fastened and that extent the High Court was justified.” 12. In the instant case, admittedly, at the time of accident, deceased was travelling as Labour on the trolley / offending vehicle, as such, his status was not as 3rd party. Insurance of trolley has also not been proved, driving licence of Chhabilal, who is driver of the offending vehicle, was also not valid & effective on the date of accident i.e. on 12.11.2011, as its validity was expired and it was not renewed, rather it was renewed subsequent to the accident i.e. on 19.01.2012, as such, the finding recorded by the Claims Tribunal that offending vehicle was being used by respondents No. 4 & 5 herein in 1 2023 LawSuit (SC) 1212 8 violation of policy conditions, is found to be just & proper, which does not call for any interference. [13. So far as direction of Claims Tribunal to the Insurance Company that firstly the appellant/Insurance Company shall pay the amount of compensation to the claimants and then to recover it from the owner of the offending vehicle, is concerned, since the deceased was sitting in the offending vehicle / trolley as a Labour, as such, he was not a 3rd party. Further, perusal of Insurance Policy (Ex.NA-3) shows that the insurance company has not assumed the risk of person sitting on the trolley as labourer by entering into special contract with the owner of the vehicle by charging extra premium for the labour sitting on the trolley, therefore, the Insurance Company is not liable to pay compensation to the claimants. Order of 'pay & recover' could be passed, despite violation of policy conditions, if deceased or injured is found to be 3rd party, which is not found in the instant case, therefore, direction given by the Claims Tribunal to the appellant/Insurance Company to first pay the amount of compensation to the claimants and then to recover it from the owner of the offending vehicle, is perverse & illegal, deserves to be set aside by completely exonerating the Insurance Company from its liability to pay compensation to the claimants. 14. Since trolley attached with the tractor (offending vehicle) was neither insured nor deceased was 3rd party, therefore, order of ‘pay & recover’ passed by the Claims Tribunal cannot be upheld in the fact situation of the present case. In the aforecited case i.e. Dhondubai vs. Hanmantappa Bandappa Gandigude (supra), their Lordships of the Supreme Court has passed the order against the Insurance Company exercising the power vested with the Supreme Court under Article 142 of the Constitution of India, 9 which cannot be exercised by this Court, therefore, aforesaid case law is not helpful to the claimants in the fact situation of the instant case. 15. So far as appeal filed by the claimants i.e. MAC No. 193 / 2018 seeking enhancement of the compensation amount under impugned award is concerned, the Claims Tribunal has assessed annual income of the deceased as Rs.40,000/- i.e. Rs. 3,333/- per month. Though, at the time of accident i.e. 12.11.2011, minimum wages for unskilled labour was prescribed as Rs.4,277/- per month i.e. Rs.51,324/- per annum, but the claimants had filed instant claim petition under Section 163-A of the MV Act, 1988 and as per second schedule appended to Section 163-A of the MV Act, 1988, maximum income of the deceased / injured has been fixed to the tune of Rs.40,000/- per annum. In the instant case, learned Claims Tribunal has assessed annual income of the deceased as Rs.40,000/-, which is in accordance with second schedule appended to Section 163-A of the MV Act, 1988 and considering aforesaid annual income of the deceased, learned Claims Tribunal has awarded total compensation of Rs.2,59,100/- in favour of the claimants, which is found to be just & proper in light of second schedule appended to Section 163-A of the MV Act, 1988 and nature of claim petition filed under Section 163-A of the MV Act, 1988, therefore, amount of compensation granted by the Tribunal in favour of claimants is not liable to be interefered with. 16. Accordingly, MAC No. 193 of 2018 filed by the claimants is dismissed. 17. Further, MAC No. 365 of 2018 filed by the appellant/Bajaj Allianz General Insurance Company is allowed. Part of the impugned award by which the appellant/Bajaj Allianz General Insurance Co. Ltd. has been directed to first pay the amount compensation to the claimants and then to 10 recover the same from the respondents No. 1- Driver and respondent No. 2- owner of the offending vehicle, is set aside. Appellant/Insurance Company is fully exonerated from its liability to pay compensation to the claimants and now, the claimants are entitled to execute the award against the respondent No. 2/owner of the offending vehicle. Appellant/Insurance Company is also entitled to recover the amount deposited by it & disbursed to the claimants against the impugned award, if any, from the respondent No. 2 /owner, by filing execution petition before the concerned claims Tribunal. Award is modified to the above extent. Rest of direction given in the award shall remain intact. 18. Record of Claims Tribunal be returned forthwith to the concerned Claims Tribunal alongwith copy of this order. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.02.19 10:50:19 +0530