Afr High Court
Case Details
1 2025:CGHC:23911 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 515 of 2019 1 - Branch Manager United India Insurance Company Limited, Anupama Square, Jagdalpur District Bastar Chhattisgarh. Through Authorised Signatory United India Insurance Company Limited, Divisional Office 2nd Floor, Gurukripa Towers, Vyapar Vihar Road Bilaspur Chhattisgarh. 495001, District : Bilaspur, Chhattisgarh versus --- Appellants 1 - Smt. Lalita Thakur Wd/o Late Suresh Thakur Aged About 36 Years Occupation House Wife, 2 - Minor Jaiprakash Thakur S/o Late Suresh Thakur Aged About 15 Years 3 - Minor Ku. Mamta Thakur D/o Late Suresh Thakur Minor, Appellant No.2 and 3 Through Natural Guardian Mother Smt. Lalita Thakur (Respondent No. 1), 4 - (Died And Deleted) Lachhaman Thakur As Per Hon'ble Court's Order Dated 04-05-2023. 5 - Smt. Sulochana Bai W/o Lachhman Thakur Aged About 58 Years All are R/o Village Sagunghat P.O. Leda Police Station Tongpal Tehsil Chindagarh District Sukma Chhattisgarh. (Claimants). 6 - Sukhram Markam S/o Kodaram Markam Village Sagunghat Post Office Leda Police Station Tongpal Tehsil Chindagarh District Sukma Chhattisgarh. --- Respondent(s) For Appellant : Respondents No.1 to 5 : Mr. B.N. Nandey, Advocate Mr. Praveen Dhurandhar, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 13/06/2025 1. Appellant/Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) against the BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN impugned award dated 18.09.2018, passed in Claim Case 2 No.85/2016, whereby the learned Motor Accident Claims Tribunal, Bastar at Jagdalpur (for short ‘the Claims Tribunal’) has awarded total compensation of Rs.5,00,000/- against the death of the driver of offending vehicle in an application filed under Section 163-A of the Act, 1988. 2. Facts relevant for disposal of this appeal are that the claimants being the legal representative of the deceased filed an application under Section 163-A of the Act of 1988 claiming total compensation of Rs.17,97,000/- under different heads on account of death of Late Suresh Kumar Thakur, who died in the road accident pleading therein that on 10.06.2009 at about 7.30 o'clock, Suresh Kumar was employed as driver of the offending tractor and trolley owned by respondent No.1. On the date of accident, deceased on instructions of respondent No.1/owner of the offending tractor was going to Tongpal from Dharbha. When suddenly herd of animals came near Banjarin Temple Road, in an attempt to save them, the vehicle fell into velly and turned turtuled, as a result of which, Suresh Kumar Thakur died on the spot. It was further pleaded that the deceased at the time of accident was 30 years of young and healthy man and was working as driver and earning Rs.3,333/- per month. The claimants are dependents upon them and because of untimely death of their sole bread earner, they are facing great financial crises. 3. The non-applicants/respondents filed their reply to the claim application resisting the claim of claimants. Non-applicant No.2/Insurance Company in its reply to the claim application denied the happening of the incident with the offending vehicle. The death of 3 deceased Suresh Kumar was also denied in the said accident. It was pleaded that on the date of incident, the offending vehicle was used for carrying passenger and there were 20 – 25 persons in it. On the date of the incident, the offending vehicle was being driven by the deceased without a valid driving license, without the required fitness certificate and permit and in violation of the conditions of the insurance policy, therefore, the Insurance Company is not liable to indemnify the award of compensation. 4. The learned Claims Tribunal after appreciation of the pleadings and the evidence brought on record by the respective parties, allowed the claim application in part awarded Rs.5,00,000/- as compensation to the claimants. 5. Learned counsel for appellant/Insurance Company submits that the vehicle involved in the accident is a tractor and trolley and though insurance policy has been separately obtained, however, it was obtained under farmers package policy and not as a commercial vehicle. On the date of accident, admittedly, the tractor was carrying Baratis of more than about 20 to 25 persons. As the vehicle is being used for commercial purposes, there is breach of policy conditions. Hence, the learned Claims Tribunal committed gross illegality in fastening the liability to satisfy the amount of compensation upon the appellant/non-applicant No.3. He also submits that the learned Claims Tribunal has awarded Rs.5,00,000/- in lump sum in an application filed under Section 163-A of the Act, 1988 relying upon the amended schedule under Section 163A of the Act, 1988, which came into effect from 22.05.2018. Whereas, the date of accident is 10.06.2009 i.e. prior 4 to the coming into force of amendment. He lastly contended that as the driver himself died in the accident while driving the offending vehicle, application under Section 163A of the Act, 1988 is not maintainable. 6. Learned counsel for respondents No.1 to 3 and 5 opposes the
Legal Reasoning
This Court in case of Kumbh Lal Patel & Ors. Vs. Jaggu Ram & Ors, reported in 2018 1 CGLJ 250 has held as under :- “14. The Division Bench of MP High Court in case of National Insurance Co. Ltd. Vs. Sarvanlal & Ors.2004(4)MPHT 404 (DB) dealing with the similar issue had dismissed the appeal of the insurance company. The view of the Division Bench was based on an earlier Division Bench decision of MP High Court in case of Pushpa Devi & Ors. Vs. Kamal Singh & Ors. 2001(3) MPLJ 548 wherein also it was held that once when it is found that the deceased were travelling as members of the marriage party in the tractor trolley which was being used otherwise than for agriculture purpose for which it was insured, the insurer is liable to pay compensation to the claimants on account of clause 7 of Rule 97 of the Rules, 1994. Similar view has also been taken by this court in case of Bisun Singh & Anr. Vs. Ratni Devi & Anr. (MAC No.657 of 2012 and another connected matter, decided on 01.08.2017). 15. For the aforesaid reasons, this court is of the opinion that the impugned award inasmuch as exonerating the insurance companies was not proper, legal or justified. The same deserves to be and is accordingly modified holding that the amount of compensation shall be jointly and severally payable by the owner, driver and the two insurance companies which had insured the tractor as well as trolley. The two insurance companies which had insured the tractor and trolley shall equally share the liability of payment of compensation to the claimants.” 12. In the aforementioned decision also, this Court has held that the 7 tractor trolley can be used for carrying 20 persons for the purpose of marriage and in absence of proof of fact that at the time of accident, the trolley was carrying more than 20 persons, the appellant/Insurance Company cannot be exonerated from its liability to indemnify the insured. Considering entirety of the facts and the evidence available on record, the provisions of Rule 97 of the Rules, 1994 and the decision of this Court in case of Kumbh Lal Patel (supra) I am of the view that the learned Claims Tribunal has not committed any error in recording a finding that there was no breach of conditions of insurance policy. Accordingly, the said finding is affirmed. 13. Second grounds raised by learned counsel for appellant that the learned Claims Tribunal ought not to have awarded Rs.5,00,000/- relying upon the amended provision, which came much after happening of the accident is concerned, this issue has been settled by the Hon'ble Supreme Court in case of New India Assurance Company Ltd. Vs. Urmila Halder, reported in 2024 SCC OnLine SC 4983 and held as under :- “4. The short point for consideration before this Court is whether the amendment in Section 163-A of the Motor Vehicles Act, 1988, which came into effect by a Gazette Notification on 22nd May, 2018, would relate to an accident which had occurred prior to the said date. 10. The order of the High Court is well discussed and we agree with the view taken. We may, however, add that a beneficial legislation would necessarily entail the benefit to be passed on to the claimant in the absence of any specific bar to the same. In the present case, the liability of the 8 appellant-Insurance Company has not been interfered with. Only the computational mode and the modality have been further clarified, which rightly has been noted by the High Court and accordingly, the claim has been enhanced to Rs. 5,00,000/-(Rupees Five Lakhs). As 50% of the compensation amount was stayed by this Court, the same be paid to the respondent in terms of the impugned judgment within eight weeks.” 14. In view of the decision of Hon'ble Supreme Court, the said submission of learned counsel for the appellant/Insurance Company is not sustainable and I do not find any error in the impugned award of the learned Claims Tribunal awarding Rs.5,00,000/- to the claimants on an application under Section 163A of the Act, 1988 applying the amended provisions, which came into force on 22.05.2018. 15. So far as the last submission of learned counsel for appellant that application under Section 163-A of the Act, 1988 is not maintainable is also not sustainable in view of the decision in case of United India Insurance Company Ltd. Vs. Sunil Kumar & Another, reported in (2019) 12 SCC 398. In the case at hand, the claim is against motor accidental death of driver of offending vehicle, while he was driving the vehicle. In the claim filed under Section 163-A, the negligence is not required to be proved. 16. For the aforementioned discussions I do not find any merit in this appeal and accordingly, the appeal being sans merit is liable to be and is hereby dismissed. 9 17. Learned counsel for the respondents/claimants would submit that he is not pressing the cross-appeal filed. Accordingly, the cross-appeal filed by the claimants is dismissed as not pressed. Sd/- (Parth Prateem Sahu) Judge Balram
Arguments
submission of learned counsel for the appellant and would submit that learned Claims Tribunal upon appreciation of evidence and the pleadings available on record have recorded a finding that there was farmer package policy issued by the appellant/Insurance Company for the tractor. In the evidence, the officer of the insurance company (NAW-1) had admitted that the policy was issued covering the risk of one person. He further submits that the learned Claims Tribunal after appreciating all the evidence available on record has passed the impugned award, which does not call for any interference. 7. I have heard learned counsel for parties and perused the documents placed on record. 8. Admittedly, in the tractor there is sitting capacity of one person i.e. driver and in the case at hand, the case is against the death of driver of the vehicle while driving the tractor. The learned Claims Tribunal further taken note of the Rule 97 (7) of the C.G. Motor Vehicle Rules, 1994 (In short 'the Rules, 1994'), wherein it permits for carrying the person at the time of Mela, Market, Religious Programme and Marriage and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time. 5 9. The provisions of Rule 97 (7) of the Rules, 1994 is extracted below for ready reference :- “Rule 97. Carriage of person in Goods Carriage. 1. 2. 3. 4. 5. 6. 7. x x x x x x x x x x x x x x x x x x x x x x x x Notwithstanding anything contained in sub-rules (1) and (2) but subject to the provisions of sub-rule (5) such tractor-trailer other than those registered in the name of industrial organisation. Municipal Institutions, water supply institution and non-agricultural cooperative societies, and the unladen weight of which does not exceed 7300 Kgs. may be used for the following purposes- (i) for carrying labourers and the member of the family of agriculturist for the purpose of agriculture or any purpose connected with agriculture including sale and purchase of articles or agriculture. (ii) for carrying persons at the time of Mela, Markets, Religious Functions, Marriages and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time.” 10. Learned Claims Tribunal taking note of aforementioned provisions has further recorded that the appellant/Insurance Company could not be able to prove that at the time of accident, more than 20 persons were being carried on the trolley attached to the tractor, which is based on appreciation of evidence, hence cannot be said to be perverse. In the aforementioned facts and the evidence available on record, as also 6 the Rule 97 of the Rules, 1994, learned Claims Tribunal has recorded a finding that there was no breach of conditions of policy. 11.