India New The Company Limited v. Narayan Laxmi Nath Kalar, (Dead) & Ors.

Single Bench :- Hon'ble Shri R.N. Chandrakar. J M.A.fClNo. 537 of 2007 AppeSlant Respondents Claimants

1. The New India Assurance Company Limited, through the Divisional Manager, The New India Assurance Company Ltd. Second Floor, Rama Trade Centre, Bus Stand Road, Bilaspur (C.G.) Versus Narayan son of Laxmi Nath Kalar, aged about 40 years, resident of Mailabada, polilce Station Kunwakonda, District Dantewada (Chhattisgarh). (Dead)

1.A) Smt. Laxmi Wd/o Late 37 Narayan, years.

1.B) Shyamla! S/o Late Narayan, agedabout17years.

1.C) Ku. Bindiya D/o Late 12 Narayan, years.

1.D) Ritesh S/o Late Narayan, Police aged about 8 years. All R/o village Mailabada, Station Kalarpara, District Kunwakonda, Dantewada (Chhattisgarh) (Legal Heirs) Sushil Kumar Mukharji, son of Shambhunath Mukherji, age unknown, resident of Police Bazarpara, Station Kunwakonda, District Dantewada (Chhattisgarh) Raju Sao son of Tuphani resident Sao, age unknown, of Nakulnar, Police Statjon - Kunwakonda, District Dantewada (Chhattisgarh) Palnar, Driver

3. hi.-;-'7-:i ^t^'-:^ 1 ^m..-.^ | M.A.fQNo. 538 of 2007 Appellant : (Insurer) The New India Assurance Company Limited, through the Divisional Manager, The New India Assurance Company Ltd. Second Floor, Rama Trade Centre, Bus Stand Road, Bilaspur (C.G.) Versus Respondent Claimant Driver Qwner Years,

1. Rajman son of Ram Sai, aged village Station District 22 mailabada, Kunwakonda, Dantewada (Chhattisgarh) R/o police resident Palnar,

2. Sushil Kumar Mukharji, son of Shambhunath Mukherji, age unknown, Bazarpara, police Station Kunwakonda, District Dantewada (Chhattisgarh) 3. Raju Sao son of Tuphani Sao, resident of Nakulhar, Police Station - District Kunwakonda, Dantewada (Chhattisgarh) unknown, AND M.A.fClNo. 1017 of 2007 AReeUant : Respondents Claimant \ The New India Assurance Company Limited, through the Divisional Manager, The New India Assurance Company Ltd. Second FIoor, Rama Trade Bus Stand Road, Centre, Bilaspur (C.G.) Versus Goverdhan son of Laxman by caste Kalar, aged about 30 Police years, R/o Station Kunwakonda, District Dantewada (Chhattisgarh) Palnar, ^3 ^ Driver Owner

2. Sushil Kumar Mukharji, son of Shambhunath Mukherji, age unknown, Police Bazarpara, Station Kunwakonda, District Dantewada (Chhattisgarh) Resident Palnar, unknown,

3. Raju Sao son of Tuphani Sao, resident of Nakulnar, Potice Station - District Kunwakonda, Dantewada (Chhattisgarh) MISCELLANEOUS APPEALS UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Appearance: (In M.A.fCl No. 537/20071 Shri Sourabh Sharma, counsel for the appellant. Shri Paras Mani Shrivas, counsel fpr respondent No. 1-A to 1-D. None for other respondents. (In M.A.fC) No. 538/20071 Shri Sourabh Sharma, counsel for the appellant. None for other respondents though served. (In M.A.fC) No. 1017/20071 Shri Sourabh Sharma, counsel for the appellant Shri Paras Mani Shrivas, counsel for respondent No. 1. Order (Passedon j^ /07/2012) 1) Since M.A.(C)Nos. 537, 538 and 1017 of 2007 filed by the Insurance company arise out of the same accident and same award dated 06.02.2007 passed in Claim Case Nos. 115/2005, 114/2005 and 135/2005 by the Additional Motor Accident Claims Tribunal (for short 'the Tribunal'), South Bastar Dantewada, they are being djsposed of by this common order. 2) As againstthe compensation of Rs.3,92,000/-, Rs.4,90,000/- and Rs.6,12,OOOPclaimed by the claimants by filing an applications for theinjuries under Section 166 of the Motor Vehicles Act, sustained by Narayan (died during the pendency of appeal) in M.A.(C)No.537/2007, Rajman in M.A.(C)No.538/2007 Goverdhan in M.A.(C)No. 1017/2007 in the motor accident which took place on 17.05.2003, the learned Tribunal has awarded a total sum of Rs.1,90,100/-, Rs.51,800/- and Rs.2,24.500/-, respectively, as compensation to the claimants along with interest @ 6% per annum. 3) Brief facts, as per the version of the claimants, are that on 17.05.2003 claimants along with their friends were going from Mailabada to Nakulnar in the offending vehicle Metadoor bearing registration No. CG-18/ZB-0114, owned by respondent No.3 Raju Sao. The above offending vehicle being driven by respondent driver Sushil Kumar in a rash and negiigent manner dashed against a mango tree near Hitawar main road, as a result of which claimants Narayan, Rajman and Goverdhan sustained grievous injuries including fractures in the motor accident. The matter was reported to the police station, Kuwakonda, district Dantewada and offence under Sections 279 and 337 of the IPC was registered against the driver ofthe offending vehicle. 4) Claimants Naraya, Rajman and Goverdhan had filed claim petitions before the Claims Tribunal under Section 166 (1) of the Motor Vehicles Act, claiming 'the Act') 1988 (for short compensation of Rs.3,92,000/-, Rs.4,90,000/- and Rs.6,12,000/-, respectively, for the injuries sustained by them in the accident. 5) The learned Claims Tribunal on a close scrutiny of the evidence led, material placed and submissions made by the parties has awarded amount of Rs.1,90,1 OO/-, Rs.51,800/- and Rs.2,24,500/-, respectively, as compensation to the claimants along with interest @ 6% per annum. 6) Shri Sourabh iSharma, learned counsel for the appellant submits that appellaht/insurance company has limited liability under .Section 147 oftbe Act and its liability is limited to the extent to the person specified in the policy. The owner of the offending vehicle has not paid any extra premium to the appellant/ Insurance ^?C2W;- ,.. ^ / ^^ c,'^-' company to cover the risk of gratuitous passengers traveling in the offending vehicle. He also submits that the learned Tribunal failed to consider the facts and evidence availabie on record in its proper perspective and thus the finding recorded by the Tribunal is erroneous and perverse. 7) Per contra, Shri Paras Mani Shrivas, learned counsel respondent No. 1Ato 1D in M.A.(C)No.537/2007 and respondent No.1 in M.A.(C)No.1017/2007 supported the impugned award passed bythe Tribunal. 8) I have heard the learned counsel for the parties, perused the impugned awards and records ofthe Claims Tribunal. 9) A bare perusal of the records goes to show that claimant Rajman in M.A.(C)No.538/2007 was examined himself before the Tribuna! wherein he has stated that driver of the offending vehicle dashed against Metadoor, driving the vehicle in a rash and negligent manner the mango tree while he was going from Mailabada to Nakulnar in the offending vehicle, as a result of which he sustained injuries in his mouth. Further, he has denied the suggestion that driver Sushil. Kumar had taken fare charge from the persons traveling in the Metadoor. 10) M.A. Joseph Shaily (NAW/1), Administrative Officer, New India Insurance Company Ltd, has stated in his deposition that the offending vehicle Metadoor was insured with the Insurance company under the Goods Carrying Third Party Insurance Policy and under the said policy, employees/labours were insured. insurance for 3 party, driver and 5 In the offending vehicle 6-7 persons were seating. 11) In view of the aforesaid evidence of the witnesses, it is evident that injured/c|iaimant Rajman was not travelling as a labour in the offending vehicle but was a gratuitous passenger, and insurance .policy covers \the risk of only 3rd party, driver and 5 employees/labours as has been deposed by M.A. Joseph Shaily. Further, the evidence of claimant Rajman in M.A.(C)No.538/2007 ^•^ •^:'::^^'^^:.,:. '^ "^ ^-...^,^' ..^' finds corroboration from the evidence of Claimant Narayan in M.A.(C)No.537/2007 and Goyerdhan in M.A.(C)No. 1017/2007. Thus, the breach of policy condition is apparently clear in the instant case. 12) l am of the considered In view of the foregoing discussion, opinion that the Tribunal while passing the impugned award has the matter and thereby not considered all the aspects of committed illegality fastening liability appellant/lnsurance company further bearing registration No. CG-18/ZB-0114 is not appellant/insurance company of the offending vehicle Metadoor liable to pay compensation to the claimants, therefore, the instant appeals are partty allowed and it is held that the appellant/lnsurance company of the vehicle is not liable to pay compensation and that part of the impugned award is set aside. However, remaining part ofthe impugned award is not interfered with in the instant appeals. The appeilant/lnsurance company is exonerated from liability to pay compensation to the claimants. The compensation shall now be paid to the claimants by Raju Sao, owner and Sushil Kumar Mukharji, driver of the offending.vehicle Metadoor jointly and severally. 13) The amount, if any, deposited by the Insurance company shall be refunded to it. 14) No order as to costs. Sd/- R.N. Chandrakar Judge Vijay ;\