Smt. Mankunwar & Ors v. Mithlesh Soni & Ors.)
Case Details
1 Digitally signed by BHOLA NATH KHATAI Date: 2025.05.02 15:44:09 +0530 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved on 16/04/2025 Delivered on 02/05/2025 MAC No. 1930 of 2018 Branch Manager The Oriental Insurance Company Limited, Rama Trade Centre, First Floor, Near Bus Station Apartment, Razeev Plaza, Bilaspur, District Bilaspur Chhattisgarh. versus ... Appellant 1. Smt. Mankunwar Wd/o Dayaram @ Viradiha, Aged About 50 Years Caste Rajwar, R/o Village Sonwahi, Police Station Jainagar, Tahsil And District Surajpur, Chhattisgarh. 2. Santosh Kumar S/o Late Dayaram @ Viradiha Aged About 28 Years Caste Rajwar, R/o Village Sonwahi, Police Station Jainagar, Tahsil And District Surajpur Chhattisgarh. 3. Bhuneshwar S/o Late Dayaram @ Viradiha Aged About 25 Years Caste Rajwar, R/o Village Sonwahi, Police Station Jainagar, Tahsil And District Surajpur Chhattisgarh. 4. Mithlesh Soni S/o Satya Narayan Soni, Aged About 40 Years R/o Lal Bahadur Shashtri Ward, Mayapur (Chandni Chowki) Ambikapur, Police Station Ambikapur, District Surguja, Chhattisgarh. 2 5. Ram Avtar S/o Teju Ram, Aged About 50 Years R/o Village Latori, Police Station Jainagar, Tahsil And District Surajpur Chhattisgarh. ... Respondents For Appellant
Legal Reasoning
: Ms. Swati Agrawal, Adv. on behalf of Mr. Pankaj Agrawal, Adv. For Respondents 4 & 5: Ms. Aakanchha Vishwakarma, Adv. on behalf of Mr. A. N. Pandey, Adv. For other Respondents : None. Hon'ble Shri Justice Sanjay Kumar Jaiswal C.A.V. Order 1. This is insurer’s appeal under Section 173 of the M.V. Act, 1988 challenging the award dated 07.08.2018 passed by 3rd Additional Motor Accident Claims Tribunal, Surajpur, District - Surajpur (C.G.) in Motor Accident Claim Case No. 63/2017 (Smt. Mankunwar & Ors. vs. Mithlesh Soni & Ors.). 2. The facts, relevant for disposal of this appeal, in brief, are that Daya Ram @ Viradiha (deceased) was working in the shop of respondent No.4 Mithlesh Soni who was the owner of the offending vehicle (Chhota Hathi) bearing registration No. CG-13-V-9256. On the date of accident i.e. 05.03.2017, Respondent No.5 Ram Avtar, while driving the said vehicle rashly and negligently collided with a tree branch near the Gas Agency at Banaras Road. The deceased Daya Ram alias Virdiha, who was sitting in the said vehicle, got seriously injured after hitting the tree branch and died during treatment at Mission Hospital. 3. A claim application for compensation under Section 166 of the Motor Vehicles Act, 1988 was filed by the wife and sons 3 (respondents No. 1 to 3) of the deceased (Dayaram @ Viradiha) claiming a total compensation of Rs. 14,00,000/-. After due consideration, the Tribunal awarded a total compensation of Rs.5,45,200/- with interest @ 9% per annum, from the date of application till its realization, in favour of the claimants and against the insurer/appellant. Hence, the appeal. 4. The first contention of the appellant/insurance company is that deceased Dayaram alias Viradiha was not sitting in the cabin of the offending vehicle but he was sitting in the Dala (carriage/body) of the vehicle, due to which the accident occurred. As such, there was a clear breach of insurance conditions and therefore, the insurance company is not liable for payment of compensation. 5. The second contention of the insurance company is that the age of the deceased has been determined as 60 years by the Tribunal, whereas as per the Aadhar card of the deceased, attached with the report of the Investigator submitted by the insurance company, his date of birth is 27.10.1951. As such, his age was about 66 years at the time of accident. Therefore, the compensation amount should have been calculated considering the age of the deceased to be 66 years. Hence, prayed for allowing the appeal. 6. There is no representation on behalf of the respondents 1 to 3 - claimants. 7. Learned counsel appearing for the respondents 4 & 5 i.e. the driver & the owner supports the impugned judgment and submits that in the facts and circumstances of the case, the impugned award passed by the Tribunal regarding liability is just and proper and requires no interference in the same. 8. I have heard learned counsel for the parties and perused the 4 record including award impugned. 9. In the case in hand, Santosh (AW-1), son of deceased Dayaram @ Viradiha, has been examined on behalf of the claimants side. On the other hand, the Administrative Officer of the Insurance Company, Ankit Gupta (NAW-1) and the owner of the vehicle, Mithlesh Soni (NAW-2), have been examined. The certified copy of the charge sheet Ex. A-1 to Ex. A-11 have been submitted on behalf of the claimants side. 10. From the entire evidence available on record and the statement of the claimants side, it is clear that the deceased Dayaram alias Viradiha used to work as a labourer in the house/shop of Mithlesh Soni, the owner of the offending vehicle. On the date of accident i.e. 05.03.2017, he was sitting in the Dala of the offending vehicle. The said fact is clear not only from the statement of Ankit Gupta, the Administrative Officer of the insurance company, but also from the charge sheet presented by the claimants that the deceased was sitting in the Dala of the offending vehicle. The said fact has also been stated by the son of the deceased, Santosh himself that at the time of accident, Dayaram @ Viradiha was sitting in the Dala of the offending vehicle. 11. As per the insurance policy Ex.D-1, a premium of Rs. 50/- was paid for the driver & conductor/cleaner. It has also been stated in the claim application that the owner of the offending vehicle, Mithlesh Soni, was in the paddy business and at the time of accident, sacks of paddy were being transported in the offending vehicle. Since the deceased Dayaram @ Viradiha was travelling in the offending vehicle as a representative of the owner to take care of the said goods, his risk is covered, but he was sitting in the Dala 5 instead of the cabin of the vehicle. In such a situation, there is a clear breach of the terms and conditions of the insurance policy. 12. The Hon’ble Supreme Court in the matter of National Insurance Co. Ltd. v. Cholleti Bharatamma and others reported in (2008) 1 SCC 423, in para-19 held that “It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle.” 13. In the light of the aforesaid decision of the Hon’ble Supreme Court it is clear that a person travelling in any goods carriage in the capacity as the owner or as his representative of the goods carried (or as an employee of the insured) has necessarily to travel in the ‘cabin’ of the vehicle, based on the seating capacity as permitted, so as to come within the purview of the statutory coverage. 14. In the instant case, admittedly, the deceased was travelling in the Dala (carriage) of the offending vehicle, in violation of the insurance conditions and this being the position, this Court is of the opinion that the finding recorded by the Tribunal with regard to liability is contrary to law and judgment passed by the Hon’ble Supreme Court in the case of Cholleti Bharatamma (supra). Hence, the insurance Company is not liable for payment of compensation. 15. As regards the second contention of the appellant-insurance company in respect of age of the deceased, a bare perusal of the records regarding the age of the deceased, it becomes clear that in the claim application, his age has been stated as 55 years. But according to the charge-sheet documents of the police, the age of the deceased has been determined as 60 years. During the examination of claimant Santosh (AW- 1), the insurance company has certainly suggested to him 6 that the age of the deceased was about 67 years, which Santosh has denied. In order to establish the age of the deceased to be 67 years, the Aadhar card has been presented along with the Investigator's report, but the insurance company has not examined the said Investigator. Claimant Santosh has not even been confronted with the Aadhar card of the deceased during his cross-examination. In this situation, the insurance company has not been able to establish that the age of the deceased was 66 years at the time of the accident. 16. In that view of the matter, there is no need to interfere with the amount of compensation calculated by the Tribunal by considering the age of the deceased as 60 years. 17. From the record it is clear that the offending vehicle was duly insured with the Insurance Company but due to breach of policy condition the Insurance Company has been exonerated from its liability. However, considering the principles laid down by the Hon’ble Supreme Court in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558, this Court is of the opinion that in the larger interest of justice it would be appropriate to pass an order of pay and recover. 18. Accordingly, it is directed that the Insurance Company of the offending vehicle shall first pay the compensation awarded to the claimants and then recover the same jointly or severally from the driver and the registered owner of the vehicle in question. 19. In the result, the appeal is partly allowed to the extend indicated herein-above. 7 20. Records of the Tribunal along with a copy of this order be sent back forthwith for compliance and necessary action, if any. Khatai Sd/- (Sanjay Kumar Jaiswal) Judge