IN THE HON'BLE HIGH COURT OF CHHATTASGARH AT '^^Q APPELANTS- Claiments BILASPUR M.A.©N0.2'^ QF 2009 Smt. Peelabai Chouhan, W/o Bhiyaram Chouhan, Age 65 years, R/o Bhainapara, Tah. Kharsia, Distt. Raigarh (C.G.) A ^ VERSUS Respondehts: - ^\ 1. Vijay Chouhan, S/o Setram Chouhan k* ^ Aged about 25 years, R/o Bhainapara, -^S'^ Tah- Kharsia, Distt. Raigarh (C.G.") ^ . •' (Non Applicant No. 1) ^ \^ ^ ^.^ 2- Bhiyaram Chouhan, S/o Ramprasad ^' I&^ f Chouhan, Age 72 years, R/o Bhainapara, Tah. Kharsia, Distt. Raigarh (C.G.) (Non Applicant No. 2) 3. The Oriental Insurance Co. Ltd. Through Branch Manager The Oriental Insurance Co. Ltd. Itwari Bazar, Raigarh (C.G.) (Non Applicant No. 3) 4. Smt. Rampyari^KHJhan W/o Santosh Chouhan, Age~@ryears, R/o Bhainapara.Tah. Kharsia, Distt. Raigarh (C.G.) MISCELANEOUS APPEAL U/S 173 OF THE MOTOR VEHICLE ACT. 1988 ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice Satish K. Aanihotri and Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal IC.} No.513 of2009 Appeljant Smt. Peelabai Chouhan versys Respondents Vijay Chouhan and others ^ Present: Ms. Sharmila Singhai, counsel for the appellant. Miscellaneous Appeal under Section 173 ofthe Motor Vehicles Act ORAL ORDER (Passed on 14th January, 2010) Per Prashant Kumar Mishra. J.: Heard on admission. 2. !n this appeal under Section 173 of the Motor Vehicles Act (henceforth 'the Act'), the appellant/claimant has called in question the legality, validity and property ofthe award dated 5-12-2008 passed by the Motor Accidents Claims Tribunat, Raigarh in Claim Case No.24/2006 rejecting her claim application. 3. The facts of the case, in short, are that on 8-7-2005, deceased Santosh Chouhan was riding motor cycle bearing registration No.CG 13E/4940 as pillion rider and was going to Kharsiya to purchase medidne. The said motor cycle belongs to respondent No.2, Bhaiyaram Chouhan, whojs the father ofdeceased Santosh Chouhan. At the time of accident, the motor cycle was being driven by 'respondent No.1, Vijay Chouhan. When the motor cycle reached near -f -2-- Dev Dabri Pond, respondent No.1 dashed against motor cyclebearing registration No.MP 55 B 261 1, as a result of which, Santosh Chouhan feil down, received head injuries and later on died jn course of treatment. The motor cycle on which the deceased was traveling was insured with respondent No.3, the Oriental Insurance Company Umited. 4. Respondent No.1, in his reply, stated that the deceased himself was driving the motor cycle. He was under intoxication and he died after falling down from the motor cycle. 5. The jnsurance company, in its reply, has also stated that the deceased was himself responsible for the accident and the vehicle was driven in breach of policy condltions. 6. The learned C!aims Tribunal has found that motor cycle bearing registration No.MP 55 B 261 1 was seized after about 2% months and that perusal of the evidence as well as the documents available in the case dlary of Crime No.299/2005 goes to show that the claim petition was moved on false grounds because it is not possible that respondent No.1 while drivjng the vehicle belonging to respondent No.2 would dash against his own motor cycle bearing segistration No.MP 55 B 2611. The Claims Tribunal has observed that it becomes more probable that the deceased himself was driving the vehjdeand his intoxicating state is proved by the merg report and that Rampyari, P.W.-1 has also admitted that the deceased was in the habit of v< consuming liquor: -5- I 7. In New India Assurance Company Llmsted vs. Sadanand Mukhiand others, 2009 AIR SCW 1372, the Hon'ble Supreme Court has held that when an insurance policy jn respect of a motor cycle was taken out by its owner and the son of jnsured while driving the motor cycte met with an accident resulting in his death, the insurer is not liable to pay compensation as the deceased does not come within purview of term "person" within Section 147 of the Actand that the insurer would be liable to cover risk of third party and not others who would not otherwise come within purview thereof. We may profitably quote paragraphs 14 and 15 ofthe said report hereunder: "14. !t is not a case where even Section 163-A of the Act was resorted to. Respondents filed an application under Section 166 of the Act. Only an act policy was taken jn respect of the motor vehicle. Submission of the learned counsel that being a two wheelers, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 ofthe Act, In our opinion, is not correct. 15. Contract of insurance of a motor vehicle is governed by the provisions of the Insurance Act. The terms of the policy as atso the quantum of the premium payable for insuring the vehicle in question depends not only upon the carrying capacity of the vehicle but also on the purpose for which the same was being used and the exteht of the risk covered thereby. By taking an 'act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act. The liabiJity of the insurer is either statutory or contractual. if it is contractual its liability extends to the risk covered by the policy of insurance. If additional risks are ^sought to be covered, additional premium has to be paid. Jf ^ ^- ^y.^:^ , '.^ f'€......^^ 1 J/ ^.sy ^•'&Bfc^ --^' -A the contention of the !earned counsel is to be accepted, then to a large extent, the provisions ofthe Insurance Act become otiose. By reason of such an interpretation the insurer would be liable to cover risk of not only a third party but also others whowould not otherwise come within the purview thereof. !t is one thing to say that the life is uncertain and the same is required to be covered, but it is another thing to saythat we must read a statute so as to grant relief to a person not contemplated by the Act. !t is not for the court, unless a statute is found to be unconstitutional, to consider the rationaJity thereof. Even otherwise the provisions of the Act read with the provisions of the insurance Act appear to be wholly rational." 8. in view of the law laid down by the Hon'ble Supreme Court and also in view of the fact that the learned Claims Tribunal has found the claim petition itself to be based on false grounds, we find that rejection of the cfaim petition by the Claims Tribunal does not suffer from any infirmity. 9. There is no ground for interference in this appeal, which fails and is hereby dismissed at the admissionstage. Sd/- Satish K.Agnihotri Judge Sd/- Prashant Kumar Mishra Judge Gopat ^