IN THE HON'BLE HIGH COURT OF CHHATTLSGARH AT BILASPUR APPELLANT M.A.(C)No.- /^c-^/2009 •|gif.^^n ^^^^f- THE ORIENTAL INSURANCE COMPANY LTD., THROUGH DIVISIONAL MANAGER, DIVISION N0. ONE, JAIL ROAD, RAIPUR (CHHATTISHGARH) (INSURER OF TRUCK N0. MH-32-B/2180) yrs- RESPONDENTS/CLAIMANTS:- l./r SHAD BAI AGE 34 YRS. ^••^ WD/0 KAMESHWAR, ^v' ^•^ :<'' f. •^ ^;^ ^ •? \^ ^ ,^! .^"' 2.^ KU. AASKUMARI D/0 KAMESHWAR AGE 14 YRS., 3. ^ SANTOSH S/0 KAMESHWAR, AGE 12 YRS., 4. ^ KU. PURNIMA D/0 KAMLSHWAR, AGE 6 YRS., 5. f KU. OM D/0 KAMESHWAR, AGE ONE AND HALF YRS., CLAIMANTS N0.-2,3,4,5 ARE MINOR THROUGH GUARDIAN MOTHER SHAD BAI, RESIDENT & POST BHANDARPURI DISTRICT- RAIPUR (CHHATTISHGARH) RESPONDENTS/NON-APPLICANTS:- 6. ^ NIRANJAN SHANKAR SHARMA, RESIDENT- VAISHALI NAGAR SEWA GRAM ROAD, VARDHA, TAHSIL & DISTRICT- VARDHA (MAHARASHTRA) (OWNER OF TRUCK N0. MH-32 B/2180) APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 ^ ^l 1 '^S^ih'.j ^'%. ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (Q No. 1457 of 2009 APPELLANT / RBSPONI^ENTS The Oriental Insurance Company Limited. VERSUS Shad Bai and others. (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT.1988) DB:-HON. SHRI N.K. AGARWAL, & HON. SHRI G. MINHAJUDDIN, JJ. PRESENT:- Shri Sudhir Agrawal, counsel for the appellant. Shri S.C. Verma, counsel for respondents No.l to 5. Shri Sushobhit Singh, counsel for respondent No.6. ORAL ORDER (16-08-2011) PerN.K.Aearwal, J. 1. This is an insurer's appeal against the award dated 31.07.2009 passed in claim case No. 53/2007 by the 7^ Additional Motor Accidents Claims Tribunal, Raipur. 2. As against compensation of Rs.4,47,000/- claimed by the widow and minor children of deceased Kameshwar Satnami by filing claim application under Section 163A of the Motor Vehicles Act (henceforth 'the Act'), the learned Tribunal has awarded a total compensation of Rs.3,03,000/- along with interest @ 6% per annum from the date of claim application till its actual payment, holding the appellant/insurance company liable for payment of compensation. 3. The learned Tribunal, on a close scrutiny of the evidence led, held: the deceased died. on account of injuries sustained in the accident on 03.03.2007 due to rash and negligent driving by the driver of the offending vehicle Truck bearing registration No. M.H. 32/B-2180; the appellant ;;^;.r.';- insurance company has failed to prove violation of policy conditions; assessed and awarded the aforesaid amount compensation to the claimants for the death of deceased - Kameshwar Satnami. 4. By referring the document (Ex.D.l), which is insurance policy annexed with the record, Shri Su,dhir Agrawal, learned counsel for the appellant/insurance company would submit: the offending vehicle is a goods carriage vehicle within the meaning of the Act; on the date of accident, some persons were sitting in the offending vehicle as gratuitous passengers, which is in violation of policy conditions; as per insurance policy, the risk was covered only of owner-cum-driver and paid driver: the insurance company is not statutorily liable to cover the risk of such passenger sitting in a goods carriage vehicle; moreover, the insurance company has also not undertaken such risk by entering into special contract with the appellant and by taking extra premium therefor; before the learned Tribunal the appellant/insurance company led evidence in that behalf and despite that the Tribunal has erred in fastening liability of payment of compensation upon the appellant. 5. On the other hand, Shri S.C.Verma, learned counsel for respondents No.l to 5 and Shri Sushobhit Singh, learned counsel appearing for respondent No.7 would submit: in the facts and circumstances of the present case, the learned Tribunal was justified in fastening liability to pay compensation on the appellant/insurance company and the award impugned needs no interference. 6. We have heard leamed counsel appearing for the parties and perused the record of the Tribunal including award impugned. 4^ 7. A bare perusal claim petition filed by the respondents No.l to 5/claimants would reveal: the deceased Kameshwar was sitting in the offending vehicle Truck as fair paying passenger. The above averment of claim petition was not specifically denied by Niranjan Shankar Sharma i.e. the owner of the offending vehicle in his written statement nor it has been stated that deceased Kameshwar was working as Coolie in his truck. Further, Shad Bai (A.W.l) has deposed in her statement para -11 "it is true, one day before the accident all persons were going from Raipur to Maharashtra and after alighting the train, were boarded in the Truck and have also paid the fair. Her husband was also with them.?? 8. In the light of above, we have no doubt in our mind that deceased was sitting in the said Truck as fair paying passenger. 9. We have perused the policy of insurance Ex.D.1. The said policy covers the risk of third party, paid driver and owner-cum-driver. It does not cover the risk of fair paying passenger sitting in the said vehicle. In the absence of specific contract, the insurance company is not statutorily liable to cover the risk of fair paying passenger sitting in the goods carriage vehicle under Section 147 ofthe Act. 10. The Supreme Court in case of National Insurance Co. Ltd. v. Cholleti Bharatamma and Others, (2008) 1 SCC 423, has held in its judgment that provisions of the Motor Vehicles Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, and the insurers would not be liable therefor. The words "injury to any person" in Section v 147(l)(b) would only mean ^ third party and not a passenger travelling in a goods carriage whether gratuitous or otherwise. 11. In view of the above facts and circumstances of the case and in view of the dictum of Hon'ble Supreme Court in the above referred case, the learned Tribunal went wrong in fastening the liability upon the appellant /Insurance Company and the same flnding deser^es to be set aside. 12. For the reasons aforementioned, the impugned award in so far as fastening liability on the appellant/insurance company to pay compensation is concerned is set aside. Rest of the conditions shall remain intact. The respondents No.l to 5/claimants are free to execute the award against the owner of the vehicle. For the amount already deposited by the appellant/insurance company and disbursed to the claimants, the appellant/insurance company is entitled to recover the same from the owner of the vehicle by filing execution petition before the Tribunal. 13. The appeal is accordingly allowed. 14. However, there shall be no order as to costs. SdA i N.K. Agrawal I Tudge r