HIGH COURT OF CHHATTISGARH, BILASPUR Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. J. CiyiLReyision No. 127 of 2007 ^ o New India Assurance Co. Ltd. Vs. Nafis Khan & others (And other connected C.R. No. 128/07; C.R. No. 129/07; M.A.(C) No. 1097/07; M.A.(C) No. 1109/07 & M.A.(C) No. 1128/07) JUDGMENT Postfor Judgment :/^/01/2010 Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR (SINGLE BENCH : HON'BLE SHRI SUNIL KUMAR SINHA. J.) Civil Revision No. 127 of 2007 APPLICANT Non-Applicant No.3 RESPONDENT No.1 Applicant RESPONDENT No.2 Non-Applicant No.1 RESPONDENT No.3 Non-Applicant No.2 New India Assurance Co. Ltd. Commercial Complex, Pandari, Raipur through Divisional Manager, New India Assurance Co. Ltd. Bilaspur Division, Opp. Rajiv Plaza, Bus Stand Road, Tehsil & District- Bilaspur (Chhattisgarh) Versus Nafis Khan, S/o Hafiz Khan, aged 04 years (Minor) through her mother Shamsunnisha W/o Hafiz Khan aged 30 years, R/o Chatidih, Rapta Chowk, Tehsil & Distt. Bilaspur (Chhattisgarh) Goldi @ Akhtar Khan, S/o Idukhan R/o Through Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Driver of Pick-up Van) Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Owner of Pick-up Van) Civil Revision No. 128 of2Q07 APPLICANT Non-Applicant No.3 RESPONDENT No.1 Applicant New India Assurance Co. Ltd. Commercial Complex, Pandari, Raipur through Divisional Manager, New India Assurance Co. Ltd. Bilaspur Division, Opp. Rajiv Plaza, Bus Stand Road, Tehsil & District- Bilaspur (Chhattisgarh) Versus Smt. Shamshu Nisha, W/o Hafiz Khan, aged 30 years R/o Chatidih, Rapta Chowk, Tehsit & Distt. Bilaspur (Chhattisgarh) C.R. No. 127/07: C.R. No. 128/07: C.R. No. 129/07: M.A/QNo. 1097/07: M.A.CQNo. 1109/07 & M.A.CQNo. 1128/07 RESPONDENT No.2 Non-Applicant No.1 RESPONDENT No.3 Non-Applicant No.2 Goldi @ Akhtar Khan, S/o Idukhan R/o Through Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Driver of Pick-up Van) Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Owner of Pick-up Van) ^ (V Civil Revision No. 129 of 2007 APPLICANT Non-Applicant No.3 RESPONDENT No.1 Applicant RESPONDENT No.2 Non-Applicant No.1 RESPONDENT No.3 Non-Applicant No.2 New India Assurance Co. Ltd. Commercial Complex, Pandari, Raipur through Divisional Manager, New India Assurance Co. Ltd. Bilaspur Division, Opp. Rajiv Plaza, Bus Stand Road, Tehsil & District- Bilaspur (Chhattisgarh) Versus Sameer Khan, S/o Hafiz Khan, aged 08 years (Minor) through her mother Shamsunnisha W/o Hafiz Khan aged 30 years, R/o Chatidih, Rapta Chowk, Tehsil & Distt. Bilaspur (Chhattisgarh) Goldi @ Akhtar Khan, S/o Idukhan R/o Through Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Driver of Pick-up Van) Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Owner of Pick-up Van) Misc. Appeal (C) No. 1097of 2007 APPLICANT Non-Applicant Np.3 New India Assurance Co. Ltd. through Divisional Manager, New India Assurance Co. Ltd. Bilaspur Division, Opp. Rajiv Plaza, Bus Stand Road, Tehsil & District- Bilaspur (Chhattisgarh) Versus C.R. No. 127/07; C.R. No. 128/07: C.R. No. 129/07; M.A.CQ No. 1097/07: M.A.CQ No. 1109/07 & M.A.CC) No. 1 128/07 RESPONDENT No.1 Applicant RESPONDENT No.2 Non-Applicant No.1 RESPONDENT No.3 Non-ApplicantNo.2 Smt. Mehrun Nisha, W/o Late Hamid Khan, aged 44 years, R/o Chatidih, Rapta Chowk, Tehsil & Distt. Bilaspur (Chhattisgarh) Goldi @ Akhtar Khan, S/o Idukhan R/o Through Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Driver of Pick-up Van) Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapqra Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Owner of Pick-up Van) Misc. Appeal (0 No. 1109of2007 APPLICANT Non-Applicant No.3 RESPONDENT No.1 Applicant RESPONDENT No.2 Non-Applicant No.1 RESPONDENT No.3 Non-Applicant No.2 New India Assurance Co. Ltd. Commerciat Complex, Pandari, Raipur through Divisional Manager, New India Assurance Co. Ltd. Bilaspur Division, Opp. Rajiv Plaza, Bus Stand Road, Tehsil & District- Bjlaspur (Chhattisgarh) Versus Smt. Shahnaz, W/o Sheikh Israil, Aged 40 years, R/o Chatidih, Rapta Chowk, ' Tehsil & Distt. Bilaspur (Chhattisgarh) Gotdi @ Akhtar Khan, S/o Idukhan R/o Through Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Driver of Pick-up Van) Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Owner of Pick-up Van) And Misc. Appeal (0 No. 1128 of2007 APPLICANT Non-Applicant No.3 New India Assurance Co. Ltd. Commercial Complex, Pandari, Raipur through Divisional Manager, New India Assurance Co. Ltd. (A ^ ,,^^¥^ ^^^^ I 1 ""^ M^ C.R. No. 127/07: C.R. No. 128/07: C.R. No. 129/07: M.A.CQ No. 1097/07; M.A.CC) No. 1109/07 & M.A.(C)^CL 1128/07 Bilaspur Division, Opp. Rajiv Plaza, Bus Stand Road, Tehsil & District- Bilaspur (Chhattisgarh) RESPONDENT No.1 Applicant RESPONDENT No.2 Non-Applicant No.1 RESPONDENT No.3 Non-Applicant No.2 Versus Kamrun Nisha, W/o Sheikh Kadir, aged 45 years, R/o Chatidih, Rapta Chowk, Tehsit & Distt. Bilaspur (Chhattisgarh) Goldi @ Akhtar Khan, S/o Idukhan R/o Through Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Driver of Pick-up Van) Balmukund Patel, S/o Komal Prasad Patel, Near Jagdapara Nala, Melapara, Chatidih, Bilaspur, Tehsil & District Bilaspur (Owner of Pick-up Van) ^ Appearance: Mr. Sourabh Sharma, Advocate for the petitioner/appellant/ Insurance Company. Mr. Rakesh Sahu, Advocate for the Claimant(s)/respondent(s) No.1. Mr. Dharmesh Shrivastava, Advoc^te for respondent(s) 2 & 3/driver and owner.. JUDGMENT (^.01.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) These appeals/revision petitions have been filed by the Insurance Company against the award(s) dated 30.3.2007 & 2.4.2007 passed by the Second Additional Motor Accident Claims Tribunal, Bilaspur (C.G.) in six different Claim Cases arising out of a common accident, whereby the Insurance Company has been held liabie for payment of compensation to the Claimant(s)/respondent(s) No. 1 in the following manner: ,-'-^^-^ .rt" "^ Si '»^ J 'Y^- '\ ^ "^ C.R. No. 127/07: C.R. No. 128/07; C.R. No. 129/07: M.A.fQ No. 1097/07; M.A.CC) No. 1109/07 & M.A.fC) No. 1 128/07 ^ < (2) The facts, briefly stated, are as under:- Claimant(s)/respondent(s) No.1 herein filed Claim Petitions u/s 166 of the Motor vehicles Act claiming compensation on account of personal injuries sustained by them in the motor accident which took placeon 29.3.2006 when Pick-Up Van bearing registration No. C.G.- 10-A/9651, on which, they were traveling as passengers, met withan accident on account of rash and negligent driving of the said vehicle by its driver. The Claimant(s) pleaded that on the fateful day, the said Pick-Up Van was called by them for going to Juna Ratanpur for submitting Chadar on Babasaheb Dargahah, and when they were traveling in the said vehicle, the accident took place. They very specifically pleaded that since they had familiar relations with the owner of the vehicle, therefore, the vehicle was called and was being used for the said purpose. The driver filed his written statement(s) and denied the contentions of the claimant(s). He pleaded that when he was returning from Ratanpur to Bilaspur, some persons (ladies, gents & children) tried 'to stop his vehicle, due to which, the vehicle turn- turtled. Sl. No. Revision/Appeal number Claim Case number Award dated Awarded amountfts. 1. C.R. No. 127/07 40/2006 30.7.2007 3,000/- 2. C.R. No. 128/07 42/2006 30.7.2007 3,000/- 3. C.R. No.129/07 41/2006 30.7.2007 3,000/- 4. M.A.(C)No. 1097/07 78/2006 30.7.2007 25,000/- 5. M.A.(C)No,J 109/07 79/2006 2.4.2007 80,000/- 6. M.A.(C)No.1128/07 39/2006 30.7.2007 25,000/- -m C.R. No. 127/07: C.R. No. 128/07: C.R. No. 129/07; MA.fQNo. 1097/07: M.A.fQNo. 1109/07 &M.A/QNo. 1128/07 ^o The owner also filed his written statement(s) and denied the contentions of the claimant(s). The Insurance Company also filed its written statement(s). It admitted the plea that claimant(s) were traveling in the said vehicle. It very specifically pleaded that only driver and helper were allowed to sit in the vehicle, therefore, the vehicle was being used in breach of policy condition as it was being used for carrying passengers. The learned CIaims Tribunal held that the vehicle was insured on the date of the accident i.e. 29.3.2006 as the insurance policy was valid from 1.11.2005 to 31.10.2006. It further held that the driver was having a valid driving license to drive the vehicle. Without considering the plea raised by the Insurance Company regarding limitation of the use of the vehicle and that the same was being used for carrying passengers, the Tribunal .held that the driver, owner and insurer were jointly and severally tiable to pay compensation to the claimant(s) and the aforesaid amount(s) were awarded to the claimant(s) of each case on account of sustaining personal injuries by them. (3) Mr. Sourabh Sharma, learned counsel appearing on behalf of the petitioners/appellants/lnsurance Company, argued that it was a clear case of breach of policy condition. The vehicle was a goods carrying commercial vehicte. It was an admitted case of the claimant(s) that they were traveling as gratuitous passengers in the goods carrying vehicle, therefore, the Tribunal erred in taw in holding that the Insurance Company was also liable to pay compensation. He relied on the judgments of the Supreme Court rendered in the matters of New India Assurance Co. Ltd. -Vs- Vedwati & Ors.. 2007 AIR SCW 1505 & National Insurance Co. Ltd. -Vs- Rattani & Ors.. 2009 AIR SCW992. / ^r 7 C.R. No. 127/07: C.R. No. 128/07; C.R. No. 129/07: M.A/C) No. 1097/07: M.A.fC) No. 1109/07 & M.A/C) No. 1 128/07 ^ (4) On the other hand, learned counsel for the respondents opposed these arguments and supported the award(s) passed by the Claims Tribunal. (5) We have heard the learned counsel for the parties at length. (6) In New India Assurance Co. Ltd. -Vs- Vedwati & Ors.. 2007 AIR SCW 1505, the Supreme Court held vide Para-13 & 14 as under:- "13. The difference in the language of "goods vehicle" as appear in theold Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under Workmen's Compensation Act, 1923 (in short "WC Act"). There is no reference to any passenger in "goods carriage". 14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods carriage and the insurer would have no liability therefor." (7) In National Insurance Co. Ltd. -Vs- Rattani & Ors.. 2009 AIR SCW 992, the Supreme Court held that when the members of the marriage party were traveling in a goods vehicle, the Insurance Company cannot be made liablefor compensation. '^Ss^' '^t^ 8 C.R. No. 127/07: C.R. No. 128/07; C.R. No. 129/07; M.A/C) No. 1097/07: M.A.fQ No. 1109/07 & M.A.fC) No. 1 128/07 [A1 Therefore, it is a settled position that if the passengers were traveling on a goods vehicle and accident took ptace, then the Insurance Company would not be liable to pay compensation to the victims who were traveling as passengers in the said vehicle or in case of death to the Lrs. of the passengers. (8) In the present case, the insurance policy has been proved as h Ex(bit-D/1 in Claim Case No. 42/2006. The contents of the policy would show that the vehicle was a "Goods Carrying Commercial Vehicle (Open)" and a premium of Rs.3,109/- was paid for Own Damage (OD) and a premium of Rs.900/- was paid for Third Party liability. Apart from the above, a premium of Rs.100/- was paid for Compulsory .PA to Owner Cum Driver and a premium of Rs.2^'was also paid for Employee under WC Act. Therefore, the Tribunal erred in law in not considering this aspect of the matter. The Tribunal ought to have considered that it was a goods carrying commercial vehicle and carrying passengers on the said vehicle was a clear breach of policy condition, therefore, the Insurance Company was not liable to pay compensation to the occupants of the vehicle who were traveling as passengers. (9) So far as burden of proof of breach of policy condition is concerned, admittedly it lies on the Insurance Company. It was held in Rattani's case (supra) that the burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. The Supreme Court held that if the facts are admitted or, if otherwise, sufficient m'aterials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that ^;s^... /y^ ~^. ' ^ ^. -^/ 9 C.R. No. 127/07; C.R. No. 128/07; C.R. No. 129/07; M.A.CC) No. 1097/07: M.A.fQ No. 1109/07 & M.A.CC) No. 1 128/07 ^ the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. The Supreme Court further held that the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the party concerned, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose. (10) In the present case, the claimant(s) themselves have pleaded that they were traveling on the said vehicle for going to Juna Ratanpur. This fact was admitted by the Insurance Company in the written statements. This also finds place in the copy of the First Information Report (F.I.R. annexed with the records of Claim Case No. 40/2006). Though a contrary plea was raised by the driver of the vehicle by filing his written statements pleading that the claimant(s) were the pedestrians (third party), but no evidence was led by him. Even the driver himself did not appear to lead his evidence before the Tribunal. Therefore, it was proved on record that the goods vehicle was being used for carrying passengers and in such situation the Insurance Company would not be liable to pay compensation. (11) For the foregoing reasons, the appeals/revision petitions filed by Insurance Company.are allowed. The impugned award(s) passed against the Insurance Company are set-aside. The Insurance Company is exonerated from the liability of payment of compensation to the ^'^—^ "\ "-^.'^, •^m^^ \ -. v---:-"..- 10 C.R. No. 127/07: C.R. No. 128/07: C.R. No. 129/07; M.A.CQNo. 1097/07; M.A.CQNo. 1109/07 &M.A.fQNo. 1128/07 <; <9 claimant(s)/respondent(s) No.1. The owner and driver would be jointly and severally liable to pay compensation to the claimant(s)/respondent(s) No.1. (12) The appeals/revision petitions are allowed to the extent indicated above. (13) There shall be no orders as to cost(s). Sd/- Sunil Kumar Sinha judge vatti