< \ / '^ swsioa IN THE HIGH OOURT OF JUDICATURE OF C.G. AT BILASPUE ,%'33 . M.A.C. N0. /2007 APPELLANT ^ 'f' / .^7 .^>^/b(' wy vj^t •s Ngnd Kumar Soni, son of Shri Bhoj Raa Seni, aged 55 years, resident of Bandhwapara way of Pahaldawa Talab Raipur, Police Station Purani Basti Raipur , District Raipur (Chhattisgarh) At Present Supervisor Zeela Sahkari Central Bank, Branch \ ©tahBra, District Raipur (C.G.), VERSUS 8ESPONDENTS _Qauri Devi ChauhaB, widow of ^ Gopal Singh, aged 47 years, Narsingh Oiouhan, son of late 7 Gopal Singh Chouhan, aged 27 years, (^-) ^TPradip Oiouhan, son of late 7 Gopal Chouhan, aged 23 years, ..(-4)(\/Ki.»- Priti Chpuhan, daughter of ^ late Gopal Singh Chouhan,aged 19 years, (5), Pankaj Chouhan, son of late >"" Gopal Singh Chaouhan, aged 16 years, a minor through gua- rdian mother Smt. Gauri Devi, Wd/0 Gopal Singh Chouhaa. p^,--,,^.-:--.^ (All are resident of Shankemager Ward NQ. 1 near Bawali; Mahasam- und, Tghsil Mahasamund, District Mahasamund, (Chhattisgarh). (APPLICANTS) MISCELLANEOUS APPEAL UNDER SECTICNT73 OF THE MOTOB VEHICLE ACT i088 "^. ii tgp^ s 'i ""^-y/ Y ^€^'^^v "^^^^ ^ H!GH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN, JJ. Appellant M.A. (C»No.233/2007 Nand KumarSoni Respondents Vs Gauri Devi Chauhan and others Present: Mr. JS Baraik, Advocate for the appellant. Mr. Shivendu Pandya, Advocate for respondents No. 1 to 4. ORDER (Oralt (19th July, 2011) Per I.IVI. Quddusj. J; 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the award of Chief Motor Accident Claims Tribunal, Mahasamund (in short "the Tribunal"), dated 9.1.2007 passed in Clam Case No. 67/06, by the appellant, who was driver of the vehicle - two-wheeler, insofar as the Tribunat has fastened the liability exclusively upon the appellant/driver to pay compensation to the pillion rider-deceased, who was owner ofthe two-wheeter. 2. Brief facts of the case are that on 28 December, 2005, in between 7.30 pm and 9.00 pm, the appellant was driving the motorcycle, Hero Honda bearing registration No. CG 06/8557, of deceased Gopal Singh Chauhan, Branch Manager of District Co-operative Centrai Bank, Chhura, who was sitting as a pillion rider. While they were returning from Pandka to Chhura after inspection of the funds of paddy purchase, the appeliant was driving the vehicle rashly and negligently and since he was drunk, he lost his control and caused the accident, as a result of which Gopal Singh Chauhan sustained injuries and the appellant left him there injured and returned to Chhura. However, when the witnesses brought Gopal Singh Chauhan to Govt. Hospital, Chhura for treatment, the doctors 2. ^ declared him brought dead. Report of the accidentwas lodged by Ramlal on 29.12.2005 at Police Station : Chhura, whereupon Cr.No.78/05 for the offence under Section 304A of the IPC was registered against the appellant and after completion of investigation, charge sheet was filed against him in the Court of Judicial Magi'strate First Class, Gariyaband. 3. At the time of accident, the deceased was 37 years and was working as Branch Manager in District Co-operative Central Bank. He was getting a salary of Rs.9,9141- per month and was an income tax payee. The claimants are widow and children ofthe deceased. They were fuliy dependent upon him. Therefore, the claimants being legal heirs of the deceased, fited a claim petition under Section 166 ofthe iVlotor Vehictes Act, 1988 (in short "the Act") claiming a total compensatlon of Rs.37,50,000/- for the death of Gopal Singh Chauhan. 4. However, learned Tribunal after hearing counsel for the parties, on a close scrutiny of the evidence led by them, by the impugned award granted a total compensation of Rs.6,79,688/- to the claimants, fastening the liability exclusively upon the appellant. 5. Heard learned counsel for the parties, perused the LCR as also the impugned award. 6. Learned counsel for the appellant has submitted that at the time of accident, the appellant was not driving the motorcycte in question and there is not even an iota of evidence in this regard, but the Tribunal has decided this issue against the appeltant and held that he was driving the motorcycle at the time of accident. 7. So far as above submission of feamed counsel for the appelfant is concerned, upon perusal of the LCR, we have found that there is a statement of eyewitness AW-2 Narsingh Chauhan, who has stated that on the date of incident he had seen the appellant driving the motorcycle in question and his father sitting as a pillion rider. He has been cross-examined at length and in his cross-examination also, he has stated that he had seen the appellant Nand Kumar Soni driving the motorcycle. Thus, from the above unrebutted HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ, Appellant IVI.A. fC) No.233/2007 Nand Kumar Soni Respondents Vs Gauri Devi Chauhan and others Present: Mr. JS Baraik, Advocate forthe appellant. Mr. Shivendu Pandya, Advocate for respondents No. 1 to 4. ORDER (Orali (19th July, 2011) Per I.M. QucMusi. J; 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the award of Chief Motor Accident Ctaims Tribunal, Mahasamund (in short "the Tribunal"), dated 9.1.2007 passed in Clam Case No. 67/06, by the appellant, who was driver of the vehicle - two-wheeler, insofar as the Tribunal has fastened the liability exclusively upon the appellanVdriver to paycompensation to the pillion rider-deceased, who was owner of the two-wheeler. 2. Brief facts of the case are that on 28 December, 2005, in between 7.30 pm and 9.00 pm, the appellant was driving the motorcycle, Hero Honda bearing registration No. CG 06/8557, of deceased Gopal Singh Chauhan, Branch Manager of District Co-operative Centrai Bank, Chhura, who was sitting as a pillion rider. While they were returning from Pandka to Chhura after inspection of the funds of paddy purehase, the appellant was driving the vehicle rashly and negligently and since he was drunk, he lost his control and caused the accident, as a result of which Gopal Singh Chauhan sustained injuries and the appellant lefl him there injured and returned to Chhura. However, when the witnesses brought Gopal Singh Chauhan to Govt. Hospital, Chhura for treatment, the doctors fir^ ~\ s &%•'<"%?> s ^s*'-^. '^^ig^ h ^r^ ^^EBSS^ evidence of eyewitness AW-2, it is evident that the appellant was driving the motorcycle in question on the date ofaccident. 8. The next contention of learned counsel for the appellant is that the appellant was not an emptoyee of the deceased-owner and as such, he cannot be treated as driver of the vehicle in question. 9. However, to our impression, a person who was driving the vehicle would be termed as a driver of the vehicle at the relevant time and would be thus wholly responsible for his rash and negligent driving. 10. Now the question for consideration before us is - whether the driver of a motorcycle can be held liable to pay compensation to the owner of the motorcycle, who was the pillion rider, in case of bodily injury, and to the dependants of the owner, who are claimants in case of death, where the motorcycle was not insured? 11.8efore proceeding further it is necessaryto peruse the provisions of Sections 165 and 168 ofthe Act, which are reproduced as under: "165. Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. ExpSanation. - For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and section 163A] (2)A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consist of two or more members, one of them shall be appointed as the Chairman thereof. (3)A person shal! not be qualified for appointment as a member of a Claims Tribunal unless he ^ 4? (a) is, or has been, a Judge of a High Court, or (b) is, or has been a District Judge, or (c)is qualified for appointment as a High Court Judge [or as a District Judge] (4)Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or speciat order, regulate the distribution of business among them." "168. Award of the Claims Tribunal. - (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunityof being heard, hold an enquiry into the claim or, as the case may be, each ofthe claims and, subject to the provisions ofsection 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by ail or any ofthem, as the case may be: Provided that where such applteation makes a claim for compensation under section 1'TO in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shail be disposed of in accordance with the provisions of Chapter X. (2) The Ctaims Tribunal shall arrange to deliver copies of the award to the parties concemed expeditiously and in any case within a period of fifteen days from the date of receipt of the award. (3)When an award Is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Ciaims Tribunai may direct." -s" ^ 12.A bare perusal of Section 165 of the Act shows that the Claims Tribunals have been conferred with the powers to adjudicate upon the ciaims for compensation in respect of accidents involving deaths of or bodily injuries to persons arising out of the use of motor vehicles. Section 168 provides that in making the award the Claims Tribunal shail specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. 13.Therefore, in a plain and natural way, the interpretation ofthe above would be that the driver can also be held liable to pay compensation exclusively in the cases where the insurer is not liable and due to rash and negligent driving of the driver, injury has been caused to the owner of the motor vehicle, resulting in permanent disability or death, as the case may be. Thus, the Claims Tribunal, in the instant case, has imposed the liability to pay compensation upon the appellant, who was driving the motorcycle/two-wheeter and the owner was sitting as a pillion rider on the same. 14.1n view of above, we are of the considered opinion that there is no illegality or infirmity in the impugned award warranting interference by this Court. Accordingty, the appeal fails and is hereby dismissed. 15.No order as to costs. 16.Certified copy as per rules. Sd/- ; iM-Quddusi ; Judge ; l^