IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILAPSUR Misc. Appeal {C} No. 186 /2011 ^9 ^^,^ J^.^^r-^fe ^,:. ; •:. ••.'/-'.' •'^ -;: APPELLANT Bajaj Allianz General Insurance Company Limited, Registered Office:-G.E. Plaza, Airport Road, Yerawada Pune (MS) 411006 Branch office Bhatti Road, Ambikapur Thana & Tahsil Ambikapur District Surguja (C.G.) Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur (C.G.) (Insurer) RESPONDENTS VERSUS 1) Patel Ram Paikra S/o Budhauram Paikara, aged about 36 years, 2) Smt. Vimla Devi W/o Patel Ram Paikra aged about 34 years, Both Caste- I&inwar, R/o Village Bandna, P.0. Kot, Thana Sitapur, District Surguja (C.G.) (CLAIMANTS) 3) Rasiya Yadav S/o Ramnath Yadav, aged about 23 years, Caste- Ahir, R/o Villagc Seepat, Darribhata, Thana Secpat, Disfrict Bilaspur (C.G.) (DRIVER) 4) Surendra Bareth S/o Jhagru Bareth, aged about 50 years, R/o Village Pattharipara, C.S.E.B. Colony, Korba, Tahsil and District Korba (C.G.) (OWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fQNo.l86of2011 f APPELLANT RESPONDENTS Bajaj Allianz General Insurance Company Limited VERSUS Patel Ram. Paikra & others (Misc. Appeal under Section 173 oftheMotorVehicl©s_Act) SB: Hon'ble Shri Justice N. K. Agarwat Present : Shri Sachin Singh Rajput, Advocate for the appellant. t} ORAL ORDER (Passed 01122.03.2011) 1. Heard on admission. 2. This is insurer's appeal against the award dated 22.09.2010, passed by the IIIrd Additional Motor Accident Claims Tribunal, Ambikapur, Distt. Surguja, in claim case No. 64/2009, whereby an amount ofRs. l,62,000/-has been awarded to the claimants along with interest @ 6 percent per annum from the date offiling of application till its payment, holding the appellant/insurance company liable for its payment. 3, Brieffacts ofthe case are that: on 13.11.2008, Hemsagar, aged about 12 years (since deceased) was sitting in the Cabin ofTruck bearing registration No. CG-12-C-1815, tfae said Truck met with an accident, as a result ofwhich he succumbed to the injiiries sustained in the said accident. I, 4. The appellant/insurance company filed its written statement. In paras 11,15,22 and 29 of written statement, the appellant insurance company took specific plea that deceased along with other children was sitting in the Tmck as fare paying passenger; the policy did not cover such risk nor the insumnce company is statutorily liable to cover such risk, and therefore, the liability of payment of compensation cannot be fastened upon the insurance company. 5. The Tribunal, on appreciation of evidence led, materia! placed and submissions made, awarded Rs. 1,62,000/- as compensation along with interest @ 6 percent per annum from the date of application till its payment, holding t^e appellant/inswance company liable for its payment inter alia recording finding: deceased was gratiiitous passenger, insurance company had undertaken risk of gratuitoiis passenger by entering into special contract and by charging premium therefor. 6. Shri SS Rajput, leamed counsel appearing for the appellant/insurance company would siibmit : the vehicle is not meant for carrying passengers; deceased was tmveling in the goods vehicle as fare paying passenger; even assuming deceased was gratuitous passenger, was sitting in the vehicle in violation of IMT-37, inasmuch as, deceased was neither an employee nor a person who is charterer or representative ofthe charterer ofthe contract nor was a person directly connected with the joumey in one fomi or other being carried in or upon or entering or ~r- f mou^ng or alighting&m^^^^^^^ scheduleofthepolicy. ^ 7. I have heard the coimsel appearing for the a^ orderimpugnedandrecordsQftlietribunal. 8. The only deferice taken by the itisurance compaay m its written statement as well as m the evidence led before the Tribunal was that deceased being fare paying passenger was not covered under the policy and the msurance company is not liable for p^yment of Gompensation. Admittedly, policy covers the risk of gratuitous passenger. Deceased was sitting in the Trock as gratuitous passengef is also not in dispute. The insumnce company had not taken defence in its written statement thsft'insurance company is not liable for payment ofcompensation on account ofviolation of IMT-37 nor led any evidence on it. In view ofabove, I do not find any substance in the above plea raised by counsel for appeUanl/insurancecompany. 9. The insumnce company did not press its application filed under Seetion 170 of MV Act before the Tnbunal, therefore, same is . deemed to be dismissed by the Tribunal. Even otherwise, the Mnbunt ofawanl is just and reasonable. 10. For thereasons mentkmed hereinabove, the appeal being deyoid of substance is liable to be and is hereby dismissed sutnmarily. No order asto costs. Sahu _ SdA JV-KAgrawaJ Judge :il