BEFORE THB HIGH COURT OF CHHATTISGARH AT BILASPUR M. A (C) NOI.050/72009 APPELLANT (OWNER) Sanjay Agrawal S/o Shrikishan Agrawal, R/o Salhewara, Police Station - Salhewara, Tehsil Chhuikhadan, District Rajnandgaon (C.G.) Ifi i^' RESPONDENTS (CLAIMANTSl VERSUS 1. ^'"l ^^ ^•;-^& ^..-••"" DRIVER INSURANCB COMPANY 4. 5. Ghasiya, S/o Shankar Gond, Aged about 50 years, 2. Sant, S/o, Ghasiya Gond, Aged about 28 years, 3. Santosh, S/o, Ghasiya Gond, Aged about 25 years, All Residents of Village - Salhewara, P.S. Salhewara, Tehsil, Chhuikhadan, District- Rajnandgaon (C.G.) Mahesh kuniar, S/o Itwari Gond, Aged about 28 years R/o Jhoripara, Police Station Salhewara, Tehsil - Chhuikhadan, District Rajnandgaon (C.G.) The Oriental Insurance Company Ltd., Kamthee Line, Rajnandgaon, District- Rajnandgaon (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri JusticePrashant Kumar Mishra Miscellaneous Appeal (C.) No.1049 of 2009 Miscellaneous Appeal (C.) No.1050 of 2009 Miscellaneous Appeal (C.) No.1051 of 2009 Miscellaneous Appeal (C.) No.1120 of 2009 MiscellaneousADpeaKC.) No.1122 of 2009 Miscellaneous Appeal (C.) No.1136 of 2009 ORDER Postfor 23-7-2010 Sd/- Prashant Kumar Mishra Judge ^^s^^%, '•s ^lV9 / ,.-^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Appellant Miscellaneous Appeal (C.) No.1049 of2009 Sanj'ay Agrawal versus Respondents Tijiyabai and others Present: Ms. Far^h Minhaj, counsel for the appellant. Shri Abhishek Sharma, counsel for respondent No.1. Smt. Chitra Shrivastava, counsel for respondent No.3. Miscellaneous Appeal under Section 173 of the Motor Vehicles Act Appellant Miscellaneous Appeal (C.) No.1050 of 2009 Sanjay Agrawal versus Respondents Ghasiya and others Present: Ms. Farah Minhaj, counsel for the appellant. Shri Abhishek Sharma, counsel for respondents No.1 to 3. Smt. Chitra Shrivastava, counsel for respondent No.5. Miscellaneous AppeaLunder Section 173 of the Motor Vehicles Act Miscellaneous Appeal (C.) No.1051 of 2009 Appellant Sanjay Agrawal versus Respondents Budhuram and others Present: Ms. Farah Minhaj, counsel for the appellant. Shri Abhishek Sharma, counsel for respondents No.1 and 2. Smt. Chitra Shrivastava, counsel for respondent No.3. Miscellaneous Appeajjjnder Section 173 of the Motor Vehicles Act ^"" .^^^ 1 '^^^, "'w '%,. ^.,,-.-,,^7> Appellant Miscellaneous Appeal (C.l No.1120 of 2009 Sanjay Agrawal versus Respondents Kavitabai and others Present: Ms. Farah Minhaj, counsel for the appellant. Shri Abhishek Sharma, counsel for respondent No.1. Smt. Chitra Shrivastava, counsel for respondent No.3. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act Appellant Miscellaneous Appeal (C.l No.1122 of 2009 Sanjay Agrawal versus Respondents Parvati and others Present: Ms. Farah Minhaj, counsel for the appellant. Shri Abhishek Sharma, counsel for respondent No.1. Smt. Chitra Shrivastava, counsel for respondent No.3. Miscellaneous Appeal under Section 173 ofthe Motor Vehicles Act Appellant Miscellaneous Appeal (C.) No.1136 of 2009 Sanjay Agrawal versus Respondents Minor Chandrika and others Present: Ms. Farah Minhaj, counsel for the appellant. Shri Abhishek Sharma, counsel for respondent No.1. Smt. Chitra Shrivastava, counsel for respondent No.3. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act ^^^^^-——^^ ORDER (Passedon ^Julv.2010) By this common order Miscellaneous Appeals (C.) No.1049/2009, 1050/2009, 1051/2009, 1120/2009, 1122/2009 and 1136/2009 are disposed of as they were heard analogously for final disposal with the consent of the parties. The main order is passed in Miscellaneous Appeal (C.) No. 1049/2009. 2. All the abovementioned miscellaneous appeals arise out of their respective claim cases as mentioned hereinbelow: 3. All the claim cases have been disposed of by the Claims Tribunal by a common award dated 28-3-2009. 4. Before the Claims Tribunal, 9 claim applications were submitted. Out of the said 9 claim cases, the insurance company has been held to be liable for payment of compensation in Claim Cases No.67/2007 and 24/2008 on the ground thatthe injured claimants of the said claim cases were third parties. Similarly, in Claim Case No.71/2007 also, the insurance company was held liable on the ground that the claimant was a conductor in the vehicle and the in the insurance policy, premium was paid for the employee and as such the conductor was ^ / covered under the policy. SI.No. Misc. Appeal (C.) No. Claim Case No. 1. Misc. Appeal (C.) No. 1049/2009 Claim Case No.62/2007 2. Misc. Appeal (C.) No. 1050/2009 Claim Case No.43/2007 3. Misc. Appeal (C.) No.1051/2009 Claim Case No.42/2007 4. Misc. Appeal (C.) No.1120/2009 Claim Case No.22/2008 5. Misc.Appeal (C.) No. 1122/2009 Claim Case No.69/2007 6. Misc. Appeal (C.) No.1136/2009 Claim Case No.68/2007 ^•^>'. 5. In the claim cases, which have given rise to the present 6 miscellaneous appeals by the owner, the insurance company has been exonerated on the ground that the deceased/injured persons were labourers/gratuitous passengers traveling in goods vehicle, therefore, the insurance company is not liable to indemnify the award. 6. The respondent Mahesh Kumar was driving Swaraj Mazda vehicle bearing No.CGOS/B-0149 owned by the appellant and insured with the respondenVOriental Insurance Company Limited. On 11-5- 2007, these women labourers boarded the vehicle which was going to load soil. On account of rash and negligent driving by Mahesh Kumar, it dashed against a bicycle on which two children were riding. The vehicle turned turtle and out of the six women labourers, Vachanbai and Sawanbai died and the remaining four labourers suffered injuries. 7. After the enquiry, the Claims Tribunal has awarded the following amount as compensation in each of the claim cases: 8. Since in the two claim cases preferred by the dependents of the two deceased women labourers and in four claim cases preferred by SL No. Claim Case No. Awarded Amount CorresDondina Miscellaneous Appeal (C.) (Rs.) No. 1. 62/2007 82,599 1049/2009 2. 43/2007 1,32,500 1050/2009 3. 42/2007 1,12,127 1051/2009 4. 22/2008 20,031 1120/2009 5. 69/2007 13,943 1122/2009 6. 68/2007 15,203 1136/2009 7. 67/2007 97,604 No Appeal 8. 71/2007 15,912 No Appeal 9. 24/2008 1,24,411 No Appeal ^^'''^ %. / ls:Z \ ^vs'%! '^:y ^' the injured women labourers, the insurance company has been exonerated from the liability of payment of compensation, the owner has preferred these six appeals on the ground that the Claims Tribunal should have held that the labourers were the employees of the owner/appellant and that since the employees were covered in the policy, the insurance company is liable to indemnify the award. 9. Learned counsel for the appellant/owner submits that the initial burden to prove breach of the policy of insurance was on the insurance company, however, the insurance company has not led any evidence to establish the breach. Learned counsel further submits that in all the cases, the claimants have stated that the deceased/injured persons were employed as Hamal by the owner of the vehicle. Learned counsel forthe appellant has placed reliance on thejudgment rendered in Royal Sundaram Alliance Insurance Company vs. Lakhan Lal and others, 2008 (1) CGU 204, Smt. Rambati Madiya and others vs. Budanti @ Danteshar Rao and others, 2008 (3) CGLJ 413 (DB) and Bajaj Allianz General Insurance Co. Ltd. vs. Smt. Santosh Chauhan andothers, AIR 2010 (NOC)6 (H.P.). 10. Per contra, learned counsel for the respondent/insurance company has submitted that the insurance company has been rightly absolved of its liability from payment of compensation as it was clearly established that the deceased/injured women were traveling as gratuitous passengers in a goods vehicle. Learned counsel submits that the policy of insurance covered only three persons, i.e., the owner, the driver and the conductor of the vehicle and that no extra premium was paid. Reliance is placed on the judgment of the Hon'ble Supreme c^y Court in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others, AIR 2008 SC 484, Smt. Thokchom Ongoi Sangeeta and another vs. Oriental Insurance Co. Ltd. and others, AIR 2008 SC 245, Oriental Insurance Co. Ltd. vs. Brij Mohan and others, (2007) 7 SCC 56, United India Insurance Company Limited vs. Serjerao and others, (2008) 7 SCC 425 and Oriental Insurance Company Limitedvs. Sudhakaran K.V. and others, (2008) 7 SCC 428. 11. On perusal of the certificate of registration issued by the registering authority for the subject vehicle, it would be found that the class ofthe vehicle is mentioned as LGV, i.e., Light Goods Vehicle, the seating capacity of the vehicle is 1+2, i.e., one driver plus two other persons. In the insurance policy also, the seating capacity is mentioned as three. In course of the argument, when a specific query was raised by the Court as to how many persons would be covered/insured for the extra premiym of Rs.75/-, learned counsel for the insurance company fairly stated that it would cover three employees including the driver as Rs.25/- is charged as extra premium for one person. Thus, from the insurance policy, it is discernible that for the personal accident of owner Rs.100/- was paid and for the legal liability of the employee/driver Rs.75/- was paid, meaning thereby that with the seating capacity of three, the driver and two other persons/employees were covered in the policy by payment of premium of Rs.75/-. This is also clear from the endorsement regarding limitations mentioned at the bottom of the policy, which says that the policy does not cover passengers in vehicles except employees not ^ ^%?^- ^ ^ ^^^y ^ exceeding the number permitted in registration document and coming under purview ofthe Workmen's Compensation Act, 1923. 12. In the judgment relied on by learned counsel for the appellant/owner in Royal Sundaram Alliance Insurance Company vs. Lakhan Lal and others (supra), this Court has held that when the deceased was sitting in the trailer at the time of accident involving the tractor and trailer insured for agricultural purposes, the risk of the deceased was covered as the deceased was employed by the owner of the tractor and trailer as helper. In the said case, it was also held by this Court that statement made in the claim petition, if not denied specifically or by necessary implication shall be taken to be admitted except as against a person under disability. In Smt. Rambati Madiya and others vs. Budanti @ Danteshar Rao and others (supra), a Division Bench of this Court has held that when the policy of insurance was obtained for seven persons, the insurance company would be liable to indemnify the award to the extent of those persons who were traveling as labourers in the offending goods vehicle as the deceased persons were traveling in the vehicle as Hamal and were engaged by the owner for loading and unloading of stones. 13. Referring to the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others (supra), learned counsel for the respondenVinsurance company submits that the deceased/injured persons in the offending goods vehicle were traveling as passengers and not as employees of the ^ owner, therefore, whether the passengers were gratuitous or otherwise, are not covered in the policy of insurance. Learned counsel for the insurance company has also relied on United India Insurance Company Limited vs. Serjerao and others (supra) and Oriental Insurance Company Limited vs. Sudhakaran K.V. and others (supra), both for the proposition that a gratuitous passenger traveling in the goods vehicle is not covered in the policy of insurance. For similar proposition, learned counsel relied upon New India Assurance Co. Ltd. vs. Gangawa Basavaneppa Sunagar and another, 2007 ACJ 1915 (Karnataka) and United India Insurance Co. Ltd. vs. Kamodi Bai and others, 2007 ACJ 2031. Further reliance is placed on the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Prema Devi and others, (2008) 5 SCC 403 for similar proposition that insurance company would not be liable to indemnify the award for death or bodily injury traveling in goods carriage. 14. In view of the certificate of registration and the poticy of insurance of the offending goods vehicle covering three employees including the driver, to decide as to whether the insurance company would be liable to indemnify the award, it is to be determined as to whether the deceased/injured persons were traveling as the employees of the owner or were passengers traveling in a goods vehicle. 15. In paragraph 44 ofthe impugned award, learned Claims Tribunal has recorded a finding that in view of the statement made by Ghasiya, Budhuram, who are the dependents of deceased persons Vachanbai and Sawanbai; and the statement of injured claimants Kavitabai, 1 •5 Vf^ ^: \\ '^ / ..-':' .^' ^^ Parvati, Chandrika and Tijiyabai, it is proved that the deceased persons were working as Hamal (labourers) in the goods vehicle and would be covered in the class of passengers. 16. Learned counsel for the appellanVowner has stated that this finding of the Claims Tribunal is utterly perverse upon correct appreciation of the pleadings and the material available on record. This Court, therefore, would examine the evidence as to whether the finding recorded by the Claims Tribunal that the deceased/injured persons were passengers, is born out from the evidenceor not. 17. Claim Case No.62/2007, injured claimant Tijiyabai has stated that she was working as Hamal in the Metador. The driver and the owner have also supported the claimant's assertion. The insurance company, in its reply, has not made any specific averment as to whether injured Tijiyabai was a labourer/employee or passenger. The only defence raised in the reply filed by the insurance company in this claim petition is that since the seating capacity of the vehicle was three persons and admittedly eight persons were traveling inthevehicle, the insurance company would not be liable to indemnify the award. In Claim Case No.42/2007 (M.A.(C.)No.l 051/2009) the claimants have averred that the deceased Vachanbai was working as Hamal in the vehicle. Learned counsel for the appellanVowner invited attention of the Court in paragraphs 5, 6 and 7 of the claim petition, wherein it was pleaded that the deceased was regularly working as Hamal in the vehicle. The appellant/owner has also admitted ih paragraph 2 of the reply that the deceased Vachanbai was working as Hamal in his -^.^^^^^^^^^^..ws^s.^^,.^y.J^^ (f "^:. L "./ 10 Metador. In this claim case also, the insurance company has not made any specific averment that thedeceasedwas traveling as passenger. 18. In Claim Case No.43/2007 (M.A.(C.) No. 1050/2009), claimants have stated that the deceased Sawanbai was working as Hamal in the Swaraj Mazda vehicle. The owner has stated in his reply that the deceased was working as Hamal and the insurance company, in reply to paragraph 3 of the claim petition, has stated that the said fact is denied for want of knowledge. No specific averment has been made by the insurance company that the deceased was traveling as passenger. 19. In the statement made before the Claims Tribunal, the dependent claimants as well as the injured claimants have stated that the deceased/injured persons were working as Hamal in the offending goods vehicle. The text and tenor of the reply filed by the insurance company in each ofthe claim cases and the cross-examination by the insurance company to the dependent claimants or the injured claimants suggest that the insurance company was mainly harping upon the defence that since the seating capacity of the vehicle was only three and more than six persons were traveling in the vehicle, the insurance company is not liable to indemnify the award. 20. From the scrutiny of the evidence available on record, it is thus established that the deceased/injured persons were traveling as Hamal and not as passengers. Nowhere in the evidence it is stated by the claimants that the deceased/injured persons were traveling either as / fare paying passengers or as gratuitous passengers. On the contrary, ^ 11 the statement is that the deceased/injured persons were working in the vehicle as Hamal. 21. As earlier noticed, the limitation clause in the insurance policy includes employees not exceeding the number permitted in the registration document and coming under purview of the Workmen's Compensation Act, 1923. Since it has been found that the Hamals were engaged by the owner of the goods vehicle, they would be covered under the term workman as defined under the Workmen's Compensation Act, 1923 and would thus be covered under the policy to the extent the numbers were permissible. In recording this finding, this Court would draw support from a Division Bench judgment of this Court in Smt. Rambati Madiya and others vs. Budanti @ Danteshar Rao and others (supra) (paragraph 11). In the present case, the number of employees permitted were 1+2 (one driver plus two other employees). There is no claim petitiQn by the driver. In Claim Case No.71/2007, the claimant Rambhagat alias Rambagas was a conductor. In paragraph 47 of the impugned award, he has been treated as an employee covered under the policy of insurance and the insurance company has been held liable to satisfy the award in the said case. In this case, i.e., Claim Case No.71/2007, the amount awarded to the claimant Rambhagat alias Rambagas is Rs.15,912/-. 22. The question which now crops in for consideration is in which of the two employees'/Hama/s' cases the insurance company would be held liable to satisfy the award. In such an eventuality, the Hon'ble Supreme Court, in National Insurance Co. Ltd. vs. Anjana Shyam ^ °%\ 12 and others, (2007) 7 SCC 445 has held in paragraph 22 of the judgment thus: "22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy." 23. The higher of the various awards in the claim cases arising out of the subject accident has been awarded — (1) at Rs.1,32,500/- in Claim Case No.43/2007 corresponding M.A.(C.) No. 1050/2009 and (2) at Rs.1,12,127/- in Claim Case No.42/2007 corresponding M.A.(C.) No. 1051/2009. The insurance company would thus be liable to satisfy the awards in these twocases. A difficulty may arise herein inasmuch as the Claims Tribunal, in paragraph 47 of the impugned award has held Rambhagat alias Rambagas as an employee and thus if the insurance company is directed to satisfy the award in the abovementioned two cases of higher amount of awards, then the insurance company would be liable to cover three employees excluding the driver, which is not permissible. In the circumstances, while partly allowing MiscellaneousAppeals (C.) No. 1050/2009 and T .^^^^*-^.if^ ff &-,,. ' '^, j j i. i. J./ '%^y (^ 13 1051/2009 to the limited extent of holding the insurance company liable to satisfy the award, this Court would direct that if the insurance company has satisfied the award passed in the case of Rambhagat alias Rambagas being Claim Case No.71/2007, the owner/appellant shall reimburse the amount of the said award to the insurance company. 24. Learned counsel for the appellant/owner has also challenged the award by submitting that the amount of compensation awarded in each ofthe claim cases is on higher side. Onexamining the record, it would be seen that in Claim Case No.42/2007, an amount of Rs.1,12,1277- has been awarded for death of a lady aged about 60 years. Similarly, in Claim Case No.43/2007, a sum of Rs.1,32,500/- has been awarded for death of a lady aged about 50-55 years. In Claim Case No.62/2007, the injured claimant aged about 30 years, having suffered a fracture and 25% disability, has been awarded Rs.82,599/-. In three other injury cases, the claim awarded is between Rs.10,000/- to Rs.20,000/- approximately. Thus, the amount of compensation awarded in each of the claim cases from which these miscellaneous appeals are arising appears to have been assessed in a fair and reasonable manner. The award amount is not found to be excessive or without any basis. 25. In view of the above, these batch of miscellaneous appeals are decided with the following findings and terms: (i) The deceased/injured persons were traveling as Hamal in the vehicle and were engaged/employed by ^- '^, n '"•^; .14 the owner for the said work and as such they were employees of the owner of the vehicle. (ii) One driver and two employees were covered under the insurance policy for which extra premium of Rs.75/- was paid. Thus, two employees excluding the driver would be covered under the polic^rof insurance. (iii) As the number of Hama/s/labourers were more than two, the insurance company would be liable to cover the higher of the variousawards and will be bound to deposit the higher of amounts of compensation awarded to the extent of the number of employees covered by the insurance policy. (iv) The insurance company would be liable to satisfy the award passed in Claim Case No.42/2007 (M.A.(C.)No.l 051/2009, Sanjay Agrawal vs. Budhuram and others) forRs.1,12,127/- and Claim Case No.43/2007 (M.A.(C.)No. 1050/2009, Sanjay Agrawal vs. Ghasiya and others} for Rs.1,32,500/-. (v) The other four miscellaneous appeals bearing M.A.(C.)No.1049/2009, M.A.(C.)No.1120/2009, M.A.(C.)No. 1122/2009 and M.A.(C.)No. 1136/2009 are dismissed. (vi) In view of the finding at paragraph 47 of the impugned award, directing the insurance company to satisfy the award in favour of Rambhagat alias Rambagas for Rs.15,912/-, ifthe said amount has been deposited by the insurance company, the appellanVowner is directed to reimburse thesaid amount to the insurance company. 26. In the result, Miscellaneous Appeals (C.) No. 1050/2009 and 1051/2009 are partly allowed and the other Miscellaneous Appeals (C.) ^^^ //y .^ ^y' 15 Gopal No. 1049/2009, 1120/2009, 1122/2009 and 1136/2009 are dismissed. There shall be no order as to costs. —~——— Sd/- PrashantKumarMishra ^Niiiirti^^- 1-~- v.^