C.P '.~,<T^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPtiR M.A. (C) No. IT£^; /^OIO on K APPELLANT (N.A No.3) The Oriental Insurance Company Limited, Through : The Branch Manager 16, R.S.S.Market, Power House Bhilai, Tahsil & Distt. Durg-(C.G-) ^^fi^i" VERSUS RESPONDENTS Claimants .....^^^1 \^"' \.." n ^\"\.^ t.»l»'>i- ^ ^,^' ..v^- l.e Smt.Kumari Bai Ghiri Wd/o Late Vishnu Prasad Ghiri, Aged about 39 years '2.1 Tikaram Ghiri S/o Late Vishnu Prasad, Ghiri Aged about 21 years 3/^ Shrawan Kumar Ghiri S/o Late Vishnu Prasad Ghiri, Aged about 18 years, 4. a Kuleshwar Prasad S/o Late Vishnu Prasad ? ^ Ghiii, Aged about 15 years. 6. 7. ; (N.A.NO. 1 85 2) 5. ^. Ku.JaiPrabha Ghiri D/o Late Vishnu /'-' Prasad Ghiri, Aged about 10 years Res. No.4 SB 5 are minor through natural guardian mother Smt.Kumari Bai Wd/o Late Vishnu Prasad Ghiri. Sukhlal S/o Shri Devnath Ghiri Aged about 65 years, Smt.Sheesham, W/o Sukhlal, Aged about 55 years, All are R/o Sirsakala, P.S. Bhilai-3, Distt. Durg-(C.G.) Guha Das Joshi S/o Bakhraya Joshi, Aged about 48 years, R/o Ram Nagar, Azad Chowk, Supela, P.S. Supela, Bhilai, Tahsil 8s Disft. Durg-fC.G.) -Driver-- Municipal Corporation Bhilai, Through - Comruissioner Municipal Corporation Bhilai, Supela Distt Durg (C.G.) 8. 9. <k APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT AGAINST THE AWARD/ORDER DATED 12.03.10 PASSED BY LEARNED VIIIth ADDITIONAL MOTOR ACCIDENT CLAIMS NIGH CQURT OF CHHATTISGARH AT BILASPUR MA(C). No. 569 of 2010 APPELLANT (NA. No. 31 RESPONDENTS Claimants The Oriental tnsuranceCompanyLimitod. Versus Smt. Kumari Bai GhW and othere. MISC6LLANEOUS APPEAL UNDER SECTION 173 OF THE MOTORVEHICL6S ACT Division Bench: Hon'ble Shri I.M. Quddusi & Hon'ble Shri N.K. Aaarwal. JJ. Present: Shri Hanuman Prasad ^rawal, counsai for tfie appeltant. Shri C.K. Sahu, counsel for respondents No. 1 to 5. Shri JitBndra Gufifa, counsel for respondent hto.8. Shri Shashank Thakur, counsel for respondent No.9. ORALORDER (Passed on 8th day of Septemtoer, 2010) Per I.M. Quddusi. J. Heard. 2. This appeal has b^ fited agaimst the award dated 12-(%"2010 passed by VIII Addifionat Motor AccWwrt Claims Tribunal (F.T.C.), Durg (for short the Trlbunal') in Glaim Oase No.33/2009 allowing the claim to the tune of Rs.3,95,000/- alwigwith irterest @ 6% per annum ID the claimants, holdlng the liability to pay compensation upmi the appeltant/lnsurance Company. 3. Brief facts of the case are ttart one Vishnu Prasad (slnce deceased) was woridng as a cleaner under respondent No.2, i.e. Nagar Palito Nigam, BNIai. On 20-10-2008, at abeut 8.00P.M., whito going for spreading fog through fogging machins along with TO-worker namely Raghu on Bajaj Dellvery Van bearing registratbn No. MP 24- C/4712 fin whfch the toggirg machine was kept), the said vehide tumed turtte due to whieh the deceased Vishnu Prasad suceumbal to the injuries in the said accklent. 4. The claimants unfortunate wklow, children and parants have filed a claim petition before the Tribunal under Section 166 of the Motor ^^v^^^'.l "^. •'»"•* .^. •^,..,.: 'li<*-.^'»l.r Vehteles Act (for shon the Atf) claiming Rs.22,S),272/- along with interest @ 12% per annum. 5. The question arises before this Court as to wh^herin »iefactB and circumstances of the case; the Insurance Company is liabte to pay compensation te the claimants or ttie owner of ttie Vehtele i.e. Municipal Corporatton.Bhilar? 6. We have perused ttis Insurarwe Poltey. The vdiicje in queshon was a goods vehtele. Tvro persons i.e. driver and one person, may be cleaner are permitted to sit in the vehicle. The deceased was a Safai Karmi. The seating capactty of the vehicle was only two. As per the policy, drh/er only was insured. Admittedly, there were ttiree persore sitUng in the vehicle in quesfion i.e. one was drwer and ttiere weretwo safai Karmachari i.e. the employees ofthe Munic^al eoiporatton. One was sitBng just adjacent to driver but Vtw deceased wss sitting in Dala where the f<^ging machine was kept. If we take the provisions ®f Secfion 147 of the Act into consktoration which is reganEling compulsory requlrements of poliGies and limits of liability of th» Insurance Company, at the most, the employee insured by the poltey or authorized representaUve of the owner of the goods carried in #ie vehicle, could be said to be covered under statutory policy. In this regard, proviso to Section 147 (1) (b) is Uable ta be perused which is reproduced as under: "147. Requirements of policies and limtts at Uability.- (1) In order to comply wiBi the requb-ements of this Chapter, a policy of insurance must b» a policy which- (a) is issued by a pereon who is an authorizad insurer; and (b) insures ttie person or dasses of persons specified in the poHcy to the extent specified in sub-section p) (i) against any liability which may be incurred by him in respect cf the death of or bodily (injury to any pereon, including owner of the goods or his authortzed representative carried in the vehicle] or damag^ to any property of a third party caused by or arisii^ out of the use of the vehicle in a public ptace; / (i0 against Uie deafli of or bodily injury to any passenger of a public seivice vehicte caused by or arising out of the use of e vehicle in a public place." 8. In e instant case, since it was not a vehiete meant for carrying passengers, there is no question to treat e deceasMl as a passenger of the pubtic service vehicte. With regard to the repr^entative o owner, the goods was the fogging machine and one of the employees of the owner who may be treated as representatwe namely Raghu was sitting adjacent to the driver. Therefore, he was sitting in accordance wth ttie provisions of clause (b) (i) of Sectton 147 of the Act but the deceased was not sttdng at the seadng place, rattier he was sitting in fte Data, which was not permissible and if he was d^Hited to fook after the fogging machine or for Uie puipose of uslng of foggir^ machine, tt cannot be said to be the liability of Vhe Insurance Compaty, as there was breach of condition of tha polfcy. Sitting in ttie Deta nras not permissible and it was totally risk of the owner, if the owner deputed its emptoyee to stt in the dala for the purpose of tooldng afto or using the f<^iging machine. 9. In the above regard the case taw lald ckwn by Hon'ble the Apesc Court in the case of National Insursmee Co. Ltd. vs. Cholleti Bharatamma and offtars; reported in (2008) 1 SCC 423 te liabte to be followed by which the flnding of the MACT was held as eraoneous by the Apex Court. Para 23 of which is quoted as uncter: "23. Upon considering the evidence on record, it was held: "fts the permitted seating capadty of the leny is only '3' ira;kidirg the driver and cleaner and as onlyone non-fare paying passenger as owner of goodscan taivel in the cabin and ss ttie deceased has admittedty travellal in e cabin beyond seating capacity and contrary to the terms of the permit as well as Rule 25^2) erf ttie Motor Vehicles Act, lam of the view that R-2 cannot be fastened with the liability to pay compensatk?n along wtth R-1 (o all the injured and legal representatives of the deceased. At best It is liabte to pay compensation jeintly and severally along with R-1 only in resped of one non- fare paying passenger, who <s the owner of the goeds. / ^ ^yvf- 1'';, \:-,.L"':: '..:--' ^,. ^ per the endorsemert; I.M.T. 14(b) unless addittonal premium is paid for ttie numfaer <rf pereonswho fraveded In the lony, as ownere, 1 am of Uie view that R-2 cannot be fastened with liabllity. Further all the p^tionars and the deceased cannot be deemed to have travelted a» ownere of the paddy as the paddy is said to be tn bags and orally kept in loose in the lony and itfe enough ifany one of them have travelled in the torry on bthalf of dl, as owner of the lorry. Rule 277(3) of tt» A.P. Motor Vehicles Rules, cl®iriyshows that no person stall be carried in ttie goods vehfcle except as provtded in Uw Rule under the stafcrte and as the only person, who ts permftted to cany in goods vehteto is Vw owner or hirer or bona flde employes <rf owner or hirer and totat nun'feer of such persons, who coutd be catried in goods whide is not more than seven Jncluding e driver. As per RBto 252(2) no person shall be carried in the cab of the vehKite beyond Uie seating capactty as per Clause (i^. No pereon shall be carried onthe toad or ottierwue. Rute 4 empowers RTA to allow large number of persons to be carried. ^s the seaUng capactty of the torry is only '3'as per Ext. B-1 and B-3 and as the risk of orriy ovmer <rf goods is covered by Exl. B-2 policy, whereas about 40 to 42 pereons travelled in Vbe torry by sitting on ttie Isad, which is not permitted and as there is no materid to show that RTA permitted carnage <rf more than »ating >: capacity but on ttie other hand ttie permit is cancelted, 1 am in agreement wfth the contentton of the leamed counsel fw the respondent that ftcannot be fastened with . the liabllity (w compen^Con." 10. In paragraphs 27 and 28 of tfie abw judgment in case <tf Naffiwal InsuivnceCo. Ltil. vs. €»iolMIBfiaratamma smtl otliws (supra), Hon'ble the Apex Court has also rejected the ptea that tto respondent was fravelling as the owner of the goods. Those two paragraphs are reproduced as under: "27. The leamed counsel appearing for e respondent, sutwnitted that frem the aforementfoned finding, tt is evident that ttie respondent was havelling ^c^ss.'s^g'Si SSBF%^?gdg^^?S®^ ^^i-^^l' '-/f' S v; \: \". l^ •'•I. as the owner of Uie goods. We cto not ttiink that the said submission is correct. PW 2, in his evidence, stated: °t am domg tamarind business. 1 witnessed the accident which took place about 3 years back atabout 6 a.m. at Borrampatem junrtion beyond Talluru. Atthe time of the accklent < was in Uie crime lorry by tte skle of the driver. Myself and 6 others were carrying tamarind in that lorry betanging to us. We t»ardedthe lorry along with our toad of tamarind at Dharmairaram to go to Rajanagaram. We were selling the teunarind at Rajanagaram in retafl by taking the tamarind there fn our lorry from our village of Dharmavaram". 28. The Tribunal, therefore, eoriedfy recorded that according to PW 2, he was travelling with his g<»ds as owner thereof and not ttie deceased." 11. The other pereon sitting on the s^ adjacent to ttie driver namely Raghu, who appeared as witness No. 2 from the steieof ttie claimante, has stated in his statement that the deceased Wshnu Prasad was sitting in the Dala and he was teavii^ smoke Uireugh fogging machine from the dala and this witoiess was sitting as helper i.e. in a different side. He admitted Uiat there was seaflng capacity <rf only two persons i.e. driver and the helper. There was no place for third person to sit He had also admitted in his statement in thecross- examination that the deceased Vishnu Prasad was nei&iCT driver nor hetper in the vehicle in question and he and the deceased both were safai Karmachari. 12. In view of above mentioned facts and circumstances, we are of the opinion that Insurance Company was not liable to pay ttie compensation. The policy in question did not cover the insurance of third person, who was sitting on Dala thattoo whieh was ncrt the sitting place and the deceased could not have been treated as refwesentative of th®owner i.s. Municipal Corporatipn, Bhilai as Raghu (»wtness No. 2) was already sitUng at the place of sKting meant for hetper who was also a Safai empl<yee ofthe CorporaUon. 3E~^ 13. In wew of above discussion, tte appeal deserves to ba alhwed and the same is allowed. The liability ofttie Insurance Compaiy in the impugned award is set aside. The owner i.e. Municipal Cotporation, Bhilal is responsible to pay compensaUon awarded by fte Tlribunal to the Claimants. All Uie depreits made by ths Insurance Company/appellant shall be rsftinded to it, if not disburewl to die claimants and if the same or any part of the deposft has been disbursed, it will be open tor the Ireurance Gompany to reced/er e same from the Munfejpat Corporatton. No order asto costs._ Sd/- ' DR. I.M.Quddusi Judge Sd/- N.K. Agarwal Judge Kw