-—L3" -\^ ^ ^f. IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) M.A.fC ) No 5>^ /2007 APPELLANTS Claimants ^ RESPONDENTS :1. Smt. Munni Bai, Wd/o. Late Krishna Nandeshwar, aged about 30 years 2. Rahul Rai, S/o. Late Krishna Nandeshwar, aged about 07 years 3. Ku. Khusbu, D/o. Late Krishna Nandeshwar, aged 09 years 4. Chaitram, S/o. Late Heera Nandeshwar, aged ab.out 55 years, 5. Smt. Sugand Bai, W/o. Chaitram Nandeshwar, aged abdut 52 years All Resident of village & post Kothitola, Tahsil Dongargarh, District Rajnandgaon (C.G.) VERSUS : 1. Branch Manager National Insurance Company Limited, Kamthi Line, Rajnandgaon (C.G.) 2^ Hukumchand Dhruwa, S/o. Ramgulal Dhruwa, R/o. Dumar Talab Amanaka Raipur (C.G.) ^) 3. Vijay Agrawal, S/o. Punam Chand Agrawal, R/o. Shaheed Bhagat Singh Ward Tatibandh Ward, Raipur (C.G.) 4. Branch Manager, The Oriental Insurance Company Limited, C.B.O. Mahavir Complex Maudahapara, Raipur (C.G.) Claim before the Tribunal Rs.22,75,OOO/- * Awarded amount Rs.02,45,000/- Valuation of the present appeal Rs.03,00,000/- MISCELLANEOUS APPEAL U/S 173 OF THE MOTOR VEHICLE ACT. 1988 ^.^..—^^ .'^^.^^ 'v? 1 i ':':^i 1^-., J^ ^ '^^&s^y^ ^y y^ % HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: MR. G. MINHAJUDDIN. J. M.A.(ClNo.3660F2007 Smt. Munni Bai and others Appellants Claimants Respondents Vs Branch Manager. National Insurance Co. Ltd. and others Appellants Non-Applicant No.1 Resoondents (Applicant No.1) MAfC) No.392 OF 2007 Branch Manager, National Insurance Co. Ltd. Vs Smt. Munnj Bai and others (Appeals u/s 173 ofthe Motor Vehicles Act, 1988) Present: Mr. S.K. Verma, counset for the appellants in MA(c) No.366/07 and for respondents No. 1 to 5 in MA (e) No.392/07. Mr. Dashrath Gupta, counsel for the appellant/National Insurance Co. Ltd in MA(c) No.392/07 and respondent No. 1 in MA(c) No.366/07. , Mr. Sudhir Agrawa! and Shri Abhishek Sinha, counsel for respondent No.4/0riental Insurance Co. Ltd. in MA(c) No.366/07 and respondent No.8 in MA(c) No.392/07. ORDERfOral) (14th July, 2011) 1. Since the aforesaid appeals arise out of the award dated 23.12.2006 passed by Motor Accident Claims Tribunal, Rajnandgaon, (in short "the Tribunal") in Claim Case No. 78/06, they are being disposed of by this common order. (For the sake of convenience, the parties shall hereinafter be referred to as per their description before the Tribunal.) 2. MA(c) No.366/07 has been filed by the claimants/applicants for enhancement of the award amount, whereas MA(c) No.392/07 has been filed by National Insurance Co. Ltd./non-applicant No.1 challenging the liability fastened upon jt as well as the quantum part. ^ 3. Brief facts <3>f the case are that on 18.8.2004 at about 7.30 pm deceased Kris^na Kumar Nandeshwar was returning to Village Kothitola from Devri after finishing his work. Non-applicant No.2/driver had negljgently parked Truck No. CG 04 G 3143 on the '-^^e%. '"'•^i y^.j Bagnadi Bridge without jndicator. The deceased w^s coming by motorcycle and as he could not see the stationary truck, he collided wjth that truck, on account of which he sustained grievous injuries and ultimately, died on 22.8.2004 during the course of treatment in hospital. 4. At the time of accident, the deceased was 35 years. He was an educated person and was working as Fieldworker in Pulsegreen Forest Ltd. Company and thereby earning Rs.8,000/- per mohth. The claimants/applicants are wife, minor children and parents of the deceased and they were fully dependent upon the deceased. On account of untimely death of the deceased, they have suffered financially and mentally. Therefore, by way of filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 (Jn short "the Act"), they claimed a total compensation of Rs.22,75,000/- uncter different heads for the death of Krishna Kumar Nandeshwar. 5. Learned Tribunal after close scrutiny of the evidence, documentary and oral, led by the parties, and after providing them opportunrty of hearing, awarded a total compensation of Rs.2,45,000/- in favour of the claimants/applicants by the impugned award. Out of the said amount. Rs.1.95.000/- was directed to be paid by non-applicant No.l/National Insurance Co. Ltd. to the daimants/applicants and Rs.50,000/- to non-applteant No.4/0riental Insurance Co. Ltd., which was deposited by the Orientaj Insurance Co. Ltd. as interim compensation in compliance of the order of the Tribunal during pendency ofthe claim petition. 6. Heard learned counsel for the respective parties, perused the LCR as also the impugned award. 7. Contention of learned counsel for the daimants/applicants is that looking to the dependency, the Tribunal has assessed the compensation on much lower side, which needs to be enhanced. He further contends that as the insurance policy of the motorcycle issued by nbn-applicant No.l/National Insurance Co. Ltd. covers the risk of owner, therefore, non-applicant No.1 is Hable to pay compensation to the claimants, as has been held by the Tribunat. •yi^.^ ^1:^^1 ^^m^^ 8. Learned counsel for the appelIanVNational Insurance Co. Ltd. ,contends that as the accident had occurred wholly on account of negligent driving ofthe deceased and as per version ofwidow ofthe deceased, he was not possessing a valid and effective driving iicence on the date of accident, non-applicant No.l/National Insurance Co. Ltd. is not liable for payment of compensation. 9. So far as coverage for the owner and the driver under P.A. of Rs. 1 lac is concerned, (earned counsel contends that personal accident claim is only admissible when the owner and driver/deceased was possessing a valid and effective driving ticence on the date of accident. But since the deceased, as per statement of his widow, was not possessing a driving Jicence on the date of accident, therefore, non-applicant No.l/National Insurance Co. is not even Jiabie to pay the amount payable under P.A. coverage. 10.0n the other hand, learned counsels for non-applicant No.4/0riental Insurance Co. Ltd. contend that as the Tribunal has given a categorical finding that the accident took place wholly on account of negligence on the part of the deceased, therefore, the claim petition under Section 166 of the Act itself was not maintainable and the same ought to have been dismissed by the Tribunal. 11.From perusal of the material avqilable on record as well as the impugned award, it js ctear that the truck was standing on Bagnadi BFidge on account of mechanical brake down with parking tale lights on; there was sufficient space for the other vehicles to p9ss and as such, there was no negligence on the part of the owner and driver of the stationary truck. It was the deceased himself, who, by rashly and negligently driving the motorcycle, dashed against the stationary truck, as a result of which he sustained severe injuries and ultimately, succumbed to the same during treatment. 12. Admittedly, for daiming compensation under Section 166 of the Act, there must not be any negligence on the part ofthe deceased or the injured person, and the negligence must be on the part of driver and oWrier of the offending vehicle. Since, in the present case, there was no negligence on the part of driver and owner of the offending vehicle truck and it was only on account of negligent 4 driving of the deceased, resulting in the unfortunate accident and death of the deceased, therefore, the ciaimants/appijcants could not have maintained an appiication under Section 166 of the Act. However, the iearned Tribunai, considering the age the claimants/appticants, their dependency upon the deceased driver, by applying the multiplier of 13, has rightiy assessed the amount of compensatlon, vvhich, in the and circumstances ofthe present no interference. 13. So far as contention of fearned counsei for the appeilant/Nationai Insurance Co. Ltd. js concerned, the Tribunal had ordered non- applicant No.4/the Oriental insurance Co. Ltd. to deposit interim compensation arnount of Rs.50,000/- under Section 140 of the Act and the was by the non-appljcant No.4. Whiie the fina!' 23.12.2006, the Tribunai has ordered non-appjicant No.l/N-atJonal Co. Ltd. to reimburse the amount of Rs.50,000/- to non-appllcant No-4/Orien.ta! Insurance Co. Ltd. as it has of its IIabiiity. 14. As per of the insurance policy by non-applicant No.l/the (nsurance Co. Ltd. in favour of owner of the rnotQrcycie, the Personal Accident (P.A.) coverage of Rs.1 tac is for the ovvner. Although widow of the deceased has stated in her evidence before the Tribunal that her husband was not having a drivino iicence to drive the motorcycte on the date of accident, but this there is no other evjdence on record, on the basis of which i't can be said that the deceased was driving the motorcycle without a valid and effective driving licence. The burden to prove that on the date of accident the deceased was driving the motorcycie in breach of conditions of insurance policy was on the National insurance Co. Ltd., however, despite opportunity being provided, It could not adduce any evidence to prove this fact and thus, faiied to discharge its burden. Therefore, only on the basis of statement of,;widow of the deceased, it cannot be said to have been established tt-iat the deceased was not possessing a valtd and effective drivi^g iicence on the date of accident to drive the motorcycle. Cdnsequentiy, the deceased, who was owner of the motorcycle, is held to be covered under P.A. coverage to the extent -A-l. •Ai '-J. of Rs. 1 lac, ^vhich the ciajmants/respondents are entitled to receive from non-applicant No.1/the National Ensurance Co. Ltd. 15. intheresuit: > MA(c) No.366/07 being without any substance «siiabfe to be and is, accordingiy, dismissed. > MA(c) No.392/07 is partiy aliowed and the impugned award 23.12.2006 is modified to the extent that non-appticant No.l/Nationai insurance Co. Ltd. shall pay only an amount of Rs. 1 iac, due under the personai acddent iiabiiity, to the ctaimants/appficants within a period of two months from the date of receipt of copy of this order aiong with sjmpie interest @ 6% per annum form the date of fiiing of clalm petition tilf its payment is made. It is made ciear that the amount, if any, already deposited/pajd by non-appitoant No.l/National insurance Co. Ltd., the same shai! be adjusted against the award of Rs. 1 lac and the remainder shall be pald to the ciaimants/respondents. > The Tribunai has ordered that the amount of Rs.50,000/- which has been deposrted by non-applicant No.4/0riental insurance Co. Ltd. under "No Fault Liabiiity" should be reimbursed to it by non-applicant No.t/Natlonal Insurance Co. Ltd. Even after adjudioating that the owner artd driver of the offending vehicle truck were not negiigent in parking the truck on the Bagnadi Bridge and thus, not iiable to pay compensation under Section 166 of the Act, non-appiicant No.4/0nentat Insurance Co. Ltd. wiil not be entitled for refund of the said amount of Rs.50,000/- paid by it under "No Fauit Liability" and consequently, the direction of the Tribunai to non-appficant No.l/National Insurance Co. Ltd. to pay the said amount of Rs.50,000/- tp non- applicant No.4/0riental Insurance Co. Ltd. cannot be sustained and the same is hereby set aside. 16. No order as td costs. 17.Cert{fi'ed copy as per rules. ^ Sd/- G.Minhajuddin Judge