^;^ij^^?^'^^:fe^-^iii;^^^!® ^t/^- •,/W/'^\^->/~</~'i/~- IN THE HIGH COum- OF CHHATTISGARH AT BILASPUR MISC. APPEAL ra NO.^s-/20010 /.< ^ -^^ MISC. APPEAL UNDERSECTION 173 OF THE MOTOR VEHICLE ACT.1988 APPELLANT INSURER ^ ^' ^ :- ICICI Lombard, Generallnsurance Company Limited, Registered office: ICICI Bank Towers, Bandra- Kurla, Complex, Mumbai, 4000 51, ^^1 „ , through its Legal Manager, ICICI /l3^ ^J^* 1-ombard General Insurance Company Limited LalGanga Shoppjng Mall, 3rd Floor, G.E. Road, Raipur (C.G.). ^?^ ^«<< VERSUS RESPONDENTS CLAIMANTS DRIVER OWNER 1. Bhanubai Wd/o Late Sandhar ^? Markam agedabout 32 years s: 1A. Ku. Manjula Markam D/o Late Sandhar Markam aged about 07 years. C7 ^ > 4. Sudarshan Markam S/o Late Sandhar Markam aged about 05 years. Respondent no. 1A & 2 minor represented through Mother Respondent to .1 All R/o Village Burjabahal, P.0. Tetalkhuti, P.S. Devbhog, Tahsil Mainpur, District Raipur (C.G.). Nirbhay patel s/o Shri Kartikram Patel , aged about 24 years, R/o Village Burjabahl, P.0. Tetalkhuti, P.S. Devbhog, Tahsil Mainpur, District Raipur (C.G.). Ajbal Gond s/o Shri Baliram Gond R/o Village Salhaybhata, P.0. Tetalkhuti, P.S. Devbhog, Tahsil Mainpur, District Raipur (C.G.). HIGH CQURT OF CHHATTIS6ARH AT BILASPUR APPELLANT M.A. (ONo.785 of 2010 ICICI Lombard General Insurance Company Limited Versus ^ESPONDENTS : Bhanubai & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT DB: Hon'ble Shri Justice N. K. Agarwal & Hon'ble Shri Justice R.L. Jhanwar, JJ. Present : Shri Sourabh Sharma, Advocate for the appellant. Shri Shivendu Pandya, Advocate for respondent No. 3 & 4. ORALORDER (Passed on 29.11.2010) Per: N.K. Agarwal, J. Heard on IA No. 1, applteation for condonation of delay in filing the appeal. On due consideration, we are satisfied that the counsel ,for appellant is succeeded in explaining the delay caused in flting this appeal. Accordingly IA No. 1 is allowed and delay caused in filing the appeal is hereby condoned. Heard on admission. 1. This is insurer's appeal against the award dated 27.04.2010, passed by the Additional Motor Accident Claims Tribunal Gariyaband, Distt. Raipur (for short 'the Tribunal') in daim case No. 03/10, whereby and whereunder an amount of Rs. 3,23,000/- has been awarded in favour of the claimants alongwith the jnterest @ 7.5 percent per annum if award is satisfied within a period of two months, and in default penal ^ ^J y.^ 6. interest @ 9.5 percent per annum against the appellant/insurance company. Brief facts of the case are that, on 15.05.2009 Sandhar Markam (since deceased) met with an accident with Tractor bearing registration No. CG-04-DB-7624 & Troltey No. CG- 04-DB-7625 as a result of which Sandhar Markam succumbed to the injuries sustained in the said acddent. The claimants preferred an application before the Tribunal under Section 166 of the Motor Vehides Act, daiming compensation to the tune of Rs. 31,00,000/- for the death of deceased in the said accident. The Tribunal on a close scrutiny of the evidence Jed, material placed and submissions made by the parties, awarded a sum of Rs. 3,23,000/- in favour of the claimants and as against the insurance company. Shri Sourabh Sharma, learned counsel appearing for the appellant would contend that : the deceased was sitting in the Tractor at the time of accident; the vehicle was filled with bricks and was used for non-agricultural purpose; and as such, the insurance company cannot be held liable for payment of compensation. We have heard the counsel appearing for the appellant and perused the award impugned and LCR. ShriYashwant Ram Patel (NAW-1) i.e. legal Manager ofthe appellant/insurance company has admitted in para 8 of its statement that there is no mention in the FIR and Merg n ss i^. '>€^ intimation regarding sitting of deceased Sandhar Markam in the Tractor at the time of accident, there is nothing in the evidence adduced by the claimants regarding sitting of the deceased in the Tractor. The evidence shows that when the Tractor turned turtle he came in contact with the Tractor and died. Further, the appellant/insurance company failed to adduce any evidence showing use of Tractor for non- agricultural purpose at the time of accident. 8. For the reasons mentioned hereinabove, we are not jnclined to interfere with the award passed by the Tribunal. However, we have observed that penal interest has been imposed by the Tribunal which is not legal, and therefore, to this extent, we are inclined to interfere that the Tribunal was not right in imposing the penal interest @ 9.5 percent, accordingly, that part of the award js set aside and the amount of award is payable with flat rate of interest i.e. 7.5percent per ahnum from the date of application till its recovery. 9. The appeal is accordmgly allowed in part to the above extent. Noorder asto costs. Sd/- N.K. Agrawal Judge Sd/- R.L. Jhanwar Judge ^i k Sahu