IN THE HIGH COURT OF TUDUCATURE OF CHHATTISGARH AT BILASPUR M.A. NQ. .... ^.^. .<&. ../2004 rAppeal Valued at Rs. 1;53,600/-) APPEAL UNDER SECTION 173 OF MOTOR VEfflCLE, ACT, 1988 APPELLANT lon-applicant N6.3) .United India Insurance Company Limited, Through: its Divisional Manager, Divisional Office Main Road,Korba,Tah.& Dist. Korba(C.G.) VERSUS : g—1. ^- Mst. Sumtee Bai ^ Wd/oRamnath, Aged 22 years Caste Chik. ?.<^' Ku. Seema D/o Ramnath Aged one year, (Mmor) (Though: Guardiai^ ad-litem- p-R> Noy::^.1^;?^^^ ' mother Mst. SumteeBai.) p^^edby^^-— ' v | la^d ...^-.••l-^^--^(•••""' - 3.^. Mst.TUasoBaiM/oRanmath, Age 60 years, Respondent No. 1 to 3 are R/o. Village Dhodhidand, P.S. Kimkuri, Distt. Jashpur (C.G.) RESPONDENTS licant No.l) licant No.2) (Applicant No.3 ^' [Non-Applicant No.l) :^ (Non-appUcant No.2) (Non-applicant No.4) / ^' 4,^' Jaheer Khan ©Jahiruddin ^ S/o Kamaruddm, R/o Kunkuri, P.S. Kimkuri, Distt. Jashpur (C.G.) (Driver) ^' 5.<>. Manoj JainS/oJagmohanJam, <?/ R/o Kmikuri, P.S. Kunkuri, District Jashpur (C.G.) (Owner) ^, 6 •^ • Deepak Kumar Agrawal, <" S/o Ashok Agrawal, Occupation Busmess, R/o Kimkuri, Distt. Jashpur :3irp::iB^iw>. ^ ^ ^ Bemg aggrieved by the award dated21'i1.2003 passed by lotoy Accident Claims Tribunal, Jashpur (C.G.), m Claim Case No. 05/2003 between the parties (Mst. Sumtee Bai & others V/s. Jaheer Khan & others), appeUant prefers this appeal on the following facts and gronnds: FACTS gajjja^ HIGH COURT OF CHHATnSGARH AT BILASPUR ALA,_No. 246 OF 2004 APPELLNT RESPONDENT8 United India Insuraace Coiupaay yersus Mst. Sumtee Bai and otliers SINGLB BENCH:- Hon. Shri_N.K. Agarwal, J PRESBNT;- ^ ShriDashrath Gupta, Advocate, forappeBaD.ts. Shri. Roshan Venaa, Adv. for respondents No. 1 to 3. StuiJeet Patel, Adv. fQrrespondents No. 4 aud 5. ORDBR (29-1-2010) 1. This is insurer's appeal against ttie award dated 21-11- 2003 passed by fhe Additi6n.al Motor Accideat Clauns Tribuaal, Jashpur Distt. Jashpur in Motor Accideat CIaita Gase Wo. S/200^wheieby and wiiere Rs. 1,53,600/- has /been awaided in favour of ffae claimaats/ respondents No. 1 to 3 aad as against the appeBaut and respoudents No. 4 to 6. 2. Facts offhe case, in.brief, are as undcr:- 3. DeceasedRamnath was workmg as ^hafetsi' in Tata truck 407 bearmg registrafion No. M.P. 26 D/0075 uader einployinent of the owuer of the vehicle. On; 8-9-2000 while going firoiu Kunkuri to Raapur, the said vehicle tuined turtle due to rash and negl^ent dnviag ofthe driver ofthe tra.ck Fesulfiltg ia death of Ramnath. Wife, dai^hfer aad inother 'oS the deceased claitaed Rs. 15,00,000/- as compensation for his deatti io. ftie said accideiLt Uy filajig an appUcation ztader Section 166 of fhe Motor Vehicles Act; 1988 (briefty, 'Act^. -•c' • . • • . : . •• 4. Theowner and fhcdriverbffh^ velucte deaiie(t ttieir Ml and pleadjed tliat smce fhc vehlcle is appellaat/insuraace colnpaoy, fherefore, iasuredl wlth thc jt is tljtfi liabality of fhe uisUraace cpiiipany to pay coiapcnsatft)ii, to i tiae elauriaats. The insuraaGe coiapapy filed. itis WEitten statement, deili)ed its^liabilily on the giouiuli ttffffc tBe: <. vehicle was not iusured at the time of accident by the appeUant, fhe fact fhat the deceased was workiag as Khalasi iu the said ta-uck has not been specifically dexded by the insuraace compaay. 5. The claiaiaats examiaed three witnesses Suintee Bai, eye- witaesses Kishore Gupta aad Raiakumar Nayak. The owner of the vehicle examiaed two witnesses Jaheer Khaa, driver aad Manoj Kumar Jain. The iasurance coiapaay did not adduce aay evideace nor poUcy of iusurauce has been exhibited aad proved. 6. Learaed Tnbiuial on a close Scrutiny of fhe evidence led, Baaterial placed and subuussions niade, held that ffae deceased was worMag as Khalasi iu the said truck; the vehicle was insured at fhe tim.e ofaccideat covering risk of deceased Khalasi; awarded aforesaid amount as coinpensatioa ia favour of fhe claituaats; held liable the uisurance Gompaay. 7. Leamed cozinsel fpr fhe appeUants would subinit that as per the F.I.R., 15 - 20 persons were traveUuig in fhe said truck as passengers iacludiag flie deceased aad, therefore, the deceased was a gratultous passenger aad fherefore, the iasuratice coiuipauy is not liabfe to cover the risk ofsueh peisoii travelliug ia fhe vehicle as gratuitous passenger and fhe appeal preferrcd deserves to be aUowed. 8. Per contra, leamed counsel appearin^ for fh.e respondents supported the award and submitted that the iasuraace company has been held Uable by leamed TribuD.al on appreciation of evidence led ia the matter aad findiags have been arrived at by the Tribunal on cogent icasons which deserve to be upheld. < . / • 9.1 have heard leamed counsel for the pardes, perused the award impugaed as also the record oftheTribuiial. 10. It is not in dispute fhat the vehicle was covcred uader the insriraace policy aad by tekiag extea premiuia, risk of Khalasi was undertaken Under it. <i (1 11. So far as the coutcntion raised by leamed counsel for fhe appeUant that the deceased was travclliag in the vehicle as passcnger is concemed, plea of elaimants that deceased was workmg as Khalasi ia the said truck, has not been specificaBy denied by the appeBant in its written statement; fhe clnimaats' witoesses Sumtee Bai has categorically deposed that her husband was wdrkuig as KhaSasi in the said truck, Kishore Gupta and Ramkum.ar, the ofher witaesses examined by the claicuauts have also categoricatly deposed aboutexnployinentofthedeceased as Khalasi w. the said truck at the time ofaccident Nothiag has been asked by the appeUaat iasurance conipaay to controvert the aforesaid fact ia the cross-examination of the aforesaid witaesses. As per the F.I.R. Ex. P-l also, the said deceased was Khalasi of.the said truck. In view of above, it cannot besaid that fhe deceasedwas not working as Khalasi ia fhe said truck but was travelling as gratuitous passeuger. Apart J&'om it, it is trite law that the biuden to prove the defence avaUable to the appellant/ iusuraace compaay under Section 149(2) ofthe Act is upon the appellant/msuiance company. Admittedly the sSme has not been dischai^ed by it by laking plea ia this behalf aad by adducing evidence thereupon. 12. In view of above, ia the considered opinion of fhls Coitrt, the appeal being devoid ofsubstance is liable to be dismlssed aad is heneby dismissed. Sd/- N.K. Agawal Judge /