C^-JJ7 IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) 'n^im M.A.IONO. P-'Jo I OF 2009 (D.B.) APPELLANT ^ '^•" ^\^-,^ ^•^" ••<^t^r -^^" .'>' RESPONDENTS : CLAIMANTS ^WM/s^ -z^.-"~<%^ ?'cs/' ^\^s\ Parmeshwar Prasad Chandrawanshi aged about 46 years S/o Late Dadu Ram Chandrawanshi, R/o Village Manikpur, Kawardha, Tahsil and District Kawardha (C.G.). (Owner of the offending vehicle) VERSUS 1. Smt. Anusuiya Devi, aged about 28 years, Widow of Late Kamal Chandrawanshi; 2. Jagriti Chandrawanshi, aged about 12 years D/o Late Karual Chandrawanshi, 3. Ranjeet Chandrawanshi, aged about 10 years S/o Late Kamal Chandrawanshi; 4. Sanjeet Chandrawanshi, aged about 8 years S/o Late Kamal Chandrawanshi; The respondent No.2 to 4--are Minors, through their natural guardian Mother Smt. Anusuiya Devi. All residents of Bhartiya Nagar, Bilaspur, Tahsil and District Bilaspur (C.G.). ^ 5. The Branch Manager, I.C.I.C.I. Lombard General Insurance Conipany Liraited, Lalganga Complex, Raipur through Branch Manager, I.C.I.C.I. Lombard General Insurance Company Limited Bilaspur (C.G.). (Insurer) 6. Ramkhilawan, aged about 57 years S/o Late Tulasram Chandrawanshi, R/o Village Kusumghata, Police Station Bodla, District Kawardha (C.G.). MISCELLANEOUS APPEALJJNDERSECTION 173 OF THE MOTOR VEHICLE ACT, 1988 '7 HI6H COURT OF CHHATTISfi^WH AT KLASPUft MVISION NCH: HON'BLE MR. I.M.QUD&USI & HON'BLE MR.NAWAI. laSHORE A6WWAL. JJ. tt.A. (0 N0.1261/20)9 AoDellant ParmedwiiKr Pnwad Chandnauondil Vs Smt. Anusuiya t)ew and others & M.A.fONo. 1412/2009 ICXCI Lombord Seneral Inairance Co. Ltd. Vs Smt. Anusuiya tSevi ond others Rcspondtnts Appellant Rtspondents Present: Mr. Malay K. Bhachiri, Adv. for the t^ellants Jn A^.A. (c) No.l261/Q9 qnd for respondent No.5 in M.A. (c) No.1412/09. Mr. Amrito Das, Adv. for respondent No.5 in M.A. (c) No.1261/09 aid for the appetlont in M.A. (c) No.1412/09 None for other respondents. ORDEK (Onil) (22"d Nwembw. 2010) Quddusi. J; 1. Wrt-h the consent of the parties, the matter has been heard finally. 2. M.A. (c) No.1261/09 filed by owner ofthe vehicle and M.A. (c)No.l412/0? fited bythe insurance company are being disposed of by thiscwnmon order asboth these appeals haye been filed cgoinst' the flaNard dated 24.7.20Q9 passed in Claim Case No.28/08 by the leamed t8t AddH-ional Motor AccidCTt Claims Tr'ibunal, Bitaspur whereby the tribynal has allowed the ckMm petitipn of the claimants, awarded a sum of 1^447,50p/- as compensat'ion.gnd fnst-aied the tiability pn the insurance company to sotisfy the auwrd with liberty to recover the amount of compensation from the owrier. • 3. Facts of the case, in brief, are that on 08.12.2007 deceased KdmaJ Chandrmanshi vms going towords Boer Etasin in the tractor-trolley bedu'ing regjstration numbers C604-&A-5667 & C604-DA-5602 respectively. At the relewmt time, the said vehicle vms driven by one Rohit Verma, owned by the Parmeshwar Prosad Owndravunshi (oppetlant in M.A. (C) No.l26t/09) and insyred by the insunince company (appellant in M.A. (C) Nto.l4l2/p9). The said ' •;lc' •^'tl JJ %s-rfy •%£nss '^^ vehicle tumed turt-le iwap Boer Baan as a reaih' of which Ifte clrh«rof the said vehicte ond the deceased died. Report of the incident was lodyd in the Pollce Station Pfflidfftarai, Kmiwrdha on the basis of which pffence uncter Crime No.27/07 has been pegist-ered. The cknmants, whp wemdwi wul cltttldpw of the deceased respectjyely, ctair^ compensa1i<»tq the tyn^^^ Uflder vurious heads on difforent grounds. 4. The tribunql, after hearin9 the parf'ies in the m<riter <md gpprecjat'tng the evidence availnble on record,,partially dlowed cttMm of t^ impugned <mwrd. 5. Mr. Bhaduri, le<OTied cpunsel fpr the ^|)el|art'-<»iB»rpf ve^ thfft- tiie tribwial hns cominftted mishike in holdjng that tte^dnyer of th^ vehicte was not hawng yalid flnd effectiye driving ^cwc.e.iS'theVMWofmi^nf, whereas in Claim Case No.67/08 ticense of the driver, who also dled in the said accident, wws prqduced. He has furrtier aibmitted that the tribunal has «ved in passii^ the directi<m regdrdjng gayandrecover, {larticu^ fact that the vehicle wns insured with the msurance com|x»iyfit' the relewmt peripd and the inaironce coinpany failed to prove the breach pf insyronce policy. 6. On the other hond, Mr. Das, learnedcounwl for 1+>e tnduroii^ con^wnyviwuy submit that white pasang the impugned aNnrd the trjbunal has lost sightof the fact thatthe yehiclein (^e^tonw^agoods v^iclec^thepoU^^ gopds vehicte does not cover gratwt'ws passengers carrjed in auch vehicle. He further ivgued tha* admittedly the decensed wns trawting jn the said.vehicte as gr^itpus pasi^gersfl^npextmprem^ for covering the risk of thot posa^er. He •hirther argyed th^ despite holding tha* the yehicte in question wws plied in brewh of the terms and conditions of policY, has directed the inainnce compony to j)oy the compensation to the claimants and theneafter recoyer the same fromtheONmer of the vehicte, whlch is not tenable. 7. We hwe heard leamed counsel for the parties. We hav®dso peniised the records cf thetribunal. 8. As per Section 147 of the Atotor Vehictes Act, 1988 the gratuittNjs {aBi8|iaigers srtting in a goods vehicte are npt required to be cpwi^ imder 11ie.rfcrtiut'ory poticy. , ~^- v ^ »• ^ .-^'" 9. On close scrutiny of the record, it is evident that in the claim petition itaelf it has been st-ated that the deceased was Cwfenter by profession and ecming Rs.3,330/- per month. Fyrrtier, in the st-atement Ihs wdwt of •1}«dw»tee4 has stated tha* on the fatefut day her husbc^ was gmng m Parmeshwor Pmaad (pwner of thevehfele)to d> hts «nnewprlfc Theiwmer <^ the vehicle fajted to brjng <mreco^'rt^'^^^idecefS^wvs^^i^^ traKtor^roljey in the cdtiiocity <rf Ubcu^ taking extra premium, the insunmce comjKiny ho8 wdw'Mi^'fhsr^ttfs^ gratuitouspassenger. Thus, m such fflffltufff'jon, no hal|ilitywu^ the insunmce conyany as the grffhiitais paMen9ers are not cowred under the insunnce policy and therefore, the dired'ion of the tnbunal to |»nywid recpwr to the insunmce compony isalso not tenable in the eye of law. 10.In the resuh-, the appeat [M.A. No.(C) 4412/09) preferi^ bythe<!(>pellant- insurance compony succeeds and the impugned ^ as it relat'es to the direction to the appetlarrMnsuraice comp^^ topaytlie (Mn<xjnt ofcomRensation to the ckrimonts <nd recover the same frmn the oumer ofthe yehic|e,is hereby set aside. The ownw af.vd'i^^ <f»stwn compehsation tothe claimants. In case anyamount deptwited by theapjwlldnt- insurcnce cpmpany has been wnthdrcnim bythe claimaits, it will be open for it to recover the same from the owner of the vehicle. Houiever,tf the ainount, «> deposlted, has not been withdnwm so far, the insurance company shall te allowed to withdnn* the some. Re^of the conditjons <md fnriir^^^c^ impugned awwird are hereby confirmed. It is hereby chirified thpt the cloinKart-s are fre^tpexeaute the nmrd cgam^ the oismy of the^^^y^ 11. Sp far as the appeal [M.A. No. (C) No.1261/09) of the otmer of the vehicle is concemed, in view of tte foregoing discussrons, the same is hereby dismissed. 12. Certified copy asper^ytes. . ^___^- Sd/- I.M.Quddussl Judge Sd/- N.K. Agrawal Judge SAi