HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Agpeal No.432 of 2005 Jamuna Bai and others. APPELLANTS cVLAIMANTs Versus Oriental Insurance Company and another. RESPONDENTS ‘R/\ ORDER For consideration wL Sd/- N.K. Agawal Judge 7 rr..r VJ, , H, {—8-2011 Hon’ble Shri Justice Raieev Gugta sdl- " Chief Justice Judge 1, q 5 k ‘ Post for: Q —8—201 1 Sd/— N.K. Agrawal Judge ” ’ ”go—8:201 1 _ I; HIGH COURT OF CHHAT’I‘ISGARH AT BILASPUR Misc. Appeal No. 432 of 2005 2. Anand Enterprises, Through the Manager, Tarbahar, Bilaspur (C.G.) (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT,1988) DB:-I-ION. SHRI RAJEEV GUI’FA, CJ 85 HON. SHRI N.K. AGARWAL, J. PRESENT :— Shri Hemant Kesharwani, counsel for the appellants. Shri A.K.Athaley, counsel for the respondent No. 1 ORDER ( g —8—201 1) Per N.K.Agarwal, J. 1‘ This is claimants’ appeal seeking enhancement in the aruount of compensation awarded by the 5th Additional Motor Accidents Claims Tribunal, Bilaspur (for short ‘the learned APPELLANTS! : 1. Jamuna Bai, W/o Late Shri CLAIMANTS Ganesh Yadav, aged about 20 y€ars 2. Chaitram, S/o Shivdutt I Yadav, aged about 50 years 3. Malti Bai: W/o Chaitram Yadav, aged about 45 years 4. Durgesh Yadav, S/o Late Shri Ganesh Yadav, aged about 10 months, through f guardian mother Jamuna ’ Baj. AH R/o Village Semartal, Tehasil and Distm‘ct Bilaspur, Thana K011i, Bilaspur (C.G.) VERSUS RESPONDENTS 1. Oriental Insurance Company, Through the Branch Manager, City Branch Ottice, Dayalbandh, Bilaspur (C.Gr.) Tribunal3 in claim case No.22 of 2004 vide its award dated 8th September, 2004. 2. As agajnSt compensation of Rs.5,34,000/— claimed by the claimants i.e. unfortunate wife, palents and minor son of 'iate Ganesh Yadav by filing claim application under Secu’on 166 of the Motor Vehicles Act (henceforth ‘the Act’), the learned Tribunal has awarded a total sum of Rs.50,000/- as compensation to the claimants for the death of late Ganesh Yadav. \/ 3. The learned TribunaL on a close scrutiny of the evidence led, held: unidentined truck dashed the scooter bearing registration No.M.P‘24—B/9137 being driven by deceased Ganesh Yadav at the time of accident, as a result of which, he died; as per the claim application, the above accident had occurred on account of rash and negligent driving by driver of unidentified truck, therefore, the owner and insurer of the scooter cannot be held liable; awarded Rs.50,000/’ along with interest at 9% per annum from the date of application till its actual payment holding claimants are entitled for above amount under Section 140 of the Motor Vehicles Act. 4. Shri Hemant Kesharwani, learned counsel appearing for the appellants would submit: the learned Tribunal has fallen in error in not assessing and in not awarding compensation by applying multiplier method. 5. On the other hand, Shri A.K.Athaley, learned counsel appearing for respondent No. .1 / Oriental Insurance Company Limited would submit: deceased Ganesh Yadav was not a third party and claim petition itself was not maintainable; as per the claimants’ pleading, accident had occurred due to negligence of driver of unidentified truck so also claim 3 ?/ petition was not maintainable against the owner and insurer of the scooter, therefore, there is no need to interfere in the award passed the learned Tribunal. o. We have heard learned counsel appearing for the parties b and perused the record of the Tribunal including award impugned. [. 7. As per case of the appellants: when deceased Ganesh Yadav was going to his in—laws’ house, near Darrabhata one unknown truck dashed him; he was taken to Government Hospital, Bilaspur, where he died on account of injuries sustained by him in the accident on 23.12.2001. Thus, the negligence pleaded was of the driver of unknown and unidentifled truck. The claim preferred was under Section 166 of the Act. 8. In a proceedings under Section 166 of the Act, unless it is established that due to rash and negligent act on the part. of the owner or driver of a vehicle death occurred, no compensation should be payable to the claimants. 9. The Supreme Court in the case of Oriental Insurance Company Limited v. Premlata Shukla and others, (2007) 13 SCC 476 has held: proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application under Section 166 of the Act. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would‘be liable to pay Mi. compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to Section 147 (2) of the Act is mandatory in character, the insurance company would statutorily be enjoined to indemnify the owner. The insuren however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claim ants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. 10. In View of above, the claim petition iiled under Section 166 of the Act against the owner and insurer of the scooter was not maintainable as according to the claimants themselves accident had occurred due to rash and negligent driving by the driver of unidentified truck. 10. So far as amount of Rs.50,000/- awarded by the learned Tribunal under Section 140 of the Act is concerned, since respondent No.1/Oriental Insurance Company Limited has not challenged the above award by filing appeal, therefore, we refrain ourselves from expressing any opinion on the correctness or otherwise of the above award. ‘ 11. For the reasons mentioned hereinabove, in our considered opinion, the appeal preferred by the appellants/claimants for enhancement of compensation, being devoid of merit, is liable to be and is hereby dismissed. 12. No order as to costs. Sdl- J‘ N.K. Agawal Sd/ ChiefJu-S H'ce Judge Judge