rf'^ IN THE HONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fC) No. OF 2008 (APPEAL VALUED AT Rs.l. 59,500 /-) '^^' -^-~.' ' , : APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACTS. 1988. -»1 APPELLANT fNON-APPLICANT No.4) u^.\ ^- ^--r, ^•^5^. .»»•* f^'^ *' ' -••**' ^^ts'\'^- ^y' ^"' Versus {APPLICANT N0. 1) :1 tAPPLICANT N0. 2) :2. (Non-ApDlicant 'No.l) :3. {Non-Aoplicant No. 21 •yt^- J*he New India Assurance Coinpany Limited, through: its Divisional Manager, Divisional- OfRce, IInd Qoor, Rama Trade Centre.Above UTI Bank, Opp. Rajiv Plaza, Bus Stand Road, BUaspur (C.G.) Santu Tandon, S/o-Late Jhangaluratn Tandon, aged about -40 years. Smt. KuteUa Bai, W/0- Shri santu Tandon, aged-38 years. Both are R/0- Vill.-Risada, P.S. & Tah. Masturi, Distt.-Bilaspur (CG). Krishna Kiunar @ Pappu andon, S/0-Vu-endra Kumar Tandon, aged about-35 years, R/o- vill.- Mulmula, P.S. Pamgarh, Distt.- Janjgu--Cham.pa (C.G.)(Driver of the motorcycle) Virendra Kumar Tandon, S/0- Uttam Kumar Tandon, R/o- vill.-Mulmula, P.S. Pamgarh; Distt-Janjgir-Champa (C.G.) ,-~< r; X ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble ShrLJystice Radhe Shyam Sharma Miscellaneous Appeal (C.) No.937 of 2008 Appellant versus Respondents The New India Assurance Company Limited Santu Tandon and others Present: Shri Dashrath Gupta, counsel for the appellant. Shri Goutam Khetrapal, counsel for respondents No.1 and 2. Shri Vinod Tekam, counsel for respondents No.3 and 4. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORAL OR&ER st (Passedon21s'July,2011) By the instant appeal, the New India Assurance Company Limited seeks exoneration from liability to pay compensation fastened by award dated 9-5-2008 passed by 1 Additional Motor Accidents Claims Tribunal, Bilaspur in Claim Case No.227/2007. '2. Case of the claimants, as stated in the claim petition, is that on the date of accident, i.e., 27-12-2006, at about 9:30 A.M., deceased Ajay Kumar was riding a motor cycle Bajaj Pulsar bearing registration No.CG 10 B 8004, which was being driven by non- claimant/respondent No.3 Krishna Kumar alias Pappu Tandon and they were going towards Village Nariyara. On account of rashand negligent driving of the motor cycle, it dashed with a Peepal tree $ituated by the side of the road at Nava-Talab turning. In the ^<.. ff«s»».^\ 9 ^saaaa. B 1 <«&nac8 | ^ . •^ ^ ^..// '^y^.s.^' ,^pe aiiaff" accident, the deceased sustained serious injuries on his person. He was taken to CIMS Hospital, Bilaspur for treatment, where he died. The accident was reported to Police Station Pamgarh, District Janjgir-Champa. At the time of accident, the motor cycle was owned by non-claimanVrespondent No.4 Virendra Kumar Tandon and was insured with non-claimant/appellant. The claimants/respondents No.1 and2, who are father and mother ofthe deceased, preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act')claiming compensation ofRs.10,50,000/-. 3 . The Claims Tribunal, after appreciation of the evidence available on record and hearing the parties, allowed the claim petition and awarded a sum of Rs.1,59,500/- as compensation in favour of the claimants fastening liability to satisfy the award on the non-claimants, i.e., driver, owner and insurer of the motor cycle, jointly or severally. 4. Shri Dashrath Gupta, learned counsel for the appellant/insurer of the motor cycle has argued that the motor cycle was insured for third party risk, but the deceased, being a pillion rider on the motor cycle, was not a third party and was not covered under the policy of insurance and, therefore, the appellanVinsurance company is not liable to satisfy the award. 5. Shri Goutam Khetrapal, learned counsel for respondents No. 1 and 2/fhe claimants has supported the impugned award and submitted that the award does not call for interference by this Court. \- ^"mV6>\ ''"'.-*,""%? '.•~:.^e^c>. ^ .?•' (^^ 6. Shri Vinod Tekam, learned counsel for respondents No.3 and 4/the driver and the owner of the motor cycle has argued that the alleged accident was not eaused by the motor cycle owned by respondent No.4 and driven by respondent No.3. At the time of accident, the motor cycle was insured with the appellant/insurance company and, therefore, if any liability arises, the same should be fastened pn the appellant/insurer ofthe motor cycle. 7. I have heard learned counsel for the parties and perused the record. 1 have also perused the policyof insurance (Ex.D-1) as also the policy document Ex.D-2 issued by the appellant/insurance company with utmost circumspection. The policy of insurance (Ex.D-1) shows that it covers risks of owner-cum-driver of the motor cycle and third party only. 8. Claimant Santu Tandon (AW-1 ) has stated in paragraph 3 that on 21-12-2006, his son Ajay, along with Krishna Kumar alias Pappu, was going on the motor cycle towards Village Nariyara. On account of rash and negligent driving of the motor cycle by Krishna Kumar alias Pappu, the motorcycledashedwithaPeepa/tree situated by the side of the road at Nava-Talab turning. In the accident, Ajay, who was sitting on the motor cycle behind Krishna Kumar alias Pappu, sustained serious injuries on his person. He was taken to CIMS Hospital, Bilaspur for treatment, where he died. Laxman Manhar (AW-2) has also stated inparagraph 1 that Ajay was sitting on the motor cyele behind Krishna Kumar alias Pappu and the motor . cycle was t^ping driven by Krishna Kumar alias Pappu. •V \-. .^' /-•^, "%' €J' '"" ^ v-^»h. 3 •ii.,,:,.^'%^^.;,<. ^.^ -»1 .^ •< - 9. In First Information Report (Ex.P-2), it is mentioned that the motor cycle was being driven by Krishna Kumar alias Pappu and Ajay was sitting behind him. 10. From the above evidence, it is evident that Ajay was a pillion rider on the motor cycle bearing registration No.CG 10 B 8004. 11. In General Manager, United Insurance Company Limited vs. M. Laxmi and others, (2009) 17 SCC 301, the Hon'ble Supreme Court has held thus: "10. In United India Insurance Co. Ltd. v. Tilak Singh, (2006) 4 SCC 404, it has been noted as follows: (SCC p.412, para21) "21. In our view, although the observations made in New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other • vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger." (See also paragraph 18 of Oriental Insurance Company Limited vs. Sudhakaran K. V. and others, (2008) 7 SCC 428) •* 12. On appreciation of the evidence available on record in the instant case gnd ofl the basis of the principle laid down by the \. ^~. •]"1 ;? ,,7 Hon'ble Supreme Court inh/1. Laxmi's case (supra), I hold that at the time of accident, deceased Ajay was a pillion rider on the motor cycle and, therefore, his risk was not covered in the policy of insurance of the motor cycle. Accordingly, 1 further hold that due fo a fundamental breach of conditions of the policy pf insurance, liability for payment of compensation cannot be fastened on the appellanfinsurance company and it solely rests upon the owner of the motor cycle. The appellanVinsurance company is not liable to satisfy the award. 13. In the result, the appealis allowed. The impugned award, so far as it relates to payment of compensation by the appellant/insurance company, is set aside and the insurance company is exqnerated from liability to satisfythe award. The award shall now be satisfiedby respondent No.4/owner ofthe motorcycle. Rest of the conditions mentioned in the impugned award shall remain intact, Noorder as to costs. | Sd/- R-S.Sharma Judge — Gopal ^ ^' '\~.