li'll]aiBgB|g'gfiigBRg|CTBia!l3Si::.:s l^-^'l •<; c^^ IN THE HON'RLE HIFiH COIIRT OF CHHATTT^^ARHATBILASPUR CC.GJ M.A. (-Q N0. S'Z-.S" OF 2010 AEPELLANT ^Mahesh Kumar Son of Hagaru Gond, aged about 20 years, Owner ^^•^"u.l^ ' of vehicle' Resident of Village .^r^^S-^ -'oshilmati, Police Station Gendatola, Tahsil and District Rajnandgaon (C.G.). (Owner of the vehicle) RESPQNDENTS .^- VERSUS L. Smt. Rista Bai Wife of Late . Kailash, aged about 32 years, Caste Gond. 2^, GumanSon of Late Kailash, aged about 14 years. 3.^ Kumari Jiyan D/o Late Kailash, aged about 11 years. 4..^ Kumari Tameshwari D/o Late Kailash, aged about 08 years. 5.^ Kumari Leshwari D/o Late Kailash, aged about 04 years. Respondent No.2 to 5 are minors, through their natural guardian next friend mother Smt. Rista Bai Wife of Late Kailash. All are residents of Village Joshilmati, Police 'Station Gendat&la, Tahsil and District Rajnandgaon (C.G.). '7 r ^•ii.ffT'iasis-j^^s.aas^.-silCu'E^wa^wuasi • _,F«aa ^^^^^s^^^g^^^ 6.4 ^ Prabhuram Son of Late Shri Shivdayal, aged about 47 years, Caste Gond, -Resident of Village Joshilmati, Tahsil Chhuriya, District Rajnandgaon (C.G.). (Claimants) Rajendra Kumar Netam Son of Meghnath Gond, aged about 21 years, Driver of vehicle, Resident of Village Joshilmati, Police .Station Gendatola, Tahsil and District Rajnandgaon (C.G.). (Driver) Branch Manager, New India Insurance Company, Branch Office, Parakh Bhawan, Station Road, Durg, Tahsil and District Durg (C.G.). (Insurer) MEMO OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT,1988 F-' ^ '•%-. HKH COURT OF CHHATTIS6ARH AT BILASPUR MVISION BENCH: HON'BLE MR. I.tt.QUD&USI & HON'BLE MR.NAWAL KISHO ASAKWAL. 33. ABBellMlt Respondenls ft./t. m No.525/2010 Mahesh Kumar Vs Smt. Rista Bai &others Present; Mr. Abhishek Sharma, Advocate for.the appetlouit. AAr. 5.K. Agarwol, 5r. Advocate with Mr. S. jAgarwal, Advocate for the respondent No.S. OKDEft fOraD 04T» becember. 2010) I.tt. Chrickisi. J: 1. With the consent of the parties, the motter has been heord finally. 2. The appellant-owner of the offending vehicle has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short- the Act') against the award dated 11.02.2010 passed by the learned Additional AAotor Accident Claims Tribunal (FTC), Rajnandgaon in Claim Case No.09A)9 thereby granting compensution of Rs.3,71,000/- to the claimants and fastening the liability on the nppellant herein to satisfy the impugned awnrd. 3. Facts of the case, in brief, are that on 16.1.2008 Kailash (since deceosed) had gone to do the work of labourer in tractor-trotley bearing registration number C607-&-6588 & C607-&-6589 respectively. When the said vehicle was going to Village Ramtarai to load the bricks, due to rash and negligent driving of non-applicant No.l, said Kailash fallen from the vehicle and tyre of the vehicle ran over him as a result of which he died on the spot. Report of the incident was todged in the Police Station Sendatola on the basis of which offence under Section 304A of IPC has been registered. The ciaimants, who are widow, children & fort-her of the deceased respectively, ctainned compensation to the tune of Rs.31,50,000/- under various heods on different grounds. ?=Bi.^u*Kt " )~^SKs^ /^'—^;1.-~— 1 ^. v^. <? 't!^. ./y 4. The tribunal, after hearing the parties in the matter and apprecioting the evidence available on record, partialty allowed ctaim of the appellnnts vide impugned award and fastened the liability on the appellant herein to satisfythe impugned award. 5. Mr. Shorma, tearned counsel for the appellant-owner of vehicle has submitted that the tribunal has committ-ed mistake in holding thot the vehicte wos plied iri breach of the terms & cbnditions of the insurance policy as the appellant has paid the extra premium for the employee also. He has further submitted thffit in absence of any provision regarding penal interest in the Act the tribunal has commitf'ed a mistake in directing that if the amount aworded is not pajd within time, penal interest © 8% p.a. shall be payable 6. On the other hand, AAr. Agoni/al, learned Sr. Counset for the insurance company has supported the impugned award. 7. We have heard learned counsel for the ptrties. We have alsoperused the records of the tribunal. 8. As per Section 147 of the ttotor Vehicles Act, 1988 the gratuitous passengers sitting in a goods vehicle are not required to be covered under the statutory policy. 9. It is not in dispute that the offending yehicle was used for agricuh'urnl purposes and at the time of incident it was being used for transport<rt'ion of bricks/sand etc. and thus plied in breach of the insurance poticy. It is .also not in dispute thot sitting capacity of the offending vehicle is only one i.e. only for the driver and the jnsurance policy did not cover the risk of any ext.ra sitting in the tractor". Furt-her, the owner of the vehicle failed to prove the faet that at the time of incident the vehicle was being used for agriculturat purposes. It is evident from the record that the deceased wos doing the work of decwation and he was not concerned with the work of the tractor-trolley. Thus, in such a situation, the tribunal has not committed any itlegality or impropriety in fastening the liability on the appellant-owner of tTie vehicle to satisfy the impugned oward. —— <<-• r2^ 10, However, we feel thct penal interest imposed bythe tribunal © 8% is not proper in view of the law laid down by the Hon'ble Supreme Court in the matter of National Insunince Company Ltd. Vs. ICeshav Bahadur ond others reported in g004) 2 SCC 370 wherein the Hon'ble Supreme Court has held that direction in the award for retrospective enhancement of interest for defoMh- in payment of the compensation together with interest payable thereon virtually amounts to imposition of penaltv which is not statutorily envisaged and prescribed, the tribunal has erred in awording penal interest. 11. In the result, the appeal is partly allowed, the impugnecl award, so far as it relfftes to imposition of penal interest @ 8% in case the amount of compensotion is not paid within the stipulated period, is herebyset aside. The appellant shall be liable to payonly simple interest @ 6% per annum to the claimants from the date of filing of the application till the actual payment is made. 12. The appeal is allowed in pnrt to the extent indicated above. No order as to cost. 13. Certified copy as per rules. SA'- I.M.Quddusi Judge Sd/- N.K. Agarwal Judge l=^^==::T-3i. l^^E'SSiaBw.-'saisu^a^^B^e^