(^ HON'BLE IN THE HIGH COURT OF CHHATTISHGARH AT BILASPUR M.A.(C)No- d)2-Jr'°'"l- APPELLANT JHE ORIENTAL INSURANCE CO. LTD., CITY BRANCH- NAGPUR (MAHARASTRA), THROUGH MANAGER, THE ORIENTAL INSURANCE CO. LTD. MALVIYA NAGAR, DURG C.G. RESPONDENTS ^ :-1. ^( <1 \ ^••:^ •°.V7":A^^ \^5f^ ^ "'^^- .^.- ^ 4. ^' Vrs. HALALKHOR S/0 RUPLAL SAHU AGE ABOUT 42 YRS., RESIDENT OF VILLAGE CHICHA, THANA DHAMDHA, CHOUKY- BORI^ TAH.- DHAMDHA DISTT.- DURGA C.G. PRESENT ADDRESS- DEPTY SINGHAL BAZAR CHOWK , THANA & PO.- KALMANA MARKET, TAH.- & DISTT.- NAGPUR(MAHARASTRA) BHAGWANTIN W/0 HALALKHOR AGE ABOUT 40 YRS. RESIDENT OF VILLAGE CHIGHA, THANA DHAMDHA, CHOUKY- BORI, TAH.- DHAMDHA DISTT.- DURGA C.G. PRESENT ADDRESS- DEPTY SINGHAL BAZAR CHOWK , THANA & PO.- KALMANA MARKET, TAH.- & DISTT.- NAGPUR(MAHARASTRA) MAHADEO S/0 GOVIND FULMALY (BANKAR) , AGE ABOUT 3fl YRS. RESIDENT OF - 347 ( HOUSE OF NAND KUMAR), VAISHALINAGAR KAMALA CHOWK NAGPUR, THANA PANCHPAWALI , DISTT.- NAGPUR(MAHARASTRA) SARDAR JASPAL SINGH DHRUV S/0 GURUBAKHSH SINGH DHRUV, AGE ABOUT YRS. , R/0 -G.E. ROAD, TATIBANDH, RAIPUR, (VEHICLE OWNER) ^^—" APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT COURT OF CHHATTISGARH ATaLMPUR M..A.(C) No. 825 of 2007 APPELLAN1 The Oriental insurance Co. Ltd. Versys : HaEaEkhorandothers.. APPEAL 173 OF THE 1988 Divisgon Bench: Hon'ble Shrl l.iVS. QyddusL& Present: Shn Suchir and Shri P. Dutta, counsei for the appeliant. Sint. Gu|3ta, counsel for respondents No.1 & 2> ORALQRDER rth on 27CR day of October, Per N.K. AaarwaE 8 »^» The appeilant-insurance Company has flied this agalrsst the impugned award dated 15-03-2007, by Eieventh Addltjonal Motor Accident Clalms Tribuna{,(F.T.C.) Durg, (for short 'the TribunaJ') in Claim Csse No. awarding compensation to. the tune of Rs. 4,71,000/- to the claimants. 2. of the are that on 21-04-2001, Kumar (since going to Pateva to the marriage of his maternat uncle (IVSama) by the.Truck bearing registration No. M.P. 23-DA/6485 aSong with other persons. Near Vliiage uria, P.S. PuEgaon, Distnct Durg due to ra.sh and negEjgent driving of driver/respondent No.3, the said truck turned turtie as a result of which the Kumar and other persons hav&dled. \.^ 4. The cjaimants unfortunate parents of the ha^e fiied a ciajm petition before the Tribunai under Section 166 ofthe Motor Vehlcles Act, (for short 'the Act') ciajming. 't^i 0 compensatlon of Rs.10,22,000/- for the death of the deoeased in the said accident. 5. The learned Tribunal on ciose scrutiny of evidence ied, material pjaced and the submlssions made, awarded an amount of Rs.4,71,000/- In favour of the ciaimants and agalns? the appelSant and respondents No.3 & 4 hoSding them iisble for its payment jointiy and severaily aiong with jnterest @ 6% per annum from the date of appiication. 6. Learned counsei appearing for the appeliant submits that ieamed Tribunai committed error of 1aw in directing the appeEIant/lnsurance Comparfy to flrst pay the amount of compensatlon to the ciaimants and then to recover It from the owner ofthe vehicle. 7. Per contra, iearned counsel appearing for the owner as ©Isothe supported the award and reiylnQ on the iaw lald down by Hon'bie the Supreme Court in the matter of Ca LM ys. reported In 3 SCC 297, contended that in the and circumstances of the csse, iearned Tribunai has not committed any error in dlrecting the appeilant/lnsurance Company So first pay and they to recover the amount of award from the ov^ner of the vehlcle. 8. We have heard iearned counsei for the parties and perused the Impugned award and record of the Tribunal. 9. ln para 14 of the award, Eearned Tribuna! has held that the deceased a.nd other persons were sitting in the Truck as passengers which js in breach of the conditions of the poljcy; the Truck driver knew that passengers cannot trave! in the truck ,even then he allowed them to travel in the Truck and for that the deceased was not responsible and fsstened the ijabitlty 'to pay compensatlon upon the appellant/insurance Company and drlver and owner ofthe truckjolntly and severaiiy. Howeyer,-.in para 15 of the award, Eearned Tribuna! directed the appeiiant to first pay :'^. ^<. •€^''-.^^> L o f^- the amount of award to the ciaimants and then to recover it from the owner of the vehicie. 10. The main controversy centers around the iegai question whether in the facts and circumstances of the case in which the Tribunal itseEf had exonerated the appeESant/lnsuranee Company from sny Eiabillty to pay compensation to the claimants, dlrection to pay first to the claimant and then to recover It from the owner can be passed in terms of Section 147 ofthe Motor Vehlcies Act, 1988. Section 147 the Motor Vehicles Act, 1988 reads as under- "147. Requirement of policies and of —(1)!n order to compiy with the requirement of this Chapter, a poilcy of insurance must be a poiicy which- (a) is issued by a person who is an authorised insurer; and (b)insures the person or c!asses of persons specified in the poiicy to the extent specified in sub-section (2)- (1) against any iisbiiity which may be incurred by hlm In respect of the death of or bodily Injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use ofthe vehide in a public piace; (ii) against the death of or bodify injury to any passenger of a pubfic service vehicie caused by or arising out of the use of the vehlcie in a pubiic place: Provided that a poiicy shalf not be required" (i) to cover liabJSity In respect of the death, ansing out of and in the course of his employment, of the empioyee of a 4 person insured by the poilcy or in respsct of bodiiy injury sustained by such an empioyee arislng out of and in the course of hi's emptoyrnent other than a liability arising under the Workmen's Compensation Act, (8 of 19.23), In respect of the death of, or bodity injury . to, any such employee- (a) engaged In driving the vehicle, or (b)if it js a pubiic service vehicle, engaged ss .a conductor of the vehicie or in examining tlckets on the vehicie, or (c) if It Is a carriage, being carried In the vehide, or (ii)to cover any contractuai liabiiity. (2) Subject to the proviso to sub-section (1), a poiicy of jnsurance referred to in sub-section (1), shaii cover any iiabiiity incurred in respect of any acddent, up to the foilowing limjts nameiy:- (a)save as provided in clause (b), the am.ount of iiabiiity incurred; (b) In respect of damage to any property of a third party, a ijmit of rupees six thousand: Provided that any poiicy of jnsurance jssued with any tlmited liabiiity and in force, immediately before the commencement of this Act, shai! continue to be effective for a period of four months after such commencement or tili the date of explry of such policy whichever is eariier. (3)A poiicy shal! be of no sffect for the purposes ofthis Chapter unless and untij there .rf^^- S A. 11k ~ JJ ^, '^s^/ '%cs^5^ js Issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance In the prescribed form and contalnlng the prescribed particuiars of any conditions subject to which the pollcy is Issued and of any other prescribed rnatters; and different forms, particuiars and matters may be prescribed in different cases. (4)Vv'here a cover note issued by the Insurer under the provislons of this. Chapter or the rules made thereunder is not followed by a poilcy of insurance within the prescribed time, the Ensurer shall, within seven days of the expiry of the period of the vaildlty of the coven note, nofity the fac-t of the registering authority In whose records the vehlcle to which the cover note reiates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstandlng anythlng contained in any law for the time being in force, an Insurer issulng a policy of insurance under this sedion l shail be liabie to indemnlty the person or classes of persons specified in the policy in respect of any Jiablllty which the poiicy purports to cover in the case of that person or those ctasses of persons." 11. A perusai of the above provisions wou!d reveal that the provlsions of the Act do not enjoin any statutory liabiiity on the owner of a vetilcie to get his vehicte insured for any gratuitous passenger travei^ng in a goods carriage and the insurer 'wouid have no liabiiity therefor. 12. This view gets support from the decision of 3 Judge-bench of Hon'b!e Supreme Court in Hew Asswance Comssanv /^y%. •/".•• ^ ^ •.^K. % "^'•^^^^" 6 -v- an^ Ors. reported in A8R SCW 5259, in which st has been that for passengers traveiing in goods vehicie, the insurance company would have no liabillty therefor. This position was further highjighted by Hon'bie the Apex Court in Ca Lftt -v- In 339, LtfS. -¥" ftiHt reported in 668, LtcS. -v-Baiiit reported in 1 and jpsurance Co. Ltd. -v- Bommithi Sybbhavamma and others reported In 2005(12) SCC 243. 13. The same decision was reiterated by the Hon'bie Apex Court in recent judgments in New Endla Assurance Co. Ltd. -v- Vedwati and others (suora) and Natlonal Insurance Co. Ltd._- v- Prema Devi OrSa (supra). Hon'ble Apex Court In the case of Snsurance Corripanv -v- Laxmlnaravan reported in 2007(3) SCC 700 heid that the decision in Siiiah^s.case (supra) has no application to cases other than the thlrd pa.rty. Therefore, the statutory provlsioRS contained in Motor Vehicies Act, 1988 do not enjoin any statutory EEabiiity to cover the risk of gratuitous passengers of goods camage vehicle because such passengers traveling in a goods carriage vehicle are not third party and, therefore, even a direction to first pay and then recoverwouid be bad. 14. Therefore; in the facts and clrcumstances of the case, vve have no hesltation to hold that the Insurance Company cannot be held iiabie to fsrst pay the amount of compensation to the cEasmants and then to recover it from the owner of the vehicle. 15. For the reasons aforesaid, the direction contained in the irnpugned order to the tnsurance Company with regard to flrst pay and then to recover jt from the owner of the vehicl8--cannot be sustained. The impugned award Is accordingiy modified to the extent that so far as directlon to the insurance Company to fjrst pay and then recover Is concerned, the same Is set aside. \ .;\ However, It is further directed that jn case durlng pendency of this appeal, if any amount has been deposited by the appeilanVlnsurance Company and then disbursed to the cialmants, then the appeliant/insurance Company shail be entitied to recover the same from the owner by fliing execution before the TribunaE. The claimants are entltled to execute the award against the owner. 16. The appeal is accordingiy allowed partly. No order asto costs. . . '; —-—-— Sd/- I.M.Quddusi Judge Sd/- N.K. Agarwa! Judge Kvr