^-' Oiv^ion ^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 N0.^^ /2009 MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 APPELLANT INSURER TRUCK RESPONDENTS CLAIMANTS ..'M^ .^w ^y^ -^y OWNER Both the offending vehicle. DRIVER TRUCK ICICI Lombard, General Insurance Company Limited, Registered office: ICICI Bank Towers, Bandra-Kurla, Comptex, Mumbai, 4000 51, through its Legal Manager, ICICI Lombard General Insurance Company Limited Lal Ganga Shopping Mall, 3rd Floor, G.E. Road, Raipur (C.G.). VERSUS 1., Shiv Kumari wd/o late Ramjanam Paikra, aged (? about 20 years/ Ku. Indramani D/o Ramjanam Paikra, aged about 6 month Respondent No.2minor represented through mother Shiv Kumari. Vishvanath Paikra, s/o Nachuram, aged about 45 years, Chamoliya Bai w/o Vishvanath Paikra, aged about 43 years. 5.^ Ramsewak Paikra, s/o Vishvanath Paikra, aged about 14 years, Resp.No. minor represented through father Vishvnath Paikra. All R/o village- Dadansara, Police Station Bhaiyathan, Tah. Surajpur, Distt. Surguja (CG) 6.. Ramkumar s/o Shiv Lal c/o M/s. B.M.N. Transport Pvt. Ltd. Vishrampur, City & Post - Vishrampur, Dist. Surguja (C.G.) INSURER Loader Terex DRIVER Loader Terex 7.. ) Sukh Lal s/o Heeradhan, aged about 25 years, Occupation - driver of Hiwa vehjcle, R/o village Tendupara, Post Basdei, presently residing at c/o B.M.N. Transport Pvt. Ltd. Vishrampur, City & Post - Vishrampur, Dist. Surguja (C.G.) Regional Manager, Reliance General Insurance Company Limited, Anil Dhirubhai Ambani Group/Area office shop No. 412413, 4thfloor, Ravi Bhavan Jaistambh Chowk Raipur (C.G.) 9 Ramjeet s/o Shri Kabirdas Dewangan, aged about 24 years, R/o village Badrika Ashram,P.S. Ramanujganj, Tahsil - Surajpur, District Surguja (C.G.) presently residing at c/o B.M.N. Transport Pvt. Ltd. Vishrampur, City & Post - Vishrampur, Dist. Surguja (C.G.) r- '••%..\ "%>^ 11 T^ ^Sik 1 '^ '..'^ ^' ^ <^ /% HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (Q No. 999 of 2009 Appellant ICICI Lombard, General Insurance Company Limited Versus Respondents Shiv Kumari & others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri Justice I. M. Quddusi & Hon'ble Shri Justice G. Minhajuddin, JJ Shri Sourabh Sharma, Advocate for the appellant. Shri V. A. Goverdhan, Advocate for the respondent No. 8. None for the other respondents. k- ORDER (Oral) ( Passed on this 2nd day ofAugust, 2011 ) Per I. M. Quddusi, J. This appeal has been filed by the appellant/Insurancc Company on the question of,quantum as well as liability, against the award dated 21.4.2009, passed by the Additional Motor Accident Claims Tribunal (FTC), Pratappur, District - Surguja, in Claim Case No. 2/2008, awarding a total amount of Rs. 6,34,500/- as compensation, holding the present appellant/Insurance Company as liable to pay 50% ofthe total amount of compensation and rcst of the 50% of the total amount of compensation shall be paid by the non-applicant No.4 (Reliance General Insurance Company). Brief facts, in nutshell, are that on 27.10.2007 in the night at 3.30 a.m. when deceased Ramjanam Painkra, was looking for proper siding of the vehicle Hywa. Truck, bearing registration No. C.G. 15- A/6855, at that time there was another vehicle -Terex Modal 2021 No.4, standing in front of Hywa. The driver of the Terex vehicle was trying to start his vehicle and the driver of Hywa in a rash and ?v ^.—^fl^x1 'm?B9iS^. I 1. '^J:^ y ^ C^) negligent manner at once took the vehicle ahead, thereby dashed Ramjanam, resulting in his death. The dependents/legal heirs of the deceased filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation ofRs. 27,00,OOO/- under various heads. Learned Claims Tribunal, having regard to the facts situation and the evidence on record awarded a total sum of Rs. 6,34,500/- as compensation with interest at the rate of 7% per annum, holding the present appellant/Insurance Company as liable to pay 50% of the amount of compensation and rest of the 50% of the amount of compensation shall be paid by the another insurance company. We have heard learned counsel appearing for the parties and perused the records and found that though the deceased was a Khalasi deputed on the Hywa truck as an employee but at the time of the accident he was standing outside the vehicle. Learned counsel for the appellant has urged that the risk of Khalasi was not covered under the insurance policy but it is not a case where the accident had taken place where the deceased was sitting inside the vehicle at the time of accident. In fact, at the time of accident the deceased was standing outside the vehicle and therefore he was a third party and it cannot be said that the third party risk was not covered under the insurance policy. Therefore, the Insurance Company was liable to pay the compensation in view of the insurance policy and therefore the appeal on this count fails and is dismissed. With regard to the quantum fbced by the Claims Tribunal we have found that there is no permission under Section 170 of the Motor Vehicles Act, 1988 granted to the appellant - Insurance Company. Hon'ble Apex Court in National Insurance Company Ltd. Vs, Nicolletta Rohtagi and others 2003 (3) TAC 293 (SC) has held that 8. unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to challenge the award on merits. Therefore, the instant appeal is not maintainable in respect of quantum in absence of the permission. In view of the above, we do not find any force in the arguments advanced by learned counsel for the appellant to interfere with the impugned award passed by the Claims Tribunal. The appeal deser^es to be and is dismissed accordingly. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Thakur