PA '-'" ~-";&?^. n.r: ^p ^^: ?Vo taaito<«W^^^ BEFORE THE HON'BLE HIGH COURT QFLCHHATTISGARH ATBILASPUR M.A.(C) No^ /2009 APPELLANT 1. ^ /DEFENDANT N0.2 ,..^ls>^) ..........:,::^^ .•^••""^••""v-rc/!rv ^"^n^ ^- RESPONDENTN0.1 ^CLAIMANT N0. 1 J. IFFCO- TOKIO GENERAL INSURANCE COMPANY LIMITED, through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur (CG) VERSUS Smt. Santoshibai Rajak W/o Late Puniram Rajak Aged about 25 years. RESPONDENTN0.2 ^CLAIMANT N0. 2 Ku. Santoshi Rajak D/o Late Puniram Rajak, Aged about 12 years RESPONDENT N0.3 ,/CLAIMANT N0. 3 Smt Khorbarin Bai Rajak W/o Late Manrakhan Rajak, Aged about 65 years All three R/o Hardikala(Tona), Tahsil .- Bilha, Dist.-Bilaspur(C.G.). RESPONDENT N0,4 j3— DEFENDANT NO.^li 4. Shravan Kumar Sahu, S/o Shri Makhan Sahu, R/o Hardikala(Tona), Tahsil.- Bilha, Dist.-Bilaspur(C.G.). ^- MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTORVEHICLE ACT. 1988 HI6H COURT OF CHMATriS^RH AT BILASPUR DIVISIGNBENCH: HON'BLEMR.I.M.QU&DUSI^ HONiBL6 MR PftASHANTKUM^R MISHRA. JJ. M.A Tc1 No.1589/2009 Appetlant Respondents Vs Iffco - Tokio &enerai Insurance Company Limited. 5mt, Sontoshi Bai Rajak <& oltiers Present: Mr, Vikrant Singh, Adyocate for the appellant, Mr< /^<C/ Scjuiu, Advocare for resEpondents NoJ to 3 ^r, 1.5, ScAu, Advoccrte for respondent No.4. ORDEftrOraiy (irh March, 2011) I.M. Quddusi. J: 1. Heard. 2. Thls iscxh insurer'sappealquest^ 3. By way of this oDpeal under Section l73 of the Motor Vehicles Act, 1988 (for short lthe Act'), the cippeJlant-Insurance Compcmy has impugned the award dated 11.09.2009 passed by the leapned 6th Motor Accident Cla.ims Tribunal,Bilaspur (C^) (for short 'the Tribunal8) in Claim Case No.152/2008 allowing the claim application of the claimonts^^a^ fts3J5,000/- to the clajmGints and fastening l^ Insurance Companv to firstsoitisfy the oiward and thereaftef recover the sdme from owner of the offending vehicle^ 4. Facts of the case, in brief,are 1+»aton 08.05.2008 deceasedPunJram Rajak had gone to Village Chhafona as a member of a bond party to perform in a marriage, After performing iri ^e marriage, he^^^d^ of band-party was returninQ from Viilage Chhatona in the auto-rickshaw bearing regjstr'ation number C^IO-C-1990 and whey they reached near Chakarbhata Basti, the said auto-ric^ of its driyer.turned turtle asa result 1t^e deceased sus^ and he died in CIMS, Bibspyr while undergoing treatment. The claimants; who are unfortunate widow, daughter and mother of the deceased/ have '3j filed a ciaim petition before the Claims Tribunal seeking compensation to the tune of fts.23,35,000/- on the ground that they were dependent on the deceased, who was the sote earninglmember in family, and due to his dealti, they have suffered bss of income. 5. On the pleadings of 1+ie parties, the Tribunal framedasmanyas four issues and after hearing the parties and considering the material wailable on record arrived at a conclusion that 1+ie claimants are entitled for compensation as 1+ie jncident had taken pjace due to rash and negiigent driying of respondent NoJ herein and accordinqlY.aliQwedltie claim petition and awarded a sum of fts,3,75,000/- as compensation. The Tribunal has also granted iiberty to the appellant Insurance Company to first pay the amount of compensation to the cla?m<ants and thereafter recover the same from 1+ie owner of the vehicle in question. 6, Mr Sjngh, learned coun%( for the appellant-Insurance Company has submitted that in -riie facts and circumstances of the ca^ the deceased connot be treated as third porty and thus, the Tribunai has erred in passing the direction regarding pay <xnd recover. 7. On the other hand , iearned coynsel for respondents have supported the impugned award, 8. We have heard learned counsel for the parties and perused the records of the Tribunal as also the findings given in the impugned awdrd. 9, It is true that the Hon'ble Apex Court in 1tie matter of National Insurance Company Vs. Swarn Singh & others reported in (2004) 3 SCC 297 has directed to payand recover but that case wasa third party claim and therefore 1+ie ratio laid down in that case cannot be followed in the instant cafie which is not a third party claim as in the present ca^ the deceased was traveling as passengerin the vehicle which was insured cis goods vehicle and as sych, his status in thesaid vehiclewas of gratuitous passenger and as per Section 147 of the ^ct, 1988 the graluitous passengers sining in a goods yehicle are not required to be covered under the statutory poiicy, TTierefore, impugned award of the Tribunal, at one hand exoneratjng 1+ie w^ Roshan/- ^\ Insurance Company from its liabjlity and at the same time directing to pay the ciaimonts oind 1+iereafter recover from the owner/ is erroneous. 10.In the result, we allow 1+iis appeal,set aside the award dated lt.9.2009 passed by the Tribunal in Claim Case NoJ52/08, so far as jt rebtes to fastening of liability on the appellant-Insuromce Company and held that the I a^pellant^nsurance Compflny is not liable to poy compensation to the claimants involved in -rfie impugned award and the same shaJI' be paid by the owner of vehicle in question i,e, respondent NoJ herein- In ca% any amount deposited by the appellorit-Insurance Company has been withdrawn by the claimants, it will be open for it to recover the ^me from ^ owner of vehicle, However, if the ampunt, so deposited, has not been withdrawn so far, the insuran^ company shall be allowed to withdraw 1tie ^xme. It is hereby clarified that the claimants are free tp execu-te the award oigainst the owner of vehicle. li/No order as to costs. 12. Certified copy ois per rules. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge i&: