IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH) M.A.fONo. 0_?Jto Of20(] APPELLANT XON-APPLICANT No. 2 / ^^,1^"^ .....-^•'•^"c.^^ W>-a>-"L'^ .<S.,'i^''"vl'T ^ci^;^"(n^^' ,AP" / SPONDENTS :-^<Inited India Insurance Company Ltd. Branch Offlce Shanti Palace, Chakradhar Nagar Chowk, Raigarh, Tahsil and Distrcit Raigarh (C.G.). VERSUS >h Shatmghan Lal Bareth, son ofLate -- Khikram Bareth, aged about 38 yrs, 2. Smt. Yashoda Bai, wife of ^ Shatrughan Lal Bareth, aged about ^^ s 35 years, Minor Bhola, son of Shatanghan Lal Bareth, aged 15 years, ^f Minor Hazari, son of Shatmghan Lal Bareth, aged about 12 years, Respondent no. 3 and 4 (wrongly written respondent no. 2 and 3) being mmor through their natural guardian father Shatmghan Lal Bareth, son of Late Khikram Bareth, Occupation Mazdoori, Caste Bareth, resident of Bagh Talab, Murga Path, Circuit House Road, Raigarh, Thana and Tahsil and District Raigarh (Chhattisgarh), 1 *-' v*^^'v-'w CLAIMANTS 5^Smt. Geeta Smgh, wife of cy Shatrughan Singh, aged 30 years, Occupation Motor Traming work, resident of Gandhi Nagar, Orrisa Road, Raigarh, Tahsil and District Raigarh (Chhattisgarh). NON-APPLICANT N0.1 APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT. (Claim in appeal valued at Rs. 1,62,0007- and C.F. paid at Rs. 15/-) HIGH GOURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, IVI. A. (0 No.206 of 2009 APPELLANT United India Insurance Company Ltd. RESPONDENTS Versus Shatrughan Lal Bareth and others. -"^ --••'. ' - - ORDER For Pronouncement of Order 12-^)1.2011 Sd/- R.L. Jhanwar Judge ^i-*'«s^wy^^^^issg8s^^^ vss^^^^^^^^s^ ^ E^^'^^S^ f ' • •"- ^•^- ,ir .^' ? %;-.<-3& 1 < ^'ys% 1 Y <-to<^' s<lA^ ~~-~^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M. A. (C) No. 206 of 2009 APPELLANT (NON-APPLICANT-2) RESPONDENTS United India Insurance Company Ltd. Branch Office Shanti Palance, Chakradhar Nagar Chowk, Raigarh, Tahsil and District Raigarh (C.G.) Versus 1. Shatrughan Lal Bareth, son of Late Khikram Bareth, aged about 38 years, 2. Smt. Yashoda Bai, wife of Shatrughan Lal Bareth, aged about 35 years. 3. Minor Bhola, son of Shatrughan Lal Bareth, aged 15 years, 4. Minor Hazari, son of Shatrughan Lal Bareth, aged about 12 years. , Respondent No.3 and 4 (wrongly written respondents No.2 and 3) being minor through their natural guardian father Shatrughan Lal Bareth, son of Late Khikram Bareth, Occupation Mazdoori, Caste Bareth, resident of Bagh Talab, Murga Path, Circuit House Road, Raigarh, Thana and Tahsil and;»District Raigarh (Chhattisgarh) Claimants 5. Smt. Geeta Singh, wife of Shatrughah Singh, aged 30 years, Occupation Motor Training Work, resident of Gandhi Nagar, Orissa Road, Raigarh, Tahsil and District Raigarh (Chhattisgarh) : ' Non-Applicant No.1 APPEAL UNDER SECTION 173 OF THE WIOTOR VEHICLES ACT, 1988 Appearance: Shri H.B.Agrawal, Senior Advocate with Shri Pankaj Agrawal, counsel for the appellant. • ; Shri P.P.Sahu, counsel for respondents No.1 to 4. ShriAniitSharma,counselforrespondentNo.5 ' ORDER (Passedon^2?01.2011) ^f, ,-^... i /./ ^z- This is an appeal by the United India Company Limited against the order dated 31.10.2008 passed by the 4th Additional Motor Accidents Claims Tribunal (F.T.C.) in Claim Case No.28/2008 whereby the learned Claims Tribunal hasawarded Rs.1,62,000/- as total compensation to the respondents No.1to 4 /claimants. 2. As against the compensation of Rs. 13,72.500/- claimed by the claimants / respondents No. 1 to 4 by filing a claim petition under Section 166 of the Motor Vehicles Act for the death of Kapil Kumar, son of respondents 1 & 2, in the motor accideht occurred on 15.4.2008, the learned Tribunal, on close scrutiny of the material available on record and submissions made beforeit, awartfed Rs.1,62,000/- astotal compensation to the claimants / respondents No.1 to 4. The Tribunal while awarding such compensation, has fastened the liability to pay compensation on the insurer. It is this order, which is under challenge by the insurer. 3. Shri H.B.Agrawal, learned Senior Advocate with Shri Pankaj Agrawal for the appellant / insurer vehemently argued that :the offending vehicle in question i.e. Maruti Car bearing No. C.G. 13 ZD 1228 could not have been properly identified. According to F.1.R., the colour of offending vehicle is Cream colour whereas the offending vehicle/which was'seized, was in colour of algae i.e. moss green. Learned counsel further argued that the number ofoffehding vehicle has not been mentioned in'F.I.R. therefore, the vehicle which was seized was not involved in the accident. It was also argued that the offending vehicle was insured for private purpose and not for commercial purpose or any other purpoSe. On these premises, learned counsel urged that the appellant / insurer be exonerated from its liability. 4. On the other hand, Shri P.P.Sahu, learned eounsel for respondents No. 1 to 4 supported the award of the Tribunal and' argued that the insurance company has not able to prove as to whfether the said offending car was used for private purpose, commercial purpose or any other training purpbse, therefore; the award of the Tribunal is just and reasonable whereas ShriAmit Sharma, tearned counsel for respbndent No.5 argued that the vehicle was neither used for training purpose nor used for commercial purpose and the said vehicle was insured With the aaWMUB^5E» ^ insurance company / appellant, therefore, the insurance company is liable for payment of compensation. 5. In this case, the only point that remains for consideration is whether the vehicle, which was insured with the appellant / insurer, was used for commercial purpose i.e. motor training purpose and whether or not the vehicle insured with the insurer was the same vehicle. So far as the involvement ofthe said vehicle is concerned, no doubt in F.1.R. Ex.P.1, no complete number thereof was mentioned but colour of the offending vehicle is stated to be in Cream colour. It is also pertinent to mention here that owner of the vehicle i.e. respondent No. 5 - Smt. Geeta Singh did not enter witness box to rebut the evidence adduced by the other parties, therefore, on the basjs of evidence adduced by the claimants - Shatrughan A.W.1, Smt. Gayatri A.W.2 wherein it has come that vehicle which was seized was involved in the accident, the learned Tribunal has rightly recorded finding that the seized vehicle bearing No. 1228 was involved in the said accident, in which, Kapil Kumar son of claimants has lost his life on 15.4.2008. 6. So far as the other point that the seized vehicle involved in the said accident was used for commercial purpose or any other purpose excepting private use, is concerned, it is clear that respondent No.5 Smt. Geeta Singh was the owner of the vehicle and her occupation is motor training work, as stated in claim petition and also in written statement filed by her, wherein she has stated that on 15.04.2008, the said Maruti Car was being driven by Jairam Yadav for training purpose to one trainee, who was also travelling in the said vehicle. This shows that the vehicle was used for training purpose but not for personal use. The owner i.e. Smt. Geeta Singh, in support of her pleadings in written statement and to coun.ter the evidence adduced by the claimants, did not enter the witness box also to rebut the evidence adduced on behalf of other parties. Thus, it is clear that the said Maruti Car was used for training purpose. According to insurance policy, the vehicle was insured for private purpose and not for commercial purpose. It shows that the said Maruti Car was being driven as against the terms and conditions of the policy. __--—— r ^^. (t 7. For the foregoing reasons, 1 am of the view that the learned Tribunal has erred in fastening theliability to pay compensation on the insurer. 8. Consequently, the appeal is allowed. The impugned award in so far as it relates to pay compensation by the insurer is liable to be and is hereby set aside to the effect that the insurer is exonerated from its liability. The compensation awarded by the learned Claims Tribunal payable to the claimants fully rests on the owner i. e. Smt. Geeta Singh. The appellant / insurer may initiate proceedings for recqyery of amount, paid by it, from the owner. No order as to costs. Sd/- R.L. Jhanwar Judge r- w .^^T^-'