BEFORE THE HIGH COURTOF CHHAmSGARH AT BILASPUR M. A (Cl ,A?^/2009 APPELLANT (OWNER) .ft8-"". -*;•^\^w ^.^ ^•^. ^^ 1^' V&v-d..--" VERSUS Mahendra Singh Hora S/o Nindar Singh Hora,A<3«=f32-^ Bhanpuri, Ring Road No.2, Raipur (G.G.) (Owner of vehicle) RESPONDENTS /fCLAIMANTS) l... ./-' Smt. Anita Sahu, w/o Late Surehdra Kumar Sahu, Aged about 28 years. /2. Kumari Duleshwari, D/o, Late Surendra Kumar Sahu, Aged about 9 years. 3. Kumari Devkt, D/o, Late Surendra Kumar Sahu, Aged about 7 years. 4; Kumari Roshni, D/o, Late Surendra Kumar Sahu, Aged about 5 years. ^5. Lalkrishna, S/6, Late Surendra Kumar Sahu, Aged about 3 years. (Respondents no.2 to 5 Minors through Mother — Respondent no. 1 Anita) 6. Milan, S/o, Fagwa Sahu, Agedabout 50 years. /- ,,7. Dukhni Bai, w/o, Milan Sahu, Aged abouf 48 years, All Residents of Village Bhibonri, Tehsil 85 P.S. Berla, District- Durg (C.G.) •4' DRIVER 8. INSURANCE COMPANY Avinash Kumar Yadav, S/o Chaitram Yadav, Aged about 27 years, Occupation- Dnver, R/o Village - Tiraiiya, Police Station - Beruetra, District DurgfC.G.) (Driver) I.C.I.C.I. Lombard Insurance Company Ltd., Indian Coffee House, Second Floor, Near Raj Talkies, Raipur (C.G.) (Insurance Company) w^ ^-J. APPEALUNDER SECTION 173 OF_THEMOTOR VEHICLES ACT -S'^S^^^SKilf'f.^ 1-, HIGHCOURT OFCHHAtTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal (C.) No.1037 of 2009 Mahendra Singh Hora versus Smt. Anita Sahu and others ORDER FOR CONSIDERATION '/- m prashant Kumar Mishra Judge Hon'ble Shri I.M. Quddusi. J.: ^ ^ i\ SA'- I.M.Quddusi Judge Postfor ^-02-2011 Sd/- Prashant Kumar Mishra Judge ..^•' %. ai '"•&te.... '\^i!f '^s^ss^' HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri JustLce Prashant Kumar Mishra Appellant Miscellaneous Appeal (C.) No.1037 of 2009 Mahendra Singh Hora versus Respondents Smt. Anita Sahu and others Present: Ms. Farah Minhaj, counsel for the appellant. Shri S.P.Sahu, counsel for respondents No.1, 6 and 7. Shri Amrito Das, counsel for respondent No.9. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act ORDER (Passed on i^ February, 2011) <Per <Praslia.nt 'KumarMisK.ra, J.: The present appeal under Section 173 of the Motor Vehicles Act, 1988 (henceforth 'the Act') has been preferred by the owner of the vehicle, truck bearing registration No.CG 04 JA 8163, assailing the award dated 21-4-2009 passed by the Additional Motor Accidents Claims Tribunal (F.T.C.), Bemetara granting compensation of Rs.4,55,000/- to the claimants/respondents No.1 to 7 on their application under Section 166 of the Act. The Claims Tribunal has absolved the insurance company from liability of satisfying the award. 2. Facts of the case, as narrated in the claim petition, in short, are that the deceased along with other Hammals were returning to ^Village Siltara from Akoli Road after unloading fertilizer on 6-6-2008 'lr- and when the vehicle reached at Gidhauri Road, the driver of the vehicle respondent No.8 Avinash Kumar Yadav drove the vehicle in rash and negligent manner, as a result of which, the deceased came into contact with an overhead electrical wire and died because of electrocution. An offence under Section 304A of the Indian Penal Code was registered against the driver. According to the claimants, the deceased was working as Hammal and was earning Rs.200/- per day. On account of death of the deceased, the daimants lost the sole bread winner of the family, therefore, they claimed total compensation of Rs.20,35,000/- on various heads. 3. The owner and the driver denied the accident as also the income of the deceased. As the vehicle was insured, the said owner and the driver further stated that the liability for payment of compensation is that ofthe insurance company. 4. The insurance company/respondent No.9 herein denied its liability on the ground that 8 persons were travelling in the vehicle, which is contrary to the terms of the policy and that the present is not a case of motor accident but the deceased died because of electrocution. 5. The learned Claims Tribunal has found that the accident took place while the motor vehicle was in use and the deceased was working as Hammal and his monthly income was Rs.2,500/-, yearly income Rs.30,000/- and after deducting 1/4th on his personal expenses, the loss of annual dependency has been calculated at lRs.22,500/- and after applying multiplier of 18, the total loss of /^> dependency has been calculated at Rs.4,05,000/-. After awarding compensation on other heads, the total compensation awarded by the Claims Tribunal is Rs.4,55,000/-. However, the learned Claims Tribunal, while deciding issue No.5, has found that the vehicle was driven committlng breach of termsof the policy of insurance and as such the insurance company is not liable to satisfythe award. 6. Learned counsel appearing for the appellant/owner has argued that the Claims Tribunal was not correct in holding that the deceased was travelling in the Da/a of the vehicle and since the deceased was covered as a Hammal under the policy of insurance, the learned Claims Tribunal should have fastened liability of payment of compensation on the insurance company also. It has also been argued that the amount of compensation awarded is on higher side. 7. On the other hand, learned counsel appearing for respondent No.9/insurance company has argued that from the statementof eye- witness AW-2 Kashiram Dhiwar, it is proved that the deceased was travelling in the Da/a and since the offending vehicle was a goods vehicle in which sitting/travelling in the Da/a is not permitted, there is clear breach of the terms of the policy of insurance as the policy does not cover any person who is sitting in the DalS. 8. AW-1 Anita Sahu is the widow of the deceased. In paragraph 4 of the deposition, she admits that her husband was sitting on the \Dala and died because of electrocution. It is not in dispute that the ieceased came into contact of a live overhead electrical wire and '^ died of electrocution. AW-2 Kashiram Dhiwar has stated that no goods were loaded at the time of accident and that he was sitting in the cabin along with the driver and helper. From his statement, it is clear that the deceased was not sitting in the cabin but was sitting in the Dala. Thus, the finding that the deceased was sitting in the Dala is clearly born out from the evidence available on record. Even otherwise, if a person is sitting in the cabin of a truck, which is the covered portion, there would not have been any occasion for a person sitting in the cabin to come into contact of a live overhead electrical wire and for this reason also the argument advanced by learned counsel for the appellant that the deceased was sitting in the cabin and not in the Dala is unacceptabte. Thus, from the statement of the claimants' witnesses themselves, it has been proved that the deceased was sitting in the Da/a and the insurance company was not required to led evidence to prove this fact which is already established from the statements of claimants' witnesses. 9. The insurance policy Ex.D-1 mentions the carrying capacity as 3 persons and the vehicle is insured as pubtic carrier. The policy covers the paid driver, the owner driver and separate premium of Rs.50/- has been paid for cleaner/conductor/coolies though it has not been mentioned as to number of coolies covered but since premium of Rs.50/- is paid, it can be inferred that. apart from driver one cleaner/one conductor and one coolie were covered and these are the 3 persons who were permitted to occupy the vehicle in its cabin as the carrying capadty of the vehicle was 3 persons. In the '6lause timitations for use, it is stated that the policy does not cover /•^"-^, ^y / ^gfi"^ use for carrying passengers in the vehicle; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of the Workmen's Compensation Act, 1923. Reading together the liability as well as the limitations for use clause in the policy of insurance, it would appear that the policy covered one cleaner-or conductor and one coolie as passengers in form of employees. 10. The issue now to be examined is whether such coolie who was sitting in the Da/a of the goods vehicle is covered under the policy. Learned counsel for the appellant has argued that since the policy does not specifically provide for sitting in the Da/a is prohibited and since one coolie is covered in the policy, there is no breach of the terms of the policy of insurance, however, learned counsel for the insurance company has vehemently argued that since the only place where the driver, cleaner/conductor, and coolie are allowed to occupy the vehicle as employees, is the cabin of the vehicle and not the Da/a, which is used for loading/keeping of goods and not for sitting. According to learned counsel for the appellant if the deceased would have occupied and remained seated inside the cabin, there would have been no occasion to come into contact of the live overhead electrical wire and as such his sitting in the Dala itself has caused the accident and the breach of the terms gf the policy of insurance is apparent. ' 11. In National Insurance Co. Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700, the Hon'ble Supreme Court has held that the ferms of the policy has to be construed as they are and there is no £•' tf l' ^ • ''•' r^ scope for adding or subtracting anything. However, liberally the policy may be construed, such liberalism cannot be extended to permit substitution ofwords which are not intended. 12. In National Insurance Co. Ltd. vs. Baljit Kaur and others, (2004) 2 SCC 1, the Hon'ble Supreme Court has held that having regard to the definition of goods carriage vis-a-vis public service vehicle, it is clear that goods carriage carrying any passenger is not contemplated under the Act as the same must be used solely for carrying the goods. Thus, any person travellingin a goods vehicle either as passenger or otherwise is not covered under the policy of insurance and the insurance company is not liable to indemnify the award. 13. Yet again, while considering liability of insurance company in respect of owner of goods or his authorised representative travelling in a goods carriage, the Hon'ble Supreme Court, in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others, (2008) 1 SCC 423, has held in paragraph 19 of the report that the owner of the goods means only the person who travels in the cabin of the vehicle. Thus, applying the same principle and particularly when in the present case, no goods were loaded in the vehicle at the time of accident and the only place provided for sitting of the driver, cleaner/conductor and coolie, is the cabin of the vehicle, sitting in the Dala was not permitted as Da/a is only used for loading/carrying of goods and not for sitting either as cleaner/conductor or coolie or the owner of the goods as held by the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others (supra). 14. Learned counsel appearing for the appellant has relied on Royal Sundaram Alliance Insurance Company vs. Lakhan Lal and others, 2008 (1) CGLJ 204 and Smt. Rambati Madiya and others vs. Budanti @ Danteshar Rao and others, 2008 (3) CGLJ 413 (DB). However, in view of the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others (supra) as also because of the definition on facts, the said judgments are not applicable in the facts of the present case. 15. Learned counsel for the appellant has also submitted that the amount awarded by the Claims Tribunal is excessive, however, there is no substance in the argument because as against the submission made by the claimants that the deceased was earning Rs.200/- per day, the learned Claims Tribunal has held that the deceased was earning Rs.100/- per day. The Claims Tribunal has also taken 25 working days in a month to further reduce the monthly income from Rs.3,000/- to Rs.2,500/-. The deceased was aged abqut 30 years and the number of claimants is 7. For personal expenses ofthe deceased, the Claims Tribunal has deducted 1/4 of his monthly income, whereas the Hon'ble Supreme Court in Sarla Verma (Smt) and others vs. Delhi Transport Gorporation and another, (2009) 6 SCC 121, in paragraph 30 ofthe report, has held that where the number ofdependent family members is more than 6, the deduction for personal expenses of the deceased should be V5th. 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Thus, for all the above reasons, the argument advanced by learned counsel for the appellant is not acceptable and the quantum of compensation awarded by the Claims Tribunal needs no interference. 16. The miscellaneous appeal fails and is hereby dismissed. There shall be no order as to costs. !/- SA'- 1-M.Quddusi Judge Prsshant Kumar Mishra Judge