^- 'T-v. ^ ^^^\.\^^^^^.^-^^^-^^^,^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. fC) No. <2^<? /2008 fD.B.) APPELLANT/ HNSURER') RESPONDENTS G_ 1. CUMMANTS 1& \.^ ....-•s^' ^""^^ .<y .a • -b<^ ^•••" Jational In^urance Company Limited, Through : Divisional Office, Akash Ganga Complex, Supela Bhilai, Tahsil & District Durg (C.G.) VERSUS Baratu S/o.Sukalu aged about : 45 years} Caste : Nishad, Occupation : Agriculturist Smt. Raiman Bai, W/o. Baratu Nishad,aged about : 40 years, Occupation : House Wife) Both are R/o. Village : Bundeli, Tahsil : Saja, Police Station : Dhamdha, Qistt. Durg (C.G.) r fDRIVER^ 3. Tikam S/o. Ramadhar, Caste : Nishad, Aged about : 28 years, Occupation : Driver, R/o. Village : Rano, Tahsil : Saja, Police Station : Dhamdha, Distt. Durg (C.G.) <dG^l/. ^ 1 Owner G- 4. /' Smt. Tara Jain, Wd/o. Late Lunkaran Jain, R/o. Village : Gadadih, Tahsil :Saja, Police Station : Dhamdha, District : Durg (C.G.) 5. plN^^^ Rajendra Yadav S/o. Vijay Yadav, aged about : 40 years, R/o. Village : Gadadih, Tahsil : Saja, Police Station : Dhamdha, District : Durg (C.G.) MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988 / ^ / HIGH COURT OFCHHATTISGARH, BILASPUR CORAM: & APPELL/VNTT RESPONDENTS Hon'ble Shri I. M. Quddusi, Hon*ble Shri G. Minhajuddm, JJ. M. A. (Cl No. 927 of2007 Divisional Manager, National Insurance Company Ltd. Versus Madarilal and others (Smt. Jhallar Bai - deleted) Shri Raj Awasthy, counsel for the appellant. Smt. Renu Kocher, counsel for the respondent No.4. Smt. Sudha Aganval, counsel for the respondent No. 5 & 10. None for the other respondents. M. A. (Cl No. 928 of 2007 APPELLANT Divisional'Manager, National Insurance Company Ltd. Versus RESPONDENTS Chameli Bai and others. .Shri Raj Awasthy, counsel for the appellant. Smt. Renu Kocher, counsel for the respondent No. 4. Smt. Sudha Agarwal, counsel for respondent No. 5, None for the other respondents. AND APPELLANT M. A. (Cl No. 276 of2008 National Insurance Company Ltd. Versus RESPONDENTS Baratu and others. Shri Raj Awasthy, counsel for the appellant, Shri B. P. Singh, counsel for respondents No. 1 85 2. Smt. Renu Kocher, counsel for the respondent No. 4. None for the other respondents. ^ O RD E R (Oral) (Passed on this 1st day ofJuly, 2011) Per I. M. Quddusi, J. The aforementioned three appeals (M. A. (C) Nos. 927/2007, 928/2007 and 276/2008) are being decided by this common order as they arise from one and the same accident occurred on 6.4.2005 by the vehicle - Swaraj Mazda, bearing registration No. C.G. 07-C/0962. The facts in brief are that on 6.4.2005 Jaitram, Kejuram and Bhagwat Nishad were returning from Jamul to village Bundeli by the vehicle, bearing registration No. C.G. 07-C/0962. On the way, near village Basin due to rash and negligent driving of the driver ( Tikam), the vehicle turned turtle. As a result of the accident Jaitram, Kejuram and Bhagwat Nishad, who were occupants of the vehicle, died on the spot. The offence relating to the accident was registered in the police station Jamul at Crime No. 98/2005 under Sections 279, 337 and 304(A) of the Indian Penal Code. The vehicle was owned by thenon-applicant No. 2 (Smt. Tara Jain) and it was insured by the non-applicant No.3 (The National Insurance Coinpany Ltd.). The legal heirs of Jaitram filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of a- total compensation of Rs. 70,40,000/-. Learned Claims Tribunal by award dated 13.4.2007, passed in Claim.Case No. 36/2006 ( Smt. Jhallar Bai 85 others Vs. Tikam 85 others) (M. A. (C) No. 927/2007 - Divisional Manager National Insurance Company.Ltd. Vs. Madanlal & others) awarded a sum of Rs. 4,89,000/- as compensation, holding the Insurance Conxpany (non-applicants No.l to 3) as liable to pay the amount of compensation. ^ 8. The legal heirs of Kejuram filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 44,00,000/-. Leamed Claims Tribunal by award dated 13.4.2007, passed in Claim Case No. 37/2006 (Chameli Bai 85 others Vs. Tikam & others) (M. A. (C) No. 928/2007 - Divisional Manager National Insurance Company Ltd, Vs. Chameli Bai & others) awarded a sum of Rs. 5,65,000/- as compensation, holding the Insurance Company (non-applicants No.l to 3) as liable to pay the amount of compensation. The legal heirs of Bhagwat Nishad filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of compensation. Learned Claims Tribunal by award dated22.6.2007, passed in Claim Case No. 225/2005 (Baratu 8s others Vs. Tikam 85 others) (M. A. (C) No. 276/2008 - National Insurance Company Limited Vs. Baratu & others) awarded a sum of Rs. 3,83,500/- as compensation, holding the Insurance Company (non-applicants No. 1 to 3) as liable to pay the amount of compensation. Since all the parties have been served except the driver (Tikam), who is not a necessary party, therefore his appearance is dispensed with. We have heard learned counsel appearing for the parties and perused the lower Court records available in all the three appeals and found that the vehicle in question was Swaraj Mazda and the insurance policy was 'Goods Carrying Commercial Vehicle(Open) Policy 85 Package'. The deceased were travelling therein as gratuitous passengers. There was no seating oapacity in the vehicle and the deceased were sitting on the open side of the vehicle called as 'dala' (STcTT') and thus there was breach of the policy condition and hence the Insurance Company could not have been held as Uable to pay the ^ amount of compensations awarded in the afore-stated three claim petitions. 9. In view of the foregoing, we allow all the three appeals and exonerate the insurance company from its liability to pay the amount of compensations. However, it will be open to the claimants to. realize the amount of compensations from the owner of the vehicle. No order as to costs. 10. If any amount has already been deposited the same shall be refunded to the Insurance Company and if already paid to the claimants then it would be for the appellant Insurance Company to realize the same from the owner of the vehicle. r— Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge Thakur