^.. INTHEHONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C)No. )o[7 OF2008 (APPEAL VALUED AT Rs 4.42.000 /-) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988. APPELLANT (NON- APPLICANT N0.1) ^M.:;.%- RE8PONDENT8 :1. (APPLICANTNO.D ^ (APPLICANT N0.2) (APPLICANTN0.3) :2. :3. (NON-APPLICANT N0 1) ^4- (NON-APPLICANT N02) f^ :5. United India Insurance Company Limited,Through :Its Divisional Manager, Divisional- Office, Krishna Coinplex, Ist Floor, Kuchery Chowk, Raipur VERSUS Laxmi Bai, Wd/0- Vishnu Gond, Aged-30 years, Sunny, S/O-Late Vishnu Gond, aged-5 years, Geetu, D/0- Late Vishnu Gond, aged about 3 years. Respondent no.2 85 3 are minor through-Their Mother-Laxmi Bal^ {Respondent no.l) All are residence of Village- Arkar, P.S. Gurur, Tah.- Balod, Dist. Durg (C.G.). Santosh Kumar Patel, S/0- Luduram Patel, aged- 25 years, ^ R/0- village Arkar, P.S. Gurur, Tah.- Balod, Distt.- Durg (C.G.) Thaluram Devangan S/0- Ramhu, R/0- Village- Arkar, P.S.-Gurur, ^ Tah. -Balod, Distt.Durg (C.G.), (Owner ofvehicle). HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M. Quddusj and Hon'ble Shri Justice Prashant Kumar Mishra Appellant Miscellaneous Appeal (C.) No.1019 of 2008 -« United India Insurance Company Limited versus Respondents Laxmi Bai and others Present: Shri Dashrath Gupta, counsel for the appellant. Shri C.R.Sahu and Shri Anil Das Kuldeep, counsel for respondents No.4 and 5. None for other respondents. Miscellaneous Appeal under Section 173 ofthe MotorVehicles Act ORAL ORDER (Passedon 18th March, 2011) Per I.M. Quddusi, J.: Heard. 2. Thisappeal has been preferred by the United India Insurance Company Limited challenging the award dated 29-1-2008 passed by the Additional Motor Accidents Claims Tribunal (F.T.C.), Bemetara, District Durg in Claim Case No.2/2007. 3. Case of the claimants, as stated in the claim petition, is that on the date of accident, i.e., 28-6-2005, at about 8 P.M., deceased Vishnu, accompanied by his wife and children, was going from Village Arkar to Ranveerpur Charbhantha in a Mahindra Marshall Max bearing registration No.CG 05 A 6195, being driven by non- claimant Santosh Kumar Patel. On Village Deokar Saja Road, near Kachari turning, the Mahindra Marshall Max was driven rashly and ^ l%e ^ negligently and dashed with a Babool tree. As a result of the accident, the deceased sustained injuries on his person and died on the spot. The incident was reported to the Police Station Saja, District Durg. The claimants, i.e., wife, son and daughter of the deceased preferred an application under Section 166 of the Motor VehiclesAct, 1988 (henceforth 'the Act') claiming compensation of Rs.13,32,000/-. 4 . The Claims Tribunal awarded compensation of Rs.4,42,000/- in favour of the claimants. The non-claimant/insurance company was ordered for payment of the amount of compensation and recover the same from the non-claimant/owner of the vehicle Mahindra Marshall Max. 5. The Claims Tribunal has ordered to the appellanVinsurance company for pay and recover, however, the Claims Tribunal has held that the occupants of the private vehicle Mahindra Marshall Max were not passengers and they were also not insured. This finding is perverse to our opinion as in the F.1.R. itself it has been mentioned that the vehicle was taken on hire though it was a private vehicle yet it was being used on hire basis. Lodging of the F.I.R. has been admitted by the witnesses and hence the F.I.R, is to be read in toto not in part, therefore, the part of the F.I.R., in which it has been mentioned that the vehicle was taken on hire, cannot be ignored. Therefore, since the insurance policy was a package policy for private vehicle and the vehicle was being used as a taxi, there was certainly breach of conditions of policy of insurance and hence, the insurance company was not liable to pay the compensation. '-^s^- •^s^s; 6. The order of pay and recover is also erroneous because there is no law in this regard except the principle laid down by the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh and others, (2004)3 SCC 297, in which the Hon'ble Supreme Court has held that in casesinvolving third party claims the insurance company should be directed to deposit the amount and later on recover it from the owner as it is ordinarily difficult for the claimants to recover the amount from the owners. The present is not a case involving third party claim, therefore, the principle laid down by the hlon'ble Supreme Court in Swaran Singh's case (supra) would not be applicable to the instant case. 7. Therefore, we allow the miscellaneous appeal and set aside the part of the impugned award by which the insurance company has been directed to pay and recover. The claimants shall recover the amount of compensation from the owner of the vehicle Mahindra Marshall Max. If any amount has already been paid by the insurance company to the claimants, it will be open for the insurance company to recover the same from the owner of the vehicte Mahindra Marshall Max. There shall be no order as to costs. Gopal Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge