IN THE HON'BLE mGH COURT OF CHHATTISGARH AT BILASPUR ?iVi@ic^p ^s'^iic?r APPELLANT RE3PONDENTS Misc.Aopeal fC} N0. MA7 /2011 HDFC ERGO General Insurance Company ,--; Limited, through Manager, HDFC ERGO -fnl^^^'"1" General Insurance Company Limited, .^y*' Devendra Nagar, Raipur, Thana Devendra Nagar, Raipur, District Raipur, Chhattisgarh (INSURER) VERSUS 1) -Smt. Sandhya Nishad, widow of Late Ganeshram, aged about 24 years 2) Harsh Kumar Nishad, S/o Late Ganesh Ram Nishad, aged about 3 years Respondent No. 2 Minor through Natural Guardian Mother Smt. Sandhya Nishad 3) Smt. Dhan Bai, W/o Lae Sukhiram Nishad, aged about 65 years All are resident of Kamlesh Industries Steel, Shiv Bajrang Mandir, Ramsagarpara, Thana Azad Chowk, Raipur, Chhattisgarh (CLADVtANTS) 4) Dhanesh Kumar Nishad, S/o Late Sukhi Ram, aged about 22 years, resident ofVillage Mansa, Thana Dharsewa, District Raipur, Chhattisgarh (DMVER) 5) Neelmani Sahu, S/o D.R. Sahu, resident of Koteshwar Nagar, Kota, Thana Aamanaka, Raipur, Chhattisgarh (OWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED^BYACrOFL1994 5'! f &*, ;,,IA ADoeiiants Vs HbFC ER.60 ©eneralInsurance C'o. Ltd. Smt. Sandhya Nishad & o1+iers Mr. Sachin Singh AAr. P.AA. Srivas, AAr. Afflit Kumar, Rajput, Advocate for the appellant. for respondents No.l to 3. ite for the respondents No.4 & 5. .»«.^TTS "^ 2Gir 1. Heard. 2. This is insurer'sappenl questioning the liabiiity only. 3. By way of this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act'), the appellant-Insurance Company hcs impugned the awo.rd dated 08.10.2010 passed by the learned 2"" Additional AAotor Accident Claims Tribunal, Raipur (C6) (forshort 'the Claims Tribunai') in Ciaim Case No.39/2010 awarding a compensation of fts.4,45,000/- to the claimants and fcstening liability on the appellant herein. 4. Facts of 1+ie case, in brief, are that the claimants, who are widow, son and mother of deceased ©oneshram,have fiied o. claim appiication before the Ciaims Tribunal seeking compensation to the tune of Rs.7,18,000/- for the death of said (Saneshram in a motor accident which took place on 28.3.2009 at about 8.30 p.m. in the night, when the vehicle bearina registration number C604-JB-3701,~in which the deceased was traveiiing, ha's met with an accident wi1ti an unknown vehicle. The claimants ciaimed compensation on the ground that they were dependent on the deceased. who wo.s the sole earninq member in the family. and due to his death, they have suffered loss of income. s. Learned counsel for the appellant has-submitted that the vehicle wo.s plied in breach of insurance policy as the deceased was travelting in 'STcTT where the goods were loaded and which infact was not the place of sitting. i- ^f^ 2 6. On -t+ie other hand, learned counsel for the respondents have supported the impugned award. 7. We have heard learned counsel for the parties and perused the records of the Tribunal as aiso the findings given in the impugned award. In the matter of National others reported in AIR 2i that the owner of the cabin of the vehicle. sC 484 the Hon'l means only the Suoreme Court has i who travels in 9. In the instant co.se, it is evident f.rom the statement of Chhotelal (AW-1) that the deceased was sitting along with the goods at the piace whe.re the goods was kept and he was not travelling in the cabin of the vehicte. However', the Ctaims Tr'ibunal has not taken into consideration •t+ie evidence of this witness and held the appelbnt Insurance Company iiable to indemnify 1+ie owner of the vehicle in respect of death of the deceased, which is not proper. 10.In the result, we nllow the appeal, set aside the impugned award, so far as it relates to fastening of liabiiity upon the appsilant Insurance Company. exonerate •rfie qapellant from its iiability to pay compensation to the claimants for the death of deceased ©aneshramanci hoid that the owner and driver of the vehicle-in-question are jointly & severally liabie for t'ne payment of compensation to the claimants. However, if the amount deposited by the appellant herein has been disbursed to the claimants, the same shall not be recovered from them and it wiil be recovered from the qwner and driver of the vehicle in question. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge r..