"H^tt'Sf^^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) ^ C^ M.A. No.3M'Z/2003 Singl* Btflc^ ../" Appeal U/s lY3ofthe MotorVehideAd 1988 (Appeal valued of Rs. f;t)0,000/-) AppellanVNon applic&nt No.2 ^*' ^r' c. TheNewlndiaAssurance Com pany Ltd. through its Branch Manager Danipara Road, Raigarh (C.G.) y~ .\.»'^-•••' .<'-"rc3^3>"' VERSUS ^•t\'»l'3^'"' <>•'^^••' . -. ..- .. -. . /-- • ^•<"~ ^"Respondent No.l/ApplicantNo.1 /Ghasiram S/o Bodhi Kanwar ^^ Q ^ aged 45 years Agriculturist < Responderrt No.1 B/Applicant No.2 Vrindavati W/o Ghasiram aged ^ -/' 40 years Agriculturist '' ~< BothR/oViTlageLatP.S.Chhal Tahsil - Dharmjaigarh Distt. Raigarh(C.G.) \ 15espondentNo.2/ /Non-Applicant No1 / ^'.' Q ^/'Bhagat Ram S/o Chandan Singh Rathia aged 45 years business- Tractor owner R/o Village JhagarpurTah. Gharghoda P.S. Lailunga Distt. Raigarh (C.G.) KSI K !i: •^ ';^1-: •Y' HIGHCOURT OFCHHATtlSG«RHATBILASPUR SinaleBench : Hon'bleShriDiliDRaosahebDeshmukh.J. Misc.ADpeal No. 342 of 2003 The New India Assuranee Company Ltd. Versus Ghasiram and two others Misc. Appeal No. 403 of 2003 i The New India Assurance Company Ltd. Versus Ramayan and twoothers Mjsc^AppealNo. 4J)Aof 2003 The New India Assurance Company Ltd. Versus Sahodra Bai and three others ORDER m Postfor 1-1-02-2008 Sdl- Dilip Raosaheb Deshmukh judge Appetlant Non-aDDlicant No.2 Misc. Appeal No.404of 2003 The New India Assurance Company Ltd. through its Branch Manager Danipara Road, Raigarh (C.G.) <:! Respondent No.lA ABplieantNo.1 ResDondent No.1B/ ADDlicant No.2 Respondent No.1 C/ ApDlicantNo.3 versus 1. Sahodra Bai widow of Anadiram Rathia, aged 26 years, housewife, R/o vHlage Jhagarpur, Tah.Gharghoda, P.S. Lailunga, Distt.Raigarh (C.G.) 2. Manoranjan S/o Late Anadiram Rathia aged Uyears. 3. Vjrendra Singh, S/o Late Anadiram Rathia, aged S years. ReSDondent No.2/ Non-aDDlicantNo.1 3. Respondents No.1 B & 1 C dependents minor through their naturat guardian Mother Sahodra Bai widow of Anadiram Bhagat Ram S/o Chandan Singh Rathia, aged 45 years bu'siness-TTactor owner, R/p Village, Jhagarpur, Tah. Gharghoda P.S. Lailunga Distt. Raigarh (C.G.) ~ Appeal UnderSection 173 of the Motor Vehicles Act, 1988 Preseht : Appeliant byShri N.K.Agrawal, SF.Gounsel with Shri Qamarul Aziz, Respbndents byShri H.S.Patel, iearned counse! ORDER (Passed onW^ of February,2008) Three, Miscellaneous Appeals No. 342/2003, 403/2003 and 404/2003 preferred by the insufance company against a common award dated 20.12.2602 passed in claim cases No. 48/99^ 49/99 and ;50/99 by 1 Additional Motor ACcidente Claims Tribtinal, Raigarh (C.G.) (hereinafter referred to as ttie Tribunal) are being disppsed of by thisorder. ;!i|i' /\6V f-V'1' ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, s.l, ADRellant Non-applicant No.2 Misc. AppealNo.342of2003 J» The New India Assurance Company Ltd. through its Branch Manager Danipara Road, Raigarh (C.G.) versus Respondent ADDlicantNo.1 Respondeht No.lB/ ADDlicantNo.2 Respondent No.2/ NQn-appijcant No.1 Ghasiram S/o Bodhi Kanwar,ged 45 years, Agriculturist Vrindavati W/o Ghasiram, aged 40 years, Agriculturist, Both R/o Village Lat P.S. Chhal, Tahsil - Dharmjaigarh, Distt. Raigarh (C.G.) Bhagat Ram S/o Chandan Singh Rathia, aged 45 years business-Tractor owner, R/o Viilage, Jhagarpur, Tah. Gharghoda P.S. Lailunga Distt. Raigarh |;I]I)1FI IB" tlitr" •III iaa "'lw Ap^)el|ant Non-apDlicant No.2 ResRondent ApRlicantNo.1 Respondent No.1 B/ AppljcantNo.2 Respondent No.2/ Non-applicantNo.l Misc. AoDealNo. 403 oT2003 The New India Assurance Company Ltd. through its Branch Manager DaniparaRoad, Raigarh (C.G.) versus Ramayan S/o Phooichand aged 35 years, Occupation - Agriculturist. Sukhmati W/o Ramayan aged 32 years Occupation House wife. Both Rrt Viliage Lat P.S.jChhai, Tahsil --Dharmjaigarh, Distt. Raigarh (C.G.) Bhagat Ram S/o Chandan Singh Rathia, aged 45 years business-Tractor owner, R/o Viiiage, Jhagarpur, Tah. Ghaighoda P.S. 1-^ilunga Distt. Raigarh ru 2. The following facts arenot disputed. A) On 22.12.1997, deceased-Anandi Ram was driving Tractor No.M.P. 26 E/0607 (henceforth,. the Tractor) and Trolley Np. M.P. 26. E/0608 (henceforth, the;-Trolley). Deceased - Shashi Kumar, aged 4 years and Birbal, aged 22years wer& traveling as passengers in the said Tractor. Near Village Kudharikhar - Bhursi seeing a bus speeding towards him from the front, Anadi Ram in order to give side brought the Tractor by the side of road and in that process thewheel of the Tractbr went into a pot hote and the Tractor and Trolley fell into a 20 feet deep diteh resulting in death of Anandi Ram, Birbal and Shashi Ktimar. B) Anandi Ram possessed avalid driving licenceto drive light motor vehicle which endorsement was made on his licence on 26.05.1994. € tiiil C) That the Tractor and Trolley were insured by the appellant-insuranGe company on the date of accident. D) . That Bhagat Ram Rathia, fatherof the deceased - Anadi Ram was the registered owner of the Tractor and- Trolleyand also the insured. 3) In all the three cases, it was npt pleaded that the accident had occurred due to any rash or negligent acton the part of Anadi Ram. In ciaim case No. 50Z99 Sahodra Bai A.W.2, widow of Anadi Ram, admitted in paragraph 5 that Shashi Kumar and Birbal were beingicarried in the Tractor as passengers for hire. In claim case No. 48/99, eye witness Ku.-Shanti A.W.3,iwho was travelling inthe ill-fated Tractor arid Trolley, a!so deposecl thatjhe accident was not due to any rashor negligent act on U.I 1X1 i!!f 'nii ill SeM }| •psjeAO? pu sem-ieu/fto aqi^o }|su souis-pv sagaitfSA Jolo|ft| SMI i° (l.) Zfrl. 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L|dej6iejed ui J94 Acl psieis SBM t| •uieyipBUV io yed 941 ^^ 17 % further urged that since the insurance company had, in pursuance ofthe order passed by this Court, deposited part of compensation with the Tribunal, and the same had also been disbursed to the claimants, the appellant—insurance cornpany should be given the right to recover the same from the owner ofthe Tractor and Trolley. 6) The respondenfowner - Bhagat Ram remained ex parte before the Tribunat. s.' '^ 7) Shri H.S. Patel, learned counsel for the respondents/ctaimants in all the appeals urged that evidence was led that Anadi Ram was a paid driver of Bhagat Ram and the insurance company had covered the risk of the driver by coUecting premium. It was also urged that Anadi Ram feli into the category of third party, and therefore, the Tribunal was justified in awarding the compensationagainst the insurance company in claim case No. 50/99. The arguments advanced by the learned counsel for the appeilant - insurance company in Misc. Appeal No. 342/2003 (claim case No. 48/99) and Misc. AppealNo. 403/2003 (claim case No. 49/99) were notopposed. 8) Having heard rival contentions, 1 have perused the claim cases No. 48/99, 49/99 and 50/99 with utmost circumspection. So far as the award passed in claim .case No.48/99 and claim case No. 49/99 is concerned, in view ofthe testimony pf Sahodra Bai A.W.1 (in claim case No. 50/99), widow of Anadi Ram and the testimony of Ku. Shanti A.W.3 in claim case No.48/99, it Is ciystal clear that Birbal.aged 22 yearsancl Shashi Kumar aged 4 years^jwere trave.lling on the enginfi of the Tractor as lll') IMii'r: . £^^^-i -^-' -^L-: n>°5 \. ^. passengers at the time of accident. The Tractor and Trolley were insured purely for agricultural purpose and not for carrying passengers. In view of the fundamental breach of policy of insurance, the Tribunai acted with illegality in fasteriing liability on the insurance company. 9} Misc.Appeat No. 342/2003and Misc. Appeal No. 403/2003, therefore, deserve to be and are accordingly atlowed and the insurance company is exonerated from payment of compensation. So far as the compensation paid by the appe!!ant - insurance company in pursuance of the order by this Court is concerned, it may recover the same from the owner of.the Tractor and Troiley, i.e., Bhagat Ram Rathiaon whom the liability te pay the entire compensation as orderedby the Tribunal rests. I _ . 1 10) So, far as Misc. Appeal No. 404/2003 is concerned, once the Tribunal came to a conclusion that Anadi Ram was driving the Tractor in the capacity 6f townerand notasa paid driver, the insurance company was not under any statutory iiabiiity to pay compensation since risk of the owner was neither required to be covered statutorily by the insurance company nor was actually covered urider the policy. Another important aspect to be noticed is that negligence of Anadi Ram, which is a sine qua non of a claim for compensation under section 166 ofthe Motor Vehicies Act, has neither been pleaded nor proved, In thisview ofthe matter also, the Tribuna! erred in awarding compensation in claim case No. 50/99 against the insurance company. Thereforej once the Tribunal recorded a finding that Anadi Ram was not a third party but was driving as the owner oT the Tractor and Trolley, the insurance cOmpany was not under any statutory liabU^ to pay-compensation either under Section 147 or under :!1'111 ssitlNliiff=s: 7 ^ s> Section 149 of the Motor Vehicies Act. In this view of the matter, Misc. Appeat No. 404/2003 also deserves to be and is allowed. The appellant— insurance company is not ligbie to pay any compensation in claim case No. 50/99. Compensation, if any, paid by the appellant - insurance company pursuant to order of this Court, may be recovered by the appellant from Bhagat Ram Rathia, owner of the tractor, on whom the liabilityto paythe entire compeinsation as ordered by the Tribunal rests. Sdf- Ditip Raosaheb Deshmukh Judge Anjani ii iKM-lIf-'M