IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR 1^ / fC.G.) MISCELLANEOUS APPEAL (C) NO.%H OF 2010 8tofll©VmfS APPELLANT ^/Sagar Hirani, S/o Ganesh Hirani Sindhi, aged about years, R/o Colony Bemetara, Police Station Bemetara, District Durg (C.G.) VERSUS N-ON-APPLICANTS: r ...-^ 10 /^•" \\yA^/..-'i ^%<p" y'^''.A'f ^••yA ^'•^ ^^•"" ^° 2. /• >• Himanshu Chourasiya (Tamboli) S/o Dinesh Tamboli, aged about 5 years, R/o Dadhi, Police Station Dadhi, Tahsil Bemetara, District Durg Minor Through Natural Guardian Mother Aasha Tamboli, W/o Dinesh Tamboli, Smt. Aasha Tamboli, W/o Dinesh Tamboli, aged about 25 years, R/o Dadhi, Police Station Dadhi, Tahsil Bemetara, District Durg (C.G. Bhartichand, S/o Narendra Singh Jatav, aged about 37 years, R/o Nayapara, Bemetara, Tahsil Bemetara, District Durg (C.G.) (Driver) National Insurance Company Limited, Gil Complex Near Gurudwara, Station Road, District Durg (C.G.) Claimed before Tribunal Amount awarded by the learned Tribunal Claimed in this Memo ofAppeal @ ^^- : Rs. 2,19,000/- ^-" : Rs. 11,000/- : Rs. 11,000/- MISCELLANEOUS APPEAI UNDER SEFTTON 173 OF THE MOTOR VEHICLES ACT, 1988 ^ mG&COURT OF CHHATTISGARH AT BDLASPUR §sB: Hon'MeShriPrashantKumarMarfura Cc^ Misc. Appcal No. 387/2010 APPELLANT NON-APPLICANTS SagarHirani Versus Himanshu Chouraatya and Ors. Appeaiance: Shri P.P. Sahu, counsel for tiie appellant. ORALORDER (23.06.2010) This appeal by the owner of tiie offending vehiele has been preferred on Ae ground that leamed Tribunal has eommitted serious error oflaw by exonerating the Insurance Company fi'om the Uability of payment of compensation as weB as on th©ground that in any case, the Tribunal should haw held that it is a case of contribirtoty negligence and skould have apportioned the liabiUty of payment of compensatian on the vehicte belongiag to Ae aj^ellant as well as on the motor vehicle on whfoh the claimants were traveling. (2) By the impugned award Ifae leamed Claims Tribunal has held thattiie claitnants are eatitled to Rs.11,000/- as compensation. (3) The offending vehicle i.e. the vehtele belonging to the owner is a goods carrying three wheeler and thus is a tran^ort vehiele. Relying on the judgment of the Supreme Court in Nattonal Insurance Conpany Limited Vs. AnnaH»aIrappa Nesaria (2008) ^ <r'"'^ '^ 1 '"^ I '^. .y .^ '%.yt"r-"f~"^ ;''5-^,^': 2- 3 SCC 464, Shri Sahu, leamed eounsel for the appellant submits Aat since in the present case, the driver was having a valid drivmg lieense to drive a light motor vehicle and tfae fhree whcelw auto is atso a Ught motor velucle, the Insurance Company should have bwn made liable for payment ofcompensation. (4) The judgment in the case of Nattonal Insurance Conpai^ Unrfted Va. Amiappa lyappa Ncsaria (supra) has subsequently been considered and distinguished by fhe Hon'ble Supreme Court in the case of Orteital Insurancc Con^any Ltd. Vs. An^id Kol & Ors. reported in 2009 AIR SCW 2747. In the said ease, the Hon*ble Supreme Court has held that tfaere is distinction betwwn *light motor vehiele' and 'transport vehicle' and that a tran^ort whwle may be ttght motor vehick, but for the purpose ofdriving, a definite liecnse is required to be obtained for transport whicle. (5) The word 'transport vehiGte' has becn defined under swtion 2 (47) oftheMotor Vehicles Act 1988, it meims a puUic serviee vehicle, a goods cwriage, an educational institutioa bos or a private service vehicle. 'The word *goods camage* has been defined under section 2 (14) of the act to mean any motw vdiiele coastructed w adapted for use solely for Ae carriage ofgoods, or any motor vchicl® not so constiucted or adapted when used for tfae camage ofgoods. (6) Qn a reading ofthe definition oftfae word 'tranjsg)ort whiete' it /would clearly sppwa tiiat a goods eamage has been inchided in th® -..>, .-;^:~^ '-..•y ""-V -- -3 - ^ definition of the fransport vehiele. Undispiitedly the three wheeler auto involved in tiiis case is a goods earriage as held by Ifae Tribanal in para 10 ofthe award. (7) Thus, Ae judgment of the Suprem®Court in the case of Oriental Iiisurance Company Ltd. Vs. Angad Kol & Ors. (supia) would be squarely applicable and the teamed Tribuiwrf has not committed any error by exonerating the hisurance Company from the liability ofpayment ofcompensation. (8) The next argument of the leamed counsel for the a^ellant is that in any case it was a case of contributoiy negligenee, as two vehicles were involved. According to him, the lcamed Tribunal should have apportioned the Kability. (9) On perusal ofthe impugned award, it would be seen that this ground of contributory negligence has not been raiscd by the appellant before the Tribunal. On perosal of tiie applicanfs reply before the Claims Tribunal also it would appear Itert no such plea of contributory negligenee even as an ahffl-native pleading has been raised therein. (10) Since no plea has been raised, tfais court is unable to accept the eontention raised by leamed counsel for the appellant. (11) There is no substance in this appeal, whieh feils and is herei?y dismissed. Sd//- Prashant Kumar Mishra Judge \