G^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARHAT l^ ^ BILASPUR fC.G.1 ^G. M.A. fC 1 N0. /2009 I'o APPELLANT s.<te p^38'-'"' \......M-^ RESPONDENTS 2. 3. 4. 5. 6. Guruprasad Patel, S/o. Manbodh Patel, aged , about 37 years, Occupation-Driver and Agriculture, R/o. Village- Amlipali, P.S. Sariya, Tahsil Sarangarh, District Raigarh (C.G.) (DRIVER) VERSUS Vipin Pradhan, S/o. Parmanand Pradhan, aged about 48 years, occupation - agriculture, Kamal Kishore Pradhan, S/o. Vipin Pradhan, aged about 22 years, Ku. Geetanjali Pradhan, D/o. Vipin Pradhan, aged about 20 years, Indrajit Pradhan, aged about 18 years, All R/o. Village-Risora, P.S. Sariya, Tahsil-Sarangarh, District Raigarh (C.G.) (CLAIMANTS) Tekram Patel, S/o. Manbodh Patel, aged about not known, Occupation- Agriculture, R/o. Village- Amlipali, P.S. Sariya, Tahsil Sarangarh, District Raigarh (C.G.) The Oriental Insurance Company Limited, Divisional Office- Itwari Bazar, Raigarh, District Raigarh (INSURER) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'bie Shri Justice R. L. Jhanwar, Misc. Apoeal (C) No.83S of 2QOS APPELLANT : GuruprasadPatel. RESPONDENTS VERSUS Padmini Pradhan and others. Misc. Appeal (C) No.836 of 2009 APPELLANT : Guruprasad Patei. RESPONDENTS VERSUS Vipin Pradhan i &ft«^> ORDER FoLPronouncement of Order ?<< ,03.2011 R.L. Jhanwar Judge ^ HIGH COURT OF CHHATT1SGARH AT BiLASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, 2. 3. 6. Guruprasad Patel, S/o Manbodh Patel, aged about 37 years, Occupation-Driver and Agriculturs, R/o Village-Amfipalii, P.S. Sariya Tahsil Sarangarh, District Raigarh (C.G.) (DRIVER) Versus Padmini Pradhan, Wd/o Ishwar Pradhan, aged about 37 years, Occupation-House wife. Gurucharan Pradhan, S/o Late Ishwar Pradhan, aged about 20 years. Shricharan Pradhan, S/o Late Pradhan, aged about 18years, Ishwar Anil Pradhan, S/o Late Ishwar Pradhan, aged about 16 years, through Natural guardian mother Padmini Pradhan, Wd/o Late Ishwar Pradhan. All R/o viliage-Risora, P.S. Sariya, TahsH-Sarangarh, DistricS Rai'garh (C.G.) (CLAIMANTS) Tekram Patef, S/o Manbodh Pate!, aged about not known, Occupation- Agricuiture, R!o village - Amlipali, P.S. Sariya, Tahsi! Sarangarh, District Raigarh (C.G.) The Oriental Insurance Company Limited, Divisional Office - !twari Bazar, Raigarh, District Raigarh (C.G.) iNSURER) A.(C)No.836of2009 Guruprasad Patel, S/o Manbodh Patel, aged about 37 years, Occupation-Driver and Agriculture, R/o Village-Amiipaiii, P.S. Sariya Tahsii Sarangarh, District Raigarh (C.G.) (DRIVER) Versus 1. Vipin Pradhan, S/o Parmanand Pradhan, aged about 48 years, occupation agriculture, 2. Kama! Kishore Pradhan, S/o Vipin Pradhan, aged about 22 years, --_s_-.-.:; .,<3¥*'» v £ 3. Ku. Geetanjali Pradhan, D/o Vlpin Pradhan, aged about 20 years, 4. Indrajit Pradhan, aged about 18 years, All R/o village-Risora, P.S. Sariya, Tahsil-Sarangarh, District Raigarh (C.G.) 5. Tekram Patet, S/o Manbodh Patel, aged about not known, Occupation- Agriculture, R/o vi!!age - Amlipali, P.S. Sariya, Tahsil Sarangarh, District Raigarh (C.G.) The Oriental Insurance Company Limited, Divisional Cffice - Itwari Bazar, Raigarh, District Raigarh (C.G.) (INSURER) APPEAL UNDERSECTION 173 OF THE MOTOR VEHiCLES ACT, 198E 6. Appearance in both the appeais: Shri Raghavendra Pradhan, counsei for the appeliant. Shri Roop Naik, counse! for respondents No.1 to 4 and No.1, 2 & 4. None for respondent No.5. Shri Raj Awasthy, counsel for respondent No.S. ^;- ORDER (Passedonfa .03.2011) Since M.A.(c) No.835 of 2009 and M.A.(c) No.836/2009 are arising out ofsame accident, they are being disposed ofbythis common order. 2. The above two appeals are directed against the award dated 31.12.2008 passed by the Additional Motor Accidents Claims Tribunai, •Sarangarh, Dist. Raigarh awarding compensation of Rs.2,27.200/- in claim cases No. 40/2006 and Rs.2,27,200 in claim case No. 41/2006 in death cases. 3. Brief facts, as per pleadings of the claimants, are that on fatefu! day of 09.12.2002 the deceased persons Ishwar Pradhan and Deshatri Pradhan were coming from village h^athisuja to their resldence Risora. They were found to have been sitting on tractor bearing No. M.P 23 G 8981 and trolley bearing No. M.P 23 G 8982 (for short 'the offending vehicie'). The said offending truck was being driven by the appellant in a rash and negiigent manner and due to his rash and negligent act, ths offending vehicle met with accident and both Ishwar Pradhan and Deshatri Pradhan have died on the spot. '\- • ^~<<^c' ~.\' 3 4. As against the compensation of Rs.10,70,000/- and Rs.8,70,000/- sought by the claimants by fliing claim petitions separately undsr Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for the death Ishwar Pradhan and Deshatri Pradhan in the motor accident, the Tribunal, on close scrutiny of the evidence, materiai placed and respective submissions made by the parties, hoiding that due to rash and negllgent act of the appeilant, the offending vehicle met v/ith accident and the deceased persons died on the spot and as the terms and conditions of the insurance policy were breached by the driver of offending vehicle, the appellant and respondent 5 (herein) were liable to pay compensation, awarded compensation of Rs.2,27,200/- in claim case No. 40/2006 so a!so in claim case No.41/2006 for the death of Ishwar Pradhan and Deshatri Pradhan in the motor accident. The Tribunai further directed them to pay simple interest at 5% per annum from the date of filing of ciaim petition till the realization of actual amount. 5. Aggrieved therewith, the appeliant preferred this appeal. S. Shri Raghavendra Pradhan, learned counsel for the appellant vehemently argued that the iearned Claims Tribunal has erred in ho!ding that there was breach poiicy of insurance. He further argued that after amendment as to "the offending vehicle was carrying groundnuts and paddy seeds to sow in the field" made in the claim petition, the insurance company did not amend its written statement such plea, therefore, the insurance company is responsible to pay compensation but the learned Claims Tribuna! has erred in exonerating the insurance company from its liability; has erred in ignoring the written statement of the appellant and has erred in applying multiplier of 13 whereas it should be 10. He further argued that compensation awarded by the Tribunal is too higher. 7. On the other hand, Shri Roop Naik and Shri Raj Awasthy, learned counsel forthe respondents argued in support ofthe impugned award. 8. I have heard iearned counsel for the parties and perused the records ofthe Tribuna! including impugned order. 1 9. ' A bare perusa! of record has c'early revealed that after filing of .claim petition, although the appeilanfs in both claim cases have made % ^ \ amendment to the effect that as on the date of incident the deceased persons were taking groundnuts and seeds of paddy on the offending vehicle to sow fhe same in the field, but before the amendment it is stated therein that the deceased persons were coming from viilage Hathisuja (Orissa) to their residence place Risora. As against this, the appellant herein has stated nothing in its written statement, despite the fact that as on the date of incident he was driving the offending vehicle whereas the insurance company has already taken piea in its written statement paragraph 24 that aithough the offending vehicle was insured for agricultural purpose, but as on the date of incident the owner has given it on rent to deceased persons Ishwar Pradhan, Deshatri Pradhan and Padmini including 6-7 persons for attending death ceremony af Hathisuja (Orissa) and whiie they were refurning from Hathisuja to their Risora, the offending vehicle met with accldent and in the said accident, Ishwar Pradhan and Deshatri Pradhan have died on the spot. !n this manner, the insurer further pieaded that since on the date of incident the offending vehicle was being used for commercjal purpose, although it was insured for agricultura! purpose, the insurer is not responsible to pay any compensation. Not only this, Anand Kumar Gupta, witness of insurer, has also deposed in his evidence that although the offending vehicie was insured for agricultural purpose, but as on the date of incident, the oifending vehicle was given on rent to deceased persons including 6-7 persons for attending death ceremony at Hathisuja (Orissa) meaning thereby that the owner has breached the policy of insurance. As against this, the appellant and owner have not adduced any evidence. Therefore, the'contention of the appeilant that the insurer has not amended its written statement to the effect that the offending vehicle was carrying groundnuts and paddy seeds to sow in the field is unacceptable. A perusal of written statement, it is clear that the insurer has already taken plea as to the offending vehicle being used for commercial purpose iwhile admitting the fact that it was insured for agricultural purpose. Ciaim Case No.40/2006 10. Now, so far as the question as to the offending vehicle not being used for agriculturai purpose is concerned, it is clear from the evidencs of A.W.1 Gurucharan Pradhan that on 09.12.2002, hisfather Iswhar Pradhan and other persons of village Risora have gone to attend death ceremony at Hathisuja (Orissa) on the offending vehicle owned by Manbodh, Who r :2-3 sr-y has died during the pendency of claim petition. According to him, when they were returning back to Risora with the seeds of paddy and groundnuts on the same offending vehicle, near Mudikati village, due to rash and negligent act of driver Guruprasad, the offending vehicle turned turtle and his father has died. However, in cross-exami.nation, he admitted that h®did not produce any document relating to Khasra Number of agricultural land nor did state that from where they purchased the those seeds of paddy and groundnuts. Motiram A.W.2 has also stated the same as stated by A.W.1 Gurucharan Pradhan, but in his cross-examination he stated that they were returning from village Risora after attending death ceremony. However, he did not state that they were returning with paddy seeds and groundnut seeds. A.W.3 Bhishmadev Pradhan has also stated that they returning from Hathisuja on the offending vehicle, after attending death ceremony. He has stated that the deceased person Ishwar Prasad, being labour working under him, used to look after his fieids. He has also stated that he used to pay a sum of Rs.2500/- as monthly salan/ to the deceased. 11. A bare perusa! of above evidence, it is clear that the deceased and some other persons were returning from village Hathisuja on the offending vehicle after attending death ceremony and while they were returning, offending vehicle met with accident and Ishwar Prasad died. However, they have not stated in their evidence that the seeds of paddy and groundnuts being carried by thern belonged to whom, from where they have purchased that materia! and for whom such material was being carried. It is also clear from the above evidence that the deceased Ishwar Pradhan did not have any agricultural land. If all these facts are taken into consideration, then an inference can easily be drawn that ali the above witnesses were travelling as gratuitous passengers. More over, from the evidence of Anand Kumar Gupta, witness of insurer, this fact has also come that al! the above said witnesses were traveiling as gratuitous passengers. Claim Case No. 41/2006 12. A.W.1 Kama! Kishore Pradhan, has stated that his mother Deshatri Pradhan was returning from village Hathisuja on the same offending vehicle after attending death ceremony. He has also stated that in the offending vehic!e seeds of paddyand ground nutsv/ere also being carried. ^S^^a^-a,^.. ^M!S!L ,^ ^' ^ fev Sa ^^// »-y He has further deposed that at village Mudikati accident took place in that accident his mother died on the spot. He has further stated that his father was having three acres of land but he did not produce any such document. According to him, his mother was having a grocery shop and was earning Rs.24000/- per annum. It has also come in his evidence that at about 10-12 persons were present in the offending vehicle. However, he has also not stated that paddy seeds and ground nuts were being carried for whom and the above material belonged to whom and also from where they have purehased that material. A.W.2 Motiram has deposed the same thing as deposed by Kamal Kishore Pradhan. A.W.3 Bhishma Dev has stated in his evidence that he is having agricu!tural land but did not produced any such document to show that he is a!so having agricultural lands which also shows that he was also present in the tractor. Thus, it is clear that the above witnesses were travelling as gratuitous passengers. Claim Cases No.40/2006 & 41/2006 13. A bare perusal of registration of the offending vehicle has cleariy revealed that the sitting capacity of tractor is only for driver and trolley is not meant for travelling and also in insurance policy no premium was paid for covering the risk of other passengers travelling in trolley. 14. After perusa! of evidence on record, it is clear that near about 10 - 12 persons were travelling in trolley whereas a bare perusal of insurance policy has clearly revealed that no such premium was taken by it for covering the risk of passengers fravelling in troiley. Thus, the owner has breached the policy of insurance; therefore, the insurance company is not responsible to pay compensation. 15. . In the matter of Kanhaiyalal v. Kamlesh Singh and others, reported in 2010 ACJ 364, the High Court of Madhya.Pradesh, whi!e citing judgment rendered in the case of United India Insurance Co. Ltd. v. Seijerao, 2008 ACJ 254 (SC) with regard to liability of the persons travelling in trolley, has held as under: "(8). So far as the question of liability regarding labourers traveliing in troiieys is concerned, the matter was considered i by this court in Oriental tnsurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909 (SC) and it was he!d that the insurance company has no liability. tn view of the aforesaid two decisions of this court, we set aside the impugned order in each case and j^^-— '^/ "^-.^- -^ (S) remit the matters to the High Court to consider the matters afresh in the iight of what has besn stated by this court in Yallawwa's case, 2007 ACJ 1934 (SC) and Brij Mohan's case, 2007 ACJ1909 (SC)." In view of the above, it is clear from the principle of law laid down by Hon'ble Supreme Court that insurance company is not liable to pay compensation for the persons who suffer injuries or died in the accident while travelling as passengers in the trolley. Therefore, 1 am ofthe opinion that there is no illegality in the impugned award in so far as it relates to exoneration of insurance company. 16. So far as compensation awarded by the Tribunal is concerned, in claim case No. 40/2006, the learned Claims Tribunal has held that in a village normally no regular work is available and has taken income of the deceased at Rs.SO/- per day, Rs.1800/- per month and Rs.21 ,600/-. After deducting one-third towards persona! expenses, the Tribunal worked out to Rs. 14.400/- as annua! dependency. As regards multipiier of 13, the deceased person was aged 40 years on the date of accident and according to 2 Schedule to Section 163 A of the Act, the multipiier given is 15 but the Tribunal has taken multiplier of 13. After applying multiplier of 13, total dependency was worked out to Rs.1,87.200/-. By adding Rs.40000/- under other permissible heads, total compensation was worked out to Rs.2,27,200/- which the claimants are entitted to receive as compensation for the death of ishwar Pradhan. 1 am of the considered opinion, the compensation of Rs.2,27,200/- awarded by the Tribunal cannot be found fault. 17. As regards compensation awarded in claim case No.41/2006, the Tribunal, after considering the evidence and materiat available on record, fixed the age of the deceased person i.e. Deshatri Pradhan at 45 years on the date of incident. Although there was no clinching evjdence regarding exact income of the deceased person, the Tribunal has fixed the income of the deceased at Rs.1800/- per month and Rs.21,600/- per year. Simiiarly, the Tribunal, after deducting one-third towards personal expenses of the deceased, worked out annual dependency to Rs.1,87.200/- by applying multiplier of 13. By adding Rs.40,000/- under other permissible heads, the total compensation vras worked out to Rs.2,27,200/- for the death of Deshatri Pradhan in the motor accident. 1 '^' 9 am the considered opinion, the Tribunal did not commit any error in awarding such compensation. 18. !n view of what has been stated above, it is held that it has come in the evidence that as on the date of incident near about 10-12 persons were travelling on the offending vehicle and they were coming fromviliage Hathisuja (Orissa) after attending death ceremony and while they were returning the accident took place resulting into death of Ishwar Pradhan and Deshatri Pradhan on the spot and since the offending vehicle was being used for commercial purpose, the insurance company is not iiable to pay compensation amount and insurance company has rightly been exonerated. 19. !n the result, the appeals are dismissed. The impugned award dated 31.12.2008 passed by the Tribunal is exonerating the insurer from the liability to pay compensation and fastening the Hability on the owner and driver i.e. respondent No.5 and the appellant, is impeccable. The appellanVinsurer may initiate proceedings for recovery of compensation, if any, paid by it from the owner. 20. A copy of this order be kept in M.A.(C) No.836/2009. :^ >^ Bs! ^• '