•VT BEFORE THE HON'BLE HIGH COURT OF CHHATriSGARH BILASPUR M.A.fC) N0. ^13 /2008 APPELLANT 15EFENDANT N0.2 VERSUS RESPONDENTNO.l >. ^C'LAIMANT N0.1 RESPONDENT N0.2 ,2: :LAIMANT N0.2 RESPONDENT N0.3 3. -CLAIMANT N0.3 RESPONDENT N0.4 4. ,€LAIMANTN0.4 °^ ^"' w ^••y \ff>>y^l ^ ..^..-^.•^ ^•';->1' '^.••-""" '' «^ RESPONDENT N0.5 5. DEFENDANT N0.1 The Oriental Insurance Co. Ltd. Sadar Bazar, Jagdalpur Distt. Bastar (CG) through the Divisional Manager, Divisional Office - 02, Raipur (C.G.) Dingeshwari Vaidh, widow of Late Ghasuram aged about 31 years, Pritam Kumar son of Late Ghasuram, aged about 08 years Khemeshwari Daughter of Late Ghasuram aged about 05 years Tanuja Daughter of Late Ghasuram aged about 02 years Respondents No.2 to 4 are minors through their natural guardian - Mother Dingeshwari Vaidh, Wd/o Late Ghasuramaged about 31 years, All are Kalar by caste, R/o Baderajpur Tah Keshkal Distt Bastar (CG) Dhani Ram son of Teeju Ram Surojiya, aged about 35 years, resident of Baderajpur, Tah. Keshkal Distt. Bastar (CG) (OWNER & DRIVER OF OFFENDING VEHICLE ^ MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988 ^M HIGH C^URT OF CITOATnSQARH. BnAWim DB: HON*BLB I.M. QUDDUSI » HOK'BLB G. MINHAJVDDHI, JJ MISC. APPBAL (CINo. 813 OF 3008 V*. RB8PON&BIIT8 1 Diogesbwaii Vaxdb ai^d 4 others MISCBI-LANBOU8APPBALU/S 173 OF TIM5 MOTOR VBHICLB8 ACT.1988 APPBARANCE: Mr. Shailendra Sharma, coiinsel for fhe appellant Mr. Vishau Koshta, counsel f<»-respoudents 1 to 4. None for respondent no,5. Per I.M. OUDDUSI, J ORDBRWRALI (l'7.06.20ll) List is bemg revised, Case isagaaxi called out, Even when the niatter is calted twice, aio one appears oa belialf of respondent iio.S, However, counsel for the appellant and also coiiasel for rcspondents 1 to 4 are present Thercfore, we proceed ex-parte ^afaast rcspoadent no.5 who is driver cum owner offhe niotorbike, This appeal has been fUled by fhe Insua^uK^ CoiDipany against fhe inipugned award dated 18.01.2008 passed by learaied Addl. Motor Accident Claims Tribunal^ Koiidagaon^ Distt Bastar (Chliatdsgarh) so far as it relates to directioa to the appellant iasurance company to pay (he amozuit of compensation aad then rccover the same fipom the owiier. ^^iiW^^y^ "w~1 APPBLLAWT The Orieatel tesurance Co. Ltd. ^ np 3. Brief facts of fhe case as per fhe version of elaimaot are that on 26,03,2006 deceased Ghasuram was rcturmng to his house at Baderajpur jBrom viUage Ju^aiii by Motorcycle bearing Regn.no.C.G.17-J/7154. Respondraat ao.5 Dfaani Ram was driving his saM iiiotQixycte wliereas <he d^ceased ^ras sittiBg as pillicm rider. On thc 7,15 p-m^ near Korana hiB^ fhe motoixycle which was beicig diwen by lespondettt no-5 in a xash aad iiegU®^at^aaxiiaaKr ttinied turtle^ as a result ctf which, Gliasuram sustamed serious faead iigury aiid died <m tfaje spot At fhe lime crfaceideiit^ fhe deceased was aged about 35 years. He was a sldlled mason and was earniag Rs.600Q/- per monfh by workmg as mason and by undertakmg contracts of buiMiag worics etc. Tfae clamiants beiag dependents/legal represeaxtativ^ faave filed fhe claiai petition u/s 166 of the Motor Vefaieles Act for fhe award of compensation to the tane of Rs,16^60,000/a- oa vadous heads^ 4. The leamed Claims Tribunal has held lliat flie said inotorcycle was involved in fhe accident in which deceased died and it has awarded a total compensatiiDii of Rs.3^75,600/- which the claimaat is entitled to receive fiom fhe nbn-applicaats joiafty and severalty. 5. We have heaitl learaed counsel fbr tiie partiesaadhave also perused the itnpngaed award as weU as tfae records of the Claims Tribunal. 6» In Para 17 of fhe impugaed award, fhe leanied claims Tribiinal has held fhat firoai fhe evidence ofBi'aiich Manager ShaUendra Kuxnar fN,A.W. 1) it was made clear fhat fhe risk offhe piUion riders is not covered under fhe coxiditions ofthe ^^^%? ^^^,^^. /^s:: -^ SVSSi^k '^ '~^ ^. ^. y / "y^ ^^^.^.^ ^ & 8. msurance poMcy<. It hs^ also come fix>m evideoce ffaat tfaere was seatmg capacity for two persoas wMercas tfaree perscms were traveling on fhe motorcycle oa fhe date of aecideat Thereforc, there was breacfa of coDditions of the Insiaraace PoUcy. In case ofbreach of insux'smce poUcy, there is no provteion under the law to hold fhe iasiiraiice Compaay rcspoxisible to pay fhe amoiuit of comipensation and (faen recover it ftf>m fhe owuer. In case of Nattonal Inswraace Conapuiy V». 8wa»nSInyg^i & otkliers reported fa» (2004) 3 8CC 297 fherc was dircction to pay and recover but fhat was a case ofthird party, The case on hand is not a fhlid paxtf case. Therefore, the appeHant could not have beea held Bbbte to pay the amount of coinpensatioii and iiecover It firpm fhe owner later on. In view of fhe above, fhis appeal is allowed. Tfae directbn contained in fhe impugaed award in Para 25 to fhe exteiit (hat the appeflant compaiiy shatt pay coinpeasatioii to the clahxiaats aad recover fhe saaxie fix>m the owner of fhe vehicle 1s set aside. The claimaiits are firee to recover fhe amount of coinpensation fix>m fhe owiier of the vehicle, No order as to costs. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge Rao