HIGH COURT OF CHHAmSGARH, BILASPUR SINGLE BENCH: HON'BLE SHRI R. L. JHANWAR. J. Misc. AppealJC) No^Sl /2010 APPELLANTS Smt. Shanti Bai and others. Versus RESPONDENTS Gorelal and another. ORDER POSTON^\^ December. 2010 Sd/- R.L. Jhanwar Judge \\/12/2010 •6^ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR, J. M.A. (Ct No. 51 of 20^10 APPELLANTS RESPONDENTS Non-apolicants 2. 3. 1. Smt. Shanti Bai, Aged about 40 years, W/o Sri Tukram Sahu, Ku. Neeta Sahu, Aged About 22 years, D7o Sri Tukram Sahu, Ku. Yogeswari Sahu, Aged about 20 years, D/o Sri Tukram Sahu. 4- Ku. Bhuneshwari, aged about 18 years, D/o Sri Tukram Sahu. 5. Minor Ghanshyam Sahu, Aged about 16 years, S/o Sri Tukram Sahu, Through Shanti bai Mother Natural Guardian. Minor Ku. Tuneswari Sahu, Aged about 14 years, D/o Sri Tukram Sahu, Through Shanti bai MotherNatural Guardian. Hemant, Aged about 09 years, S/p Sri Tukram Sahu, Through, Shanti bai Mother Natural Guardian. Smt. Puran bai, Aged About 77 years, W/o 6. 7. 8. 1. 2. Sri Shyam!ata Prasad, All Residents of Gram Sindhara (Malakharoda), Dist. Janjgeer - Champa (C.G.), Residence Moti Sagar Para, Tah. & Dis. Korba (C.G.) VERSUS Gorelal Kaiwart, Residence-Sitamadi, Korba Tah. & Dist. Korba (C.G.) Driver. The Oriental Insurance Company Ltd. Through : Divisional Manager, Divisional Office, Bilaspur (C.G.) Insurer. APPEAL UN^ERSECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Appearance: &hri Mukesh Sharma for the appellants. Shri Hanuman Prasad Agrawal for respondent No.2 ORDER (Passedon\^.12.2010) This appeal is directed against the impugned order dated 11.08.2009 passed the Additional Motor Accidents Claims Tribunal, Korba (for short 'the Claims Tribunal') in C.T. case No. 03/2008 dismissing the claim petition of the appellants. '^-...... ^' ^' \fff.^ ^ ^. ^. ,^ 2. Brief facts of the case, as projected from pleadings of the parties, are that on fateful day of 11.07.2007 at 2.00 a.m. at Shakti drainage situated between the villages Pantora and Baloda Road, on account of rash and negligent driving by its driver Gorelal / respondent No.1, the unregistered vehicle namely pik-up TATA 207 (offending vehicle) met with accident, as a result of which, Tukram, owner of the vehicle, who was travelling in his vehicle, died instantaneously. Incident was reported at Police Station Baloda where an offence under Section 304A ofthe I.P.C. was registered against respondent No.1. 3. Seeking compensation of Rs.42,50,000/- on various heads, the claimants, being legal representatives of the deceased Tukram, have preferred a claim petition pleading that the deceased was aged 43 years and was earning Rs. 12.000/- by doing the business of transport the Pik-up vehicle, running provision stores and dairy. 4. Respondent No.1 Gorelal remained ex parte before the learned Claims Tribunal. Respondent No.2 insurance company has in its written statement while admitting the fact that the said offending vehicle was owned by the deceased and the said offending vehicle was insured till 01.05.2007 denied remaining averments of the claim petition. It was specifically pleaded that the deceased himself was travelling in his own vehicle, therefore, the deceased does not come under third party; on the date of accident, the driver of said offending vehicle was not holding a valid and effective driving licence and the said offending vehicle was being driven in breach of policy terms and conditions. 5. All the parties led their evidence before the Tribunal and the Tribunal, on close scrutiny of the evidence available on record and submissions made before it, held that the appellants / claimants have not been able to prove their case and dismissed their claim vide order dated 11.08.2009. It is this order, which is under challenge by the appellants by virtue ofthe instant appeal. 6. Learned counsel for the appellant vehemently argued that the learned Claims Tribunal has not considered that the concerned policy of insurance Ex.D.1 in which for persona! accident (PA), amount of Rs.100/- "iS^;;^.-.11^..^ Ife....-.-:''1 ^ssssf ^ has been paid and for that it is mentioned in the policy in "A to A" part i.e. "PA Cover under Section III for owner-Driver (CSI) for Rs.2,00,000/-. Therefore, the owner's risk was covered under the policy and the accident took place due to use of the said offending motor vehicle by the owner. According to him, owner was also travelling in the offending motor vehicle and that offending vehicle was being driven by respondent No.1 Gorelal and the said offen'ding vehicle met with accident. Therefore, the insurance company is liable to pay compensation of Rs.2,00,000/-. 7 . On the other hand, learned counsel for the insurance company supported the award and argued that theclaim petition is under Section 166 of the Motor Vehicles Act and according to the claim petition one Gorelal was driving the vehicle rashly and negligently but it was not proved by the appellants and also not produced Gorelal as a witness who was the best witness to say how the accident took place. He also argued that according to F.l.R. Ex.P.12 except deceased, none was present in that offending vehicle. According to pleadings, Gorelal was the driver of that vehicle on the said date of accident, but he did not lodge any report and not stated anything to anybody. It is also not pleaded that after the accident, the driver left the place and where he has gone. The witness of claimants are not eye witnesses, therefore, learned Claims Tribunal rightly held that the driver was driving the vehicle rashly and negligently at the time of accident, which was not proved by the appellants. Thus, the appellants are not entitled for any compensation. 8. I have heard learned counsel for the appellant and have perused the evidence available on record. 9. A perusal of evidence available on record and pleadings would r.eveal that deceased Tukram died in a motor accident on 11.07.2007 when Pik-UP TATA 2007 tnet with accident. F.1.R. Ex.P.12 would also reveal that dead body of deceased was found in the offending vehicle. Now, the question that has to be considered in this appeal is whether or not the risk of deceased Tukram is covered under personal accident to the extent of Rs.2,00,0007- by the insurance company. In this case, premium has been taken for personal accident of the owner so also premium has been taken for driver separately. A bare perusal of the insurance policy Ex.D.1 would reveal that the respondent insurance company had covered the risk of deceased - Tukram i.e. owner-driver of the Pik-Up TATA to the extent of Rs.2,00,0007- only by taking extra premium of Rs.100/- under personal accident (PA) as well as Rs.75/- for employee/Driver separately. This policy is of owner-driver and not owner-cum-driver meaning thereby driver is separately insured so also owner. If the policy is for owner-cum- driver, then certainly the owner must be the driver. The insurance policy Ex. D.1 also reveled that it is for owner-driver. So far as third party liability is concerned, deceased being the owner of the vehicle was not a third party and the legal representatives of the deceased are not entitled for any compensation under third party claim. Howsver, certainly the respondent / insurance company owed liability of payment of compensation to the legal representatives of the deceased to the extent of Rs.2,00,000/- in view of specific contract by which the respondent / insurance company had undertake the risk of owner-driver to the tune of Rs.2,00,000/-, therefore, 1 have no hesitation to hold that respondent / insurance company's liability is confined to Rs.2,00,000/- in the instant case. 10. While appreciating the evidence available on record, the learned Tribunal has ignored in taking into consideration the above aspect and thereby committed illegality. 11. For the foregoing, the appeal is allowedin part and the impugned award dated 11.08.2009 is set aside. Now the insurance company / respondent No.2 is liable for payment of compensation to the tune of Rs.2,00,000/- only. The payment of compensation shall be paid by the insurance company to the claimant within a period of two months. If the payment of compensation of Rs.2,00,000/- is not paid within two months, then the respondent No.2/insurance company shall pay interest 6% per annum from the date of ordertill realization. No order as to costs. Sd/- R.L. Jhanwar Judge (?