«< vssxs. ^3^^^^ HiGH COURT OF CHHATT1SGARH AT BILASPUR Singie Bench: Hon'ble Shri Di'jp Raosaheb Deshmukh, J. Misc. Appeai (C.i Ho. 1062/2007 APPELLANT: RESPONDENTS CLAiMANT Owner cum Driver The New India Assurance Compar(y Limited, through - Divisional Manag^r, T'ne New india Assurance Comparfiy Limited, Biiaspur, 2 Floor, Rarr|a Trade Centre, Opposite - Rajeev Piaz|; Bus Stand, Bilaspur (C.G.) Versus Samudiya Bai W/o Shri Budh^ri Satnamj, agsd about 50 years, Rfo Viiiage - Luk, P.0. - Sa'naspur, Tahsi| Saja, P.S. Dhamdha, District D^rg (Chha'ffisgarh) Kamia Prasad S/o Shri-Pilu Ram, ag^d about 32 years, R/o Village Sonesar^r, Tahsil and Police Station Dhamdha, DistrictDurg (Chhattisgarh) | Misc. Appeai Under Section173 of Motor-Vehieies Act, 1988 APPELLANT: A.tC.LNo. 1078/2007 The New india Assurance Compa|,hy Limited, through - Divisional Manag^r, The New india Assurance Comps|ny RESPONDENTS i7 Owner cum Driver Limstsd, Bilaspur, 2 Floor, Rai|na Trao'e Centre, Opposite - Rajeev Plata, Bus Stand, Biiaspur (C.G.) Versus I IVlakhan S/o Sakharam Satnami, a^ed about 30 years, resident of Vitlag^: - Luk, P.0f- Sahaspur, Tahsii - S^ja, P.S. Dhamdha, Djstrict Dlirg (Chhattisgarh) • j Kamta Prasad S/o Shri Pilu Ram, adjed about 32 years, R/o Village Sonesafar, Tahsil and . Police Station Dhamdtia, Disti'ict Durg (Chhattisgarh) Mjsc. Appeai UnderSection 173 of Motor Vehicles Act.1988 ^ Misc. Appea! (d Np, 1079/2307 APPELLANT: JBS waKK •SKB tjfilSS]- '"f / RESPONDENTS CLA1MANT Owner cum Driver The New tndia Assurance Compan^ Limited, through - Divisional Managej The 5-^ew india Assurance Comparjy Limited, Bilaspur, 2"° Floor, Rar Trade Cenfre, Opposit.e - Rajeev Ptaz|? Bus Stand, Biiaspur (C.G.) Vecsys Ghanshyam, S/o Goverdhan Satnar^ii, aged about 30 years, R/o Viliage - Lijik, P.0. - Sahaspur, Tahsil - Saja, P|S. Dhamdha, District Durg (Chhattssgarh[) II Kamta Prasscl S/o Shri Pilu Ram, aged about 32 years, R/o Vii'age Sonesaijar, Tahsi'i and Poiice Station Dhamdha, District Durg (Chhattisgarh) Misc. Aiipeai Under Secfion 173 ofMotor Vehscies Act, 1S88| APPEl-LANT: RESPONDENTS CLAiMANT Ownercym Driver Misc. Appeai (C.i No.'1077/2007. The New india Assurance Com^anyi Limited, through - Diyisional Man3|ger,j The Nsv/ india Assursnce Comtj>any; Limited, Bslaspur, 2 Fioor, R|amai Trade Centre, Opposite - Rajeev P|^>za,| ius Stand, Bilaspur:(C.Q.) Versys Dharmendra, S/o Gautariha Satrtamii aged about 22 years, R/o Village -[Luk, P.0. - Sahaspur, Ta'nsil ~ Saja,|P.Si. Dhamdha, District Durg (Chhattisg^rh) : Kamta Prasad S/o Shri Pilu Ram, |aged about 32 years, R/o V'ilage Sone^arar, Tahsii and Police Station Dhariidha, District Durg (Ghhattisgarh) Misc. Appeai Under SectJonJ73_ofMptorVeh[ciesAct, 19^8 Misc. AppeaKC;) No, 1078/2007 APPELLANT: ^iSSSS' The New 'lndia Assurance Cor|)pany Limited, through - Divisional Ma^ager, The New !ndia Assurance Cor|npany Limited, Bilaspur, 2"° Floor, |Rama Trade Centre, Opposite - Rajeev ptaz^, Bus Stand, Bilaspur (C.G.) ' __.__-L .3^^.^ IM&SK 1—t IBJIg •?,- Versus Ratnu, S/o Dhnau Satnami, aged atiput 60 years, R/o. Village - Luk, P.0[ Sahaspur, Tahsii - Saja, F{.S. Dhamdha, District Durg (Chhattisgart led tar, Tahsii and Poiice Station Dham4ha, District Durg (Chhattisgarh) 2. Kamta Prasad S/o Shri Pilu Ram, ai about 32 years, R/o Village Sonesa Misc. Appeai Under Section 173 ofMotorVehicies Act, 1988 Misc. Appeal LCJ No. 1075/2007 The New tndia Limited, through The New India Assurance Comp Divisional Manai Assurance Comp ,nd Limited, Bilaspur, 2"° Floor, Rs|ma Trade Centre, Opposite - Rajeev Pt^za, Bus Stand, Bilaspur (C.G.)- Versus 1. Surujs Bai, W/o Shri ;Ratnu, aged afc( 47 years, R/o Village - Luk, P.q! Sahaspur, Tahsil - Saja, f{ Dhamdha, District Durg (Chhattisgarf 2. Kamta Prasad S/o Shri Pilu Ram, a{ about 32 years, R/o Village Sonesa| ied rar, Tahsil and Foiice Station Dhamcfha, District Durg (Chhattisgarh) Misc. Appeal Under Section 173 of Motor Vehicles Act.1988 Misc. No.1074;2007 APPELLANT: iny er, iny out s. RESPONDENTS CLAiMANT 1. The New india Assurance Comp|any Lim'ted, through - Divisional Mana^er, T'ne Nevi/ india Assurance Comriany Limited, "'Bilaspur, 2"a Floor, R4.ma Trade Centre, OppoSi'te - Rajeev Pl^za, Bus Stand, Bilaspur (C.G.) Versus Smt. Surujs Bai, Wd/o Shri Balv]/anl Satnami, aged about 50 years, |R/o Village - Luk, P.0. -Sahaspur, Tah^il Saja, P.S. Dhamdha, District Qwg (Chhattisgarh) •BI, Ownercum Driver 2. Misc. Appeai Under Section 173 of iViotor Vehicies Act. 1988 W.P.(C.)No.S854/2007 PETITiONER RESPONDENTS CLAiMANT Kamta Prasad S/o Shri P:ilu Ram,aged about 32 years, R/o Village Sonesarar, Tahsil and Po!ice Station Dhamdha, District Durg (Chhattisgarh) The New india Assurance Company Limited, through - Divisionsl Manager, The Nev/ india Assurance Company Limited, Bilaspur, 2"° Fioor.Ra.ma. Trade Centre, Opposite - Rajeev Plaza, Bus Stand, Biiaspur (C.G.) Versus Banthu, S/o Shri Pusau Satnami, aged about 60 years, R/o Village - Luk, P.0. Sahaspur, Tahsll - Saja, P.S. Dhamdha, District Durg (Chhattisgarh) i»S * Ownercum Driver Kamta Prasad S/o Shri Pilu Ram,aged about 32 years, R/o Villags Sonesarar,, Tahsii and Poiice Station Dhamdha, District Durg (Chhattisgarh) Writ Petition Under Articie 227 of the Constitution of tndia W.P. (C.tNo.565S/20_07 PETiTIONER RESPQNDENTS CLAiMANT Ownercym Driver The New India Assurance Compan^ Limited, through - Divisiona! Manager( The New india Assurance Companf Limited. Biiaspur, 2nc Floor, Ram^i Traa'e Centre, Opposite - Rajeev Pi'aza], Bus Stend, Blfaspur (C.G.) Versus Goverciiian Satnami, S/o Shri Bhagba| Satnam', aged about 50 years, R/^? Viltage - Luk, P.0. - Sahaspur, Tahsil i- Saja, P.S. Dhamdha, District Dur{ (Chh^ftisgam) Kamta Prasad S/o Shri Pitu Ram, age|d about 32 years, R/o Village Sonesaraj-, Tahsii ancf PoEice Station Dhamcih^, District D'urg (Chhattisgarh) a SsSS Writ Petition Under Arucie 227 ofthe Consfitution of india W.P. (C.) No. 5658^007 PETITiONER RESPONDENTS CLAIMANT ';•' •">> ^l Owner cum 'w-!w«m!.Z7~.^ Driver ^•?y lA30kA^ i».;. sv ''^f: i; agfia!t.s;.. SSfffS ^S<^:1.;.' 8»B:: The New India Assurahce Company Limited, througli - D.'vrsional Manager, The New India Assurance 'Company Limited, Bilaspur, 2" , Floor, Rama Trade Centre, Opposite - Rajeev Plaza, Bus Stand, Biiaspur (C.G.) Versus Goverdhan, S/o Shri Hsiriram Satnami, aged about 50 years, R/o Village - Luk, P.0. - Sahaspur, Tahsil - Saja, P.S;; Dhamdha, District Durg (Chhattisgarh) Kamta Prasad S/6 Shri Piiu Ram, agedj about 32 years, R/o Village SonesararJ Tahsil and Police Station Dhamdha,[ District Durg (Chhattisgarh) Writ Petition Under Article 227 of the Constitution of India W,P.(C.lNo.565S/20Q7 PETITIONER RESPONDENTS Cl.AIMANT Ownercym Driver The New india Assurance Compan^ Limited, through - Divisional Manage(|, The New India Assurance Compani Limited, Bilaspur, 2 Floor, Ram^ Trade Centre, Opposite - Rajeev Piazi Bus Stand, Bilaspur (C.G.) Versys Chinta Ram, S/o Shri DulakuSatnahlj. aged about 50 ye&rs, R/o Village - Lu( P.0. - Sahaspur, Tahsil — Saja, P.S Dhamdha, District Durg (Chhattisgarh) c/~ Kamta Prasad S/o Shri Piiu Ram, age[d about 32 years, R/o Viiiage Sonesara| Tahsit and Police Station Dhamdh^, District Durg (Chhattisgarh) Writ Petition Under Artjcle 227 otthe Constitution of India W.P. (C.) No. S660/2007 The New India Assurance Compan|^ Limited, through - Divisional Manage^ T'ne New India Assurance Compar)\ Limited, Bilaspur, 2nd Floor, Ran^E Trade Centre, Opposite - Rajeev Piazip, Bus Stand, Bilaspur (C.G.) Versus Santu, S/o Shri Budhari Satnami, ag^d about35 years, R/o Village - Luk, P.(p. Sahaspur, Tahsii; - Saja, P.?. Dhamdha, District Durg (Chhattisgarh) Kamta Prasad S/o Shri Pilu Ram, ag^d about 32 years, R/o Village Sonesar^r, Tahsit and Police Station Dhamdhla, District Durg (Chhattisgarh) Writ Petition Under Article 227 ot the Constitytion of ind'a W,P,(C,LNo^S661/2007 The New india Assurance Comp^i Limited, through - Divi'sional Managj The ?^lew India Assurance Comp^t Limited, Bilaspur, 2"° Floor, Rai|na Trade Centre, Opposite - Rajeev Pia^a, Bus Stand, Biiaspur (C.G.) , Versus Thanu Ram, Satnami, aged S/o Shri Maha about 35 years, Village - Luk, P.0. - Sahaspur, Tah Saja, P.S. Dhamdha, (Chhatti'sgarh) r^gu ft/0. igl- District D(iirg Kamta Prasad S/o S'nri Pilu Ram, a^ed about 32 years, R/o Village Sonesa(ar, Tahsil and Police Station Dhamdlha, DistricfDurg (Chhattisgarh) Writ Petition Uncier Article 227 ofthe Constitution of india Present: Shri Saurabh Sharma, counse! for the appellant/petitioner. Shri Jitendra Gupta, counsel for respondent No.1. Shri Uttam Pandey, counse'i for respondent No.2. : & 9- 0_RAL ORDER (Passed on 16th November, 2007) Heard on admission. 2. By this common order Misc. Appeal (C) Nos. 1062/200'i 1078/2007, 1079/2007, 1077/2007, 1076/2007, 1075/2007, 1074/200 and W.P.(C) Nos. 5654/2007, 5655/2007, 5656/2007, 5659/2007 5660/2007 and 5661/2007 fiied by the insurance company are beini disposed of atthe stage of admission with the consent ofthe parties. 3. The foliowing chart would give the detaiis of compensatioi awarded by the MACT against the appeltant/insurance company: Sr. No. Misc. Appeal (C.) No.,' Wril Petition (C.) No. C'aim Case No. Compensation awarcled 01. w ^.f' M.A.(C) No.1062/2007 27/2006 Rs. 18,000/- 02. K 03. 1078/2007 33/2006 Rs. 35,000- 1079/2007 26/2006 Rs. 23,000;- 1077/2007 32/2006 Rs. 10,000/- 1076/2007 29/2006 Rs. 35,000/- 1075/2007 34/2006 Rs. 23.000/- 07. BBSl 09. 11. 12. 13. 1074/2007 35/2006 Rs. 18.000/- W.P.(C)No. 5654/2007 30/2006 Rs. 7,000/- 5655/2007 31/2006 5656/2007 23/2006 Rs. 5,000./- Rs. 3,000/- 5659/2007 25/2006 Rs.: S,000/- 5660/2007 28/2006 Rs. 7,000/- 5661/2007 24/2006 Rs. 8.000/- *B IE 4. The; only point for consideration in all the aforesai^ Miscelianeous Appeals and Writ Petitions is as to whether the IVIAC1 ought to have exonerated the appeilant/lnsurance Company from th^ liability to.pay compensation due to a fundamental breach of policy. 5. Brief facts are that on 29.07.2005, the claimants in ail th^ aforesaid Misceilaneous Appeals and Vtfrit Petitions were traveling i( Metador No. CG 04 G/8946, a goods vehicie owned by responden| No. 2 and insured by the appel!ant/peutioner Insurance Company. Th( claimants sustained injuries due to the matador turning turtle as result of rash and negligent driving ofthe respondent No. 2/owner. 6. T'ne MACT held that the accio'ent was caused due to rash an^l negligent driving by respondent No. 2/ovvner. 't tas'tened the liability Vp ^ pay compensation on the Insurance Company on the ground tljiat under the policy of Insurance the risk of workman or labour vfas covered and the claimants were traveling in the matador as iabour^rs of the respondent No. 2. 7. Shri Uttam Pandey, learned counsel for respondent No.2/ow|fier did not dispute the following in this appeai: iNyig%A •.?:'.<->/ tH^-S^ \-'-.^ (a) (b) (c) that the respondent No. 2 was the owner of the mata^or bearing No. CG 04 G/8946 on the date of accident; that the above mentioned matador was insured a^ a goods vehicle under the policy of insurance issued by appeiiant/petitioner Insurance Company, and that under the poiicy of insurance carrying of passen^ers for hire or gratuitous passengers in the IVIatador ijvas prohibited and would amount to a breach of policy iss^ied bythe insurance company. the IK B8 8. ThSj respondent No. 1/Claimant had in his application uiffder Section ;166 of Motor Vehicies Act mentioned th^t the said mattdor bearing No. CG 04 G/8946 was carrying 45-50 persons from Vifjage Luk to Village Sonesarar for the work of planfation. The respon^lent No,2/owner in ali fhe claim cases took the plea that no accident occurred on 29.07.2005 with the said matador owned by him. ;;had' The: policy of insurance was filed by the appellant/petitioner InsurAhcel Company which reveais, as admitted by the learned counsel for the. respondent No. 2/owner, that the said matador was insured pureiyjas a goods carrying commerciai vehicie in which risk of 7 employees (was covered. it is not the case of the respondent No. 2/owner tha^the claimants were his empioyees in'the said matador which was ins|yred as goods carrylng commercial vehicie. Not oniy this respondent fjlo. 2 entered the witness box but did not say a word as to whethe^ claimantswere his employees. On the contrary, he has deniet) the the facttim of accident in his statement bei'ore the MACT. The ctaijnant has deposed that at the t'rme of the accident she wss traveling iji the said matador for going to village Sofiesarar for the purpos|e of TaT]ff~"fl-fli»Wi F«%>'i Rli i' .•1*^ .^^' y '•'^;1 -'?- plantation operation as a labourer. Even the claimants did not depQS^ Shat ffiey were under employment of respondent No. 2/ov/ner. 9. In this view of the matter it is ciesriy borns out from the|: evia'ence on record that the claitTiants were travelina in the saidl matador not'as empioyees of the respondent No. 2/owner but as| gratuitous passenaers which constitutes a fundaiTiental breach of ti-ie| poiicy ot insurance issuec by the appe!lant/pst;t!oner. !n this view ofj the matter, learned MACT srred in awsrding corripensatlon against the| appelianVpe;it;oner insurance Compa"y. The awsrd passed by the| MACT is iisbie to 3s set ss.de to th^exani:. 10. In the result, ail the iViisceiianeous Appeais and Wnt Petitionsl are aliowed. The award passed by the MACT is modified. Ths appellant/petitioner-lnsurap.ce Company is exonerated trom the !i3bi[ity' ^to pay compensation. The liabi'ity to pay compensation in a\\ tne cases | '-ireferred in para 2 rests soiely on the respondent No.2/owner. it sha!I •'" ^ '/be open to the appeiiant/petitioner Insurance Company to init'are execution proceedings to recover the arnount of compensation statutorily deposited by it under the proviso to Section 173 ofthe Motor Vehicies Act from the resDondent No. 2(owner. r— --Sd, O.R.DeSi Ju&9 uauiua