l<-'i- ^ ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARHI .^p 6> ^^, o«^^ ylvlslon 8S Misc.Appeal No. OF200S APPELLANT . INSURANCE ,-RESPONDENTS CLAIMANTS Afc%- .^wy ^>y) X fr-f\'y ^<^ .^' "^" ^•" Oriental Insurance Company Ltd. Branch Office-Manager, Oriental Insurance Company Ltd., Itwari Bazar, Raiearh (CG). VERSUS 1. Keshav Agrawal s/o late Ram Kishan Agrawal, aged 50 years. 2. Smt. Vimla Devi w/o Keshav ^Agrawal, aged 45 years. 3. Ajay Kuinar Agrawal s/o Keshav /^Agrawal, aged 24 years. (All r/o Ganja Chowk, Ramgudipara, Raigarh, presently residing at Near Bhoot Bandhan Tank, Baikunthpur, Raigarh (CG). l.1 DRIVER /4.Satish Sharma s/o Jagdish Sharma, aged 37 years, Occupation-Driver, r/o Ganja Chowk, Raiearh (CG). OWNER . ^S.Dinesh Sharma s/o Radheshyam ^Sharma, Occupation-Owner, r/o Ganja Chowk, Raigarh, Tehsil & District-Raiearh (CG). ^ APPEAL U/S 173 OF MOTOR VEHICLES ACT, AGAINST THE AWARD/ORDER DATED 25^/2005 PASSED BY THE IInd ADDITIONAL CLA!MS_J'RIBUNAL. RAIGARH IN CLAIM CASE N0.tt8/2004, 1 T^ •* ff 1 HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT RESPONDENTS APPELLANT RESPONDENTS M.A.No. 208 of 2C06 Oriental Insurance Company Ltd. VERSUS Keshav Agrawal and others. M.A.No.218of2006 Oriental Insurance Company Ltd. VERSUS Suresh Shah (dead) through legal heirs Smt. Leeiawati and others. APPELLANTS RESPONDENTS IVI.A.No. 948 of 2005 ; Keshav Agrawal and others. VERSUS Satish Sharma and others. ORDER FOR CONSIDERATION \g- .72011 Sd/- N.K. Agrawal Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 ^^3^^— Sd/- Chief Justice For Pronouncement of Order 2-0 .07.2011 Sd/- N.K.Agarwai Judge L^l^ae^' ^S- '<L^J^if5--' HIGH COURT OF CHHATHSGARH : BILASPUR COR&M: HON'BLE 8HRI RAJBEV GUPTA, C.J. & HON'BLE 8HRI N. K. AGRAWAL, J. APPELLAHT RBSPONDENTS CLAIMAWTS DMVBR OWNER M.A. Ho.208 OF 2006 Oriental Insurance Coinpaay Ltd. Brauch Of&ce-Manager, Oriental Insurance Company Ltd., Ilwari, Bazar, Ra4sarh (CG) VERSUS 1. Keshav Agrawal, s/o late Ram Kishan Agrawal, aged 50 years. : 2. Smt. Vuula; Devi, w/o Keshav Agrawal, aged 45 years. 3. Ajay Kitmar Agrawal, s/o Kcshav Agrawal, a^ed 24 years. (AU r/o Ganja Chowk, Ramgudipara, Raigarh, presenfly residiag at Near Bhoot Baadhan Tank, Baikunthpur, Raiearh /CGl. 4. Satish Sharma, s/o Jagdish Shanna, aged 37 years, Occupation- Driver, r/o Gaaj'a Chowk, SaSssth 5. Dinesh Sharma, s/o Radheshyam Sharma, Occupation-Owaer, r/o Gaaja Chowk, Raigarh, Tehsil & District-Ratourh (CG) Pr^ent: Shri Abhishek Sinha aad Shri G.S.Patel, counsel for fhe appellaat. None for respondent No. 1 Shri K.N.Nande, couascl for respondents No. 4 & 5. APPBLLANT DISURANCE RESPOMDENT8/ CLAIMANTS M.A. No. 218/2006 Oriental Insurance Company Ltd. Branch Offioe-Maa^er, Oriental Insurance Company Ltd., Itwari, Bazar, Rai^urh (CG) VBRSU8 1. Siiresh Shah, s/o Mahesh Shah (dead) through legal heirs. '\~^ HD DRIVER OWNER (a) Sm.t, Leelawati. Surcsh shah. widow of (b) Mesh Ram s/o Kadai Shah, aged 58 years. (Both r/o VflIage-Darba. P.S. Ishwapur, Tehsil-Marhora, District- Chhapra (Bihar) Satish Sharma, s/o Jagdish Shanna, aged 37 years, Occupation- Driver, r/o Gaaja Chowk, Ral^ai'h (CG) Dinesh Shanna, s/o Radheshyam Shanna, Occupation-Owner, r/o Ganja Chowk,; Raigarh, TehsU & District-Raigarh (CG) Present: Shri Abhishek Smlia aad Sbri G.S.Patel, couusel for the appellant None for respondent No. 1 Shri K.N.Naade, counsel for respondents No. 2 & 3 APPELLANT8 CLAIMAWra RE8PONDENTS/ M.A.No. 948/2005 1. Keshav Agrawal son of late Rnmkishan Agrawal, aged about 50 years. 2. Siat. Vimla Devi Agrawal, wife of Keshav Agrawal, scged about 45 years. Both are resident of Gaanja Chowk, Raiagudipara, Raigarh, Tahsil aad District Ra^arh, present address- near Bhutbandhan Talab, Baikunthpur, Ra^arh, Tahsfl aad District Raigarh (C.G.) VERSU8 1. Satish Sharma, s/o Jagdish Sharma, aged 37 ycara, Occupation- Driver, r/o Ganja Chowk, Rateirh (CG) 2. Diaesh Shanaa, s/o Radheshyam Sharma, Occupatiou-Owaer, r/o Ganja Chowk, RaJigarh, Tehsfl & District-Raiaarh (CG) v\\ 3. The Oriental Insurance Coinpauy Lunited, Branch OSce - Manager, Branch Of&ce- Msmaysr, The Oriental Insuran.ee Coiupnay Lnaited, Itwari Bazaar Ra^arh, Tahsil and District Raigarh (C.G.) 4. Ajay Kuinar Agrawal, S/o Keshav AgTawal, aged 24 years, R/o Ganja Chowk, Ramgudipara, Raigarh at present R/o Ncar Bhu&audhan Talab, Baikuafhpur, Raigarh, Tah.sU and District Raigarh (C.G.) APPEALS UNDBR SBCTION 173 OF THE MOTORVBHICT^ ACT Present: Shri Goutam Bhaduri, counsel for fhe appeUaats. Shri K.N.Nande, counsel for respondents No.l & 2. Shri Abhishek Sinha and Shri G.S. Patel, counsel &r Tespondeat No.3 ORDBR (Passed as.y .07.2011) M.A.Nos.208/2006, .218/2006 and M.A.No.948/2005 are being dteposed of by fhis comiaon order as atl fhree appeals arise out of same accident. 2. The appellaat/Oriental Insuraace Contpany Limlted is before us aggrieved and dissatisfied with the award dated 25th April, 2005 passed in Claim Case Nos. 116/2004 and 118/'%)04 whereby and whereunder awards have been passcd awaidiag coinpensation tn favour of the claimants fastening liabitity of payment of coinpensation on fhe appellant/ Oriental Insurauce Conipaay Limited. Appellaats in M.A.No. 948/2005 are fhe clauaauts in. Claua Case No. 118/2004 seeking enhauceiuent. in fhe amount of compeusation awarded by fhc 2nd Additional Motor Accidents Claiins Tribuaal, Raigarh. v\:^ 3. Facts of fhe case ia brief are as under: ^ The accident took place on 7,6.2002 whcn deceased Vijay Kumar Agrawal aad Suresh Shah along wifh ofher deceased/iujured persons were traveUing iu Truck bearing registration No.C.G.l3/ZC/0322 (Old No.M.B.L.6296). Indteputably, it was a goods vehicle. First information report was lodged ia relation theretq wherein the driver of the vehicle was inade aa accused. u) Scparate Claim. Petitions were filed by fhe heirs aad legal representatives of fhe deceased Suresh Shah and Vijay Kumar Agrawal before the 2nd Additiotial Motor AccMents Clauas Tribunal, Raigarh. 4. The leamed Tribunal, on a close scrutmy of the evidence led, held: the driver of fhe tnck responsible for fhe accMent; fhe Oriental Insuraace Company Limited Uable for payment of coiapcnsation to the claimants as deceased Suresh Shah and Vtjay Kumar Agrawal were sittmg ia tfae said truck ia fheir capacity as owners of the goods; awarded Rs. 1,32,000/- along wifh iaterest at 9% per anniim fiToin fhe date of application tiU ita actaal payment to the heira and legal representatives of the deceased - Vijay KumarAgrawaL .5. Shri Abhishek Siaha, leamed couasel appearfag for Oriental Insurauce Coinpaiiy Lmuted would subinit: fhe leacaed Tnbunal has failed to appreciate fhe fact fhat nuinber of persons were teaveUmg in a goods cartynig vehicle apparenfly as passengers and not in fheir capacity as owners of fhe goods and ftius has erred in l\ fastening liabiUty of payment of compehsation upon the Oriental Insurance Coinpaay Lunited. 6, On fhe ofher haad, Shri Goutain Bhaduri, kamed counsel appeariag for fhe appeUante/clauaaats ia M.A.No. 948/2005, while supportnig fhe award so far as fhe leamed Tribiinal has fastened the UabiUty of paymcnt of compensation upon the Oriental Insiuraxice Coiapany Limited, would submit the leamcd Tdbunal has erred iu assessing fhe incom.e of fhe deceased as Rs.15,000/- ^noring fhe evidence adduced in fhe case and iu awatding lom axnount ofcompensation. 7. Shri K.N. Nande, leamed couasel appearfag for owner aad driver supported fhe award and subinitted fhat in fhe facts aad circuinstoaces of the case, the aniount awarded by fhe learaed Tribunal is just and reasonable and also the Oricntal Insurance Company Limited has righfly been held Uable for paymeut of conipensation. 8. We have heard leamed counsel for fhe pardes and perused ttie records offhe Tribunal iacluding award impugned. 9. The appeUaats/clatmaD.ts in M.A.No.948/2005 are parents aad major brother of dece^sed Vijay Kuinar Agrawal. The father and inajor brother of fhe deceased Vijay Kumar Agrawal were ccrtainly not dependents on TiiTn. tAM 10. True, the claimants pleaded: dcceased used to eam Rs.4000/- per nionth but failed to prove the same by leading cltnching and cogent evidence fheicfor, as such, we do not find any mfirmily in fhe approach of fhe leamed Tribunal ia discarding the claunacits' pleading regarding iacoiue ofthe deceased. Moreover, if we take the iacoine ofthe deceased as Rs.2000/- per nionfh aad Rs.24,000/- per amiuni iastead of Rs.15,000/- per amium as assessed by the leamed Tribtinal, it wffl not affect fhe ultunate result The claunants are parents and inajor brofher, therefore, aflter deducting 50% of it towards personal aad Uving expeuses of the deceased and by applying inultfpUer of 10, in view of the decision of the Suprem.e Court in case of Munlcipal Coiporsrtion of Greater Bombav -v- Laxinan Iver and aaoth»(2003) 8 SCC 731 whereia it has been held fhat in those cases where fhe claimante are parents of fhe deceased, inuItipUer shoiild uever exceed 10, fhe overaU coiupensation works out to Rs.1,20,000/-. If wc add a furfher amouat of Rs.10,000/- on ofher heads, the ataount of coinpensation conies to Rs. 1,30,000/- onty whereas fhe leamed Tribunal had already awarded Rs.,132,000/-. Thcrefore, we do not find aay force ia tlie appeal preferred by fhe claunaats seekiag eiihaacenient iu the amount of coiupensation awarded by the Tribunal. 11. Th€--main controversy in these appeals, flierefore, centers around tfae fact: whether the persons travelliag ia the truck were gratuitous passengers or sitting in ffae truck in their capacily as ^ owner ofthe goods beiag carried ia fhe truck, ia tenns Section 147 (l)(b)(J} ofthe Motor Vehicles Act (for short 'the Acf), 12. A bare perusal offinal report (EX.A-2) wouM show: deceased Vijay Kiunar Agrawal aud Suresh Shah along with oftier deceased/iajured persons weae traveUing in fhe truck ia question as gratuitous passengers and not in. fheir capacily as owners offhe goods beiug carried in fhe veliicle, Indisputabty, it was nobody's case fhat deceased Vijay Kiuaar Agrawal aud Siiresh Shah were sitting iu the Cabiu of fhe Truck as owners of fhe goods beiag carried in fhe Truck. 13. As per the statement of Gyaa Prakash (A.W.2) ia Clahn Case No. 118/2004,12 to 15 pcrsons were traveUmg in the tnick at the tiine of accident and were goiag fix>in Rengali (Orissa) to Raigarh (Chhattisgarh). The seizure of goods said to be carried ui ttic vehicle by fhe deceased persous was also not efFected by the poUce. The Act does not contemplate fhat a goods carriage shaU carry a lai^e uuinber of persons with a amaB pereentage of goods as considerably the insurance policy covers fhe death or iajuries eifher of the owner of the goods or hls authorized representative. Furfher, the owner offhe goods means only fhe person who travels jn the cabin of fhe vehicle and traveUing wifh fhe goods itself does not entitle anyone to protectkin under Section 147 ofthe Acfc 14. The Supreme Court ia fhe case of NaUoaal Insurance Co. Ltd_v. ChoUetI Bharataama and others, (2008) 1 SCC 423 held as under: ,^r~'^\ s? ^fc. ii "v^ k'fe^. V ./ ^'i'>-... v "8. The Act does not conteinplate fhat a goods carriage shall cany a lea-ge. number ofp^sengers wifh sinall percentage of goods as considerably the iasurance poUcy covers fhe deafh or iajurics eifher of the owner of fhe goods or his aufhorized representative. xxxxxx xxxxxx xxxxxx xxxxxx 19. It B now weU setded fhat the owner of fhe goods ineans onty the person who travels iu fhe cabin ofthe vehicle. 20. In fhis case, fhe H^h Court had pnoceeded on the basis ftiat fhey wcre gratuitous passengers. .The admitted plea of ttie respondeate themselves was fhat the deceased had boarded the lorry aad paid an amount of Rs.20 as teansport charges. It has not been proved that fhe deceased was teaveUing in. ftie lony along wifh fhe driver or fhe cleaner as fhe owner of the goods. TraveUiag wifh fhe goods itself does not entitle anyone to protection under Section 147 of the Motor Velucles Act" 15. By apptying the law laid down by fhe Supreine Court ia ffae case referred heremabove, we have no hesitation to hold that deceased Vijay Kumar Agrawal aad Siiresh Shah were teaveUing in truck as gratiutous passengers and not as owners of fhe goods being carried in the truck. 16. In view of the various pronounceiaeuts of Hon'ble Apex Coiirt, it is now setUed: statutoiy Uabilily of fhe iasurance poUcy caanot be extended to cover the risk of gratuitous passengers sitting iu fhe goods carriage vehfcle. 17. In view of the above, in our considered opmiou, fhe leamed Tribunal went wrong in fastening the liability of payiuent of .-*-^ ^.^-"••Tr'"-^ .^' ./-i".— '\.. fv'\ -S A "y -s '•A.. i?' ^ •;•-.,. ^•v.-^e^ ^y' VI-1 coinpensation upon the appeUaat/ Oriental Insuraace Coiapaay Lmuted aad fhe above finding deserves to be set asidc. 18. For the reasons aforexnentioned, M.A.No.948/2005 for enhauceinent of coinpensation is disiufesed. M.A.Nos.208/2006 and 218/2006 filed by thc appeUant/ Oriental Insuraace Compaay Limited are allowed. The awaids are set aside to fhe extent learued Tribiuial has fastened fhe liabUity of payiaent of coinpensation upon fhe appeIlant/Oricntal Insurauce Cojupaay Limited. The award is inodified to above extent Rest of fhe condtdons of fhe award shall reinaia intact. However, it is directed that in case diu-mg fhe pendency of fhese appeals, if aay amount has been deposited by the appellant/Oriental Insurance Coinpany Limited and disbursed to the claunants, then fhe appeUant/Oriental Insuraace Conipany Liinited shaU be entifled to recovexy fhe saine fiTOin fhe owner offhc vehicle by filing execution petition before fhc concemed Tribunal. The claimants are entifled to execute the award against the owner offhe vehicle. 19. In fhe facte and circumstances, there shaU be no order as to costs. Sd/- ChiefJustice Sd/- N.K.Agarwcii