=-^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH -AT BILASPUR (C.GJ M.A.(aNo. l^U of^W '2~^^\^, y&^ 6>^sM'f^ ^-v -- APPELLANT RESPONDENTS VERSUS :1. Sewakram Qhruw, aged about 33 years, S/o Late Nohari Dhruw R/o Village-Boirdih, P.S.-Palari, District- Raipur (C.G.) Mukesh Kumar Dhruw, §/o Shri Ramkumar Dhruw, R/o Village-Kirna, Post-Baikunth, Tahsil-Safswwa, District-Raipur (C.G.) _ g^r>-ay5w^ ^•^.^. ....•.•••" ,. /l>^^. ()^,}-. ^:^5^4 2. The New India Insurance Company ...—— 1 imi+^ri thrniiah Branch Manafler, p9.HO--^ •^^t~lv"~ .. pyerf2^,,.—^ ^^"^^Y Limited, through Branch Manager, Branch Office Baloda Bazar, District- Raipur (C.G.) ni AIM RFFORE THE TRIBUNAL : Rs.3,18,000/- AWARD AIVIOUNT •• Rs- Nil/- VALUATION OFTHEPRESEN1APPEAL: Rs. 3,18,000/- MISCELLANEOUS APPEAL U/S. 173 OF THE MQTOR VEHICLE ACT.1988 / ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Respondents M.A.MNo. 166/2011 Gulab Singh Dhruw Vs Mukesh Kumgr Dhruw and another ^ Appellant Respondents M.A.MNo. 164/2011 Sewakram Dhruw Vs Mukesh Kumar Dhruw and another Present: Mr. Goutam Khetrapal, counsel for the appellant. Mr. H:P. Agrawal, counsel for respondent No. 2. ORDER (Orall (21stSeptember,2011) Perl.M. Quddusi. J 01) Heard on IA Nos. 01, applications for condonation of delay in filing these appeals as the same li;ave been preferred with a delay of 550 days. 02) On due consideration of the reasons assigned in the above applications, which are also supported by the affidavits, we are of the opinion that the appellants have been able to explain the delay satisfactorily. Accordingly, the applications (IA Nos. 01) are allowed and delay in filing the appeals is hereby condoned. 03) With the consent of the parties, the appeals are being finally disposed of at the admission stage itself. 04) Since these two appeals filed by the injured/claimants, who were pillion riders in two wheeler, are directed against the impugned awards of 12th Additional l^otor Accident Claims Tribunal (FTC), Raipur (in short "the Tribunal") ,dated jQpun qoee -/OOO'GI.'C'sy jo uoiiesuedLuoo e JQJ (,,8861. 'PV 9ML IJOLIS U!) 8861. 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However, learned Tribunal, after close scrutiny 6f the evidence adduced by the parties before it, dismissed both the claim petitions. 07) It is not in dispute that the insurance policy was a comprehensive policy and the Insurance Regulatory and Development Authority, vide its Circular dated 16th November, 2009, has directed all the insurance' companies to follow the earlier circulars issued on 18 March, 1978 regarding bccupants carried in private car and 2 June, 1986 regarding pillion riders in a two wheeler and further directed that these circulars make it clear that the insured's liability in respect of occupant(s) carried in a private car and pillion ridercarried on two wheeler is covered under.the Standard Motor Package Policy (Comprehensive Policy) and these circulars shoutd be complied with, and non-compliance of the same would be viewed seriously by the Authority. 08) We have heard learned counsel fo'r the parties, perused the LCR as also the impugned awards. 09) Since both the claim petitions were filed under Section 163A ofthe Act, 1988 and sub-section (2)of Section 163A provides that any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person, the claim petitions were maintainable as the annual income of the victims, as shown in the claim petitions by the claimants, was Rs.36,000/- i.e. less than Rs.40,000/-. Therefore, it was the duty of theclaims Tribunal to fix the amount of compensation in accordance withsecond schedule given in the Act, 1988, but the same has not been done. 10) The claims Tribunal has also not framed any issue regarding breach of.conditions of insurance policy and whether the driver was having a valid and effective driving licence on the date of accident or not. 11) It is also seen that there were two pillion riders sitting in the two wheeler, whereas only one pillion rider is permitted to sit on the motorcycle behind the rider. Section 128 of the Act, 1988 provides that no driver of a twp wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the driver's seat with appropriate safety measures. Therefore, even in case the driver was having a valid and effective driving IJcence on the date' of accident and there were two pillion riders carried on the motorcycle, the insurance company would be responsible to pay compensation in respect of one pillion rider permissible under the Act. However, it would not be' responsible to pay compensation in respect of other pillion rider, who was sitting against the terms and conditions of the insurance policy, and to pay compensation to that pillion rider is the sole responsibility of the owner of the vehicle. But in case, it is found that the driver of the two wheeler in question was not having a valid and effective driving licenceon the date of accident, the responsibility to pay compensation is solely of the owner of the vehicle. 12) While deciding the claim petitions, the learned Tribunal should have considered the law laid down by the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. Vs. Anjana Shyam and others reported in (2007) 7 SCC 445, that the insurance company would be compelled to deposit the higher of the amounts of compensation awarded to the extent of number of passengers covered by the insurance policy. However, it has not been done. 13) In view of the above facts and circumstances of the case, we are of the opinion that the matter requires reconsideration at ^%j[^g,i?<^-:»^»»^^ffir<^^^,;^~R3^.^r.yuuy.-.;-^^^^ ^ the end of the Tribunal in the light of observations made above. 14) In the result, the appeals are allowed in part, the impugned awards are set aside and the matter is remitted back to the Tribunal to decide the cases afresh after giving opportunity of hearing to the parties, in the light of the observations made above, as early as possible, preferably within a period of three months from the date of appearance of the parties. In the interest of justice, the Tribunal should decide both the claim cases by a common award as they arise out of the same accident. 15) Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc. and thereafter, the award shall be made afresh. 16) Parties shall appear befpre the Tribunal on 16th November, 2011. 17) LCR shall be sent back to the Tribunal without further delay. 18) No order as to costs. 19) Certified copy as_per rutes. Sd/- Dr.I.M.Quddusi Judge Sd/- G.Mmhajuddin Judge ^.^•^^,i,^