^ HON'BLE IN THE HIGH COURT OF CHHATTISHGARH AT BILASPUR IVI.A.(C) No.- H^c]/^ APPELLANT 'I'iifeion iRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., AMBIKAPUR, THROUGH DIVISIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD. OPPOSITE HIGH COCRT, BILASPUR C.G. Vrs. RE^PONDENTS » ^e' .^s^ :-1. CHANDBIWI S/0 AGE ABOUT 45 yrs. WIDOW ^11-" SHAHABUDDIN 2.J(^ MOHAMMAD SHAHID AGE ABOUT 22 YRS. S/0 LATE SHAHABUDDIN 3.JL- HAMID MOHAMMAD AGE ABOUT 14 YRS. S/0 LATE SHAHABUDDIN 4.^ SITARA BANO AGE ABOVT 12 YRS. D/0 LATE / ^1^®^^/^^^x!^y^^ n'^h'S' 'C-Vi'id.S^-ti 'Yesr""*^ H"--t ALL RESIDENT 6f SOUTH JHAGARAKHAND KALARI, BADI DAFAI, NAYEE LEDARI , MANENDRAGARH, DISTT.- KORIA C.G. PRESENT ADDRESS - THROUGH KHATRI RUI BHANDAR KARGIROAD KOTA, DISTT.- BILASPUR C.G. RAMAVATAR AGE ABOUT 23 YRS. S/0 MANIRAM BANJARE, R/0 BADI LEDARI, THANA MANENDRAGARH, DISTT.- KORIA C.G. (DRIVER OF SCOOTER N0.- C.G. 16 Z.E./3998) MANIRAM BANJARE AGE ABOUT 52 YRS. S/0 HIRA BANJARE, R/0 BADI LEDARI, THANA MANENDRAGARH, DISTT.- KORIA C.G. (OWNER OF SCOOTER N0.- C.G. 16 Z.E./3998) APPEAL UNDERSECTIQKL173 OF MOTOR VEHICLE ACT HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (C) No. 433 of 2007 Appellants Respondents Versus Mus. Chand Biwi 8s others Rara Avtar 8s others And M. A. (C| No. 449 of 2007 Appellant Respondents Versus Branch Manager, the Oriental Insurance Company Ltd. Chandbiwi SE others DB: Hon'ble Mr. Justice I. M. Quddusi 8s Hon'ble Mr. Justice Prashant Kumar Mishra Ms. Bhagwati Kashyap, Advocate for the appellants/claimants. Shri Sudhir Agarwal, Advocate for the appellant/Insurance Corapany. Ms. Usha Chandrakar, Advocate for the respondents/driver and owner. O R D ER (Oralt (Passed on this 6th day ofApril, 2011) Per I. M. Quddusi, J. 1. The aforementioned both the appeals are being decided by this coinmon order as both are afiee from the award dated 15.12.2006, passed by the 9th Additional Motor Accident Claims Tribunal (FTC), Bilaspur in Claim Case No. 150/2005 (Mst. Chand Biwi 8s, others Vs. Rani Aytar 8s others). 2. The M.A.(C) No. 433/2007 has been field by the claimants for enhancement of the amount of compensation, whereas the M.A.(C) No. 449/2007 has been filed by the Oriental Insurance Company on the ground of liability and quantum. '( 3. We have heard learned counsel appearing for fhe parties and perused the lower Court record. ...--"' ,..^ .-^^s /.^sa^ 7. 8. Brief facts, in nutshell are that on 20.12.2004 deceased Mohd. Naseeni was going to Manendragarh from village - Ledri on the scooter, bearing registration No. C.G. 16-ZE/3998, as a pillion rider, which was being driven by the non-applicant No.l. (Ram Avtar). According to the clairaants, due to rash and negligent driving by the non-applicant No. 1 fhe scooter struck with a road side stone thus met with an accident. In that accident Mohd. Naseem and Ram Avtar both received injuries and Mohd.Naseem succunibed to the injuries during the course of treatment at Central Hospital, Manendragarh. The offence of the incident was registered by the Police Station - Manendragarh against the non-applicant No.l. The claimants, being legal heirs (mother, 2 brothers and one sister) of deceased Mohd. Naseem filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 13,99,000/- under various heads. Leamed Claims Tribunal having regard to the facts situation and the evidence on record awarded a sum of Rs. 3,55,500/- to the claimants as compensation. Leamed counsel for the appellant/Insurance Company submitted that no extra premium was paid by the owner of the vehicle for the pillion rider. The deceased was admittedly a pillion rider and as such the insurance company should not have been made liable to pay the l^' compensation. Leamed counsel appearing for the owner and driver submits that this is a case of death of a pillion rider, who was traveling on a two-wheeler/scooter. It is incorrecf to say that there was no insurance of pillion rider as for the policy 'Liability Only Policy for Zone -B Motorcycle', Rs. 48/- has been taken as premium for 'Any Extra ;;<-'"—i«^ /.f "^ss'^'_..,5/' 'y^"" s»i3.:.,.W<* Loading'. There cdnnot be any extra load permissible on a scooter/motorcycle, except the pillion rider. Therefore, the Insurance Company has been rightly held as liable to pay the amount of compensation, treating the preiniura paid by the owner of the vehicle/scooter towards 'any extra loading' for the person i.e. the pillion rider. 9. We have perused the insurance policy in question and found that it was a "Liability Only Policy for Zone B Motorcycle" and Rs. 48/- was paid for 'any extra loading'. In a vehicle, which is a two-wheeler, what was the purpose of charging premium towards 'extra loading' has not been explained by any of the witnesses and therefore we feel it proper that the Claims Tribunal should determine this and then impose the liability accordingly. •'. > - .. - . „ .. ~ 10. With regard to the enhancement of the amount of compensadon in M.A.(C) No. 433/2007, which has been Held by the appellants/clairaants, we are of the opinion that since we intend to remit back the matter in M.A.(C) No. 449/2007 to the Claims 1- .. trAunal, it would be better for the claiinants to make a prayer for enhancement before the Claims Tribunal itself and if such a prayer is made the Tribunal should consider and decide the same and pass order accordingly. 11. Therefore, we allow M.A.(C) No. 449/2007 in part, set aside the inipugned award dated 15.12.2006 and remit back the inatter to the Claims Tribunal for decision afresh in the light of the observations made in the foregoing paragraphs and taking into account the provisions of Section 168 of the Motor Vehicles Act, 1988 and Rule 226 of the M.P./C.G. Motor Vehicles Rules, 1994. , - - ' l :v:!&ivi%, s .^.^' <^? 12. In M.A.(C) No. 433/2007 we are not inclined to consider the question of enhanceinent at this stage as we have already observed that the claimants naay make a prayer before the Claims Tribunal for enhancement and in turn the Claims Tribunal shall consider the prayer of the claimants and pass an award in accordance with law. Thus M.A.(C) No. 433/2007, filed by the claimants is disposed of accordingly. No order as to costs. 1.3. 14. 15. 16. 17. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the docunients verified ete. Thereafter, the decision shall be raade by the Tribunal on merits. Parties shall appear before the Claims Tribunal on 5.5.2011. The amount, if any, deposited with the Tribunal shall remain in deposit till fresh decision is taken by the Tribunal. The lower Courts record shall be sent back forthwith. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge l-te