sl; ^s. ^- ^ "sii HIGH COURT OF CHHATTISGARH AT BILA BIBBi)t%:^ T^^£B;l^£ii•^i^-'''?'^'' ISs^y5^Si.:^' ^S'^'. aa%Bftas;'..ss's^ vsssss' Before: Hon'ble Shri Dilip RaosahebsDeshmukh, J. ''5;w ??£" li^S^& ,\S"!£!.t^f: '^i. 'M^i,..:' .•.;INIisc-'^!l>ll^(^)*!^!!^31!Sioli?Sia:1. ':'';:" ::^Si^if^^^ 1^:—:•'^-•VS:^ ^.^^^^^^^i^^^^Sii^^^^SsS''^-:'^<'^i^ _ -^ ;?t8SiSSUS[i^^'' ^ l^MS" ;s3^gB!81EKSffBI K|BBiiP%:sCon'1pany t^W^MrAW^^.S9SSS^ISK:.'UanageT, Branch-Office^ i^mbikapur, Distt. Surguja (C.G.) ^ i ResDondents (APPLICANTNO.D ^•MsSffiMKBa. ..^S' yv.rsi^^-^^\':'' ''" ^ •'::•'- :'r-i:;'.' ^lfiil3li£i©Iifr^i©^ ^^- '-^•••ssKy (NON-APPLICANT N0.1) (NON-APPLICANT N0.2) ; (NON-ARRLICANT "•.'•^s^Ss'S^'^^^'.' !:-'^ ••^••'.' ' ^•:'^ 's'^:-.^;te~;^'--':^'''' ;• . .."•>•' versus 1. Smt. Bodali Bai, W/o Ranikripal, aged 42 years, FVp-Ekata Nagar, House No. 229,:GQclaripara,^S.-^liirmiri,Tahsil- 1 ^^.^l9riendi^igji^|g^|^j^|©©),;:| ^S^ 2; '^W^y-^^wS^fSW- 3aS^SSS 'ssv ^•^|a®|^;^|BIS^ u6e:'Ncfe: 229v^ciariparaglFlSSg'@Birmiri,Tahsil- Manendragarh, Disff.-Kon&(CGy 3. South Eastern Coat Field Limited, Thrbugh: Chief Gerieral Manager, Chirmiri Area, Distt. - Koria (CG) 4. Depot-Qfficer, Regional Store Korea, SECL, Ctiirmiri, Distf.-K6ria!(CG) 5. Shaokai^asKLS^i-|:Bliaratdash,: aged 3&yea®|I?/Q:^£@E3Sa®iHp,ara, Chirmiri, ^' •Botl }^J"^JogiK|-g%|^at3^P.S-. Khaclgviiion;g?7!®''TaHsil':Manendragarh, Distt.Koria (CG) Appellants Misc. Appeal (C) No. 1292 of 2007 1. South Eastern Goal Field Limited, Through: Chief ^Generat Manager, ChirmiriArea; DJstt?|-Korea(CG)^ ^ ; 2. Depot-G)ffJceFta^egiona|K;Store;Kprea^ :Soutli^i^asterng||jEgalfielgsy.^Umited, ehirFdiri-^rea, ©istlp<(yea(eG) fe versus ResDOndents (Claimant N0.1) fRespondent/ Claimant No.2 W£^ ResBondent/ YNbn-Claimant No.3) 1. Ratan Kumar Saha, S/o Late Shri Kalidas Saha, aged about 46 years. 2. Smt. Suchitra Saha, W/o Ratan Kumar Saha, aged about-42 years. Both R/osEkta tMagar^House No. 233, .Goari^F'aragsThana, ^Chirmiri, Tehsil, i ManBnclragarlT,DistncfKorea(CG) 3. Shaiikaf ©a?:S/o>£-a:BtiaratDas Panika, aged 38 yeairs^'R/0-Old Godri Para, »i Respondent/ (Non-Claimant N0.4) Chirmiri, Thana Chirmiri, Distt- Korea (CG). 4. United Fndia Insurance Company Limited, Through: Branch Manager, Branch-Office, Arnbikapur, Distt. Surguja (C.G.) Misc. Aopeal (0 No. 1244 of 2007 Appellant Non-Applicant No.4 ResDondente (APPLICANT N0.1) (APPLICANT N0.2) 1. 2. (NON.APPLICANT N0.1) (NON-APPLICANT N0.2) (NON-APPLICANT N0.31 United India Insurance Company Limited, Through: Branch Manager, Bianuh-Office, Ambikapur, Distt. - Surguja (C.G.) versus Ratan Kumar Saha, S/o Late Shri Kalidas Saha, aged about 46 years. Smt. Suchitra Saha, W/o Ratan Kumar Saha, aged about42 years. Both R/o Ekta Nagar, House No. 233, Godri Para, Thana, Chirmiri, Tehsil, Manendragarh, District Korea (CG) South Eastern Coal Field Limited, Through: Chief Geoeral Manager, Chirmiri Area, Distt. - Koria (CG) Depot-Qfficer, Regional Store Korea, SECL, Ghirmiri,.©istt.-Kona(CG) Shankardash S/o - Bharatdash, aged 38 years, R/O-Old Godaripara, Chirmiri, Distt-Koria(CG). Both are R/o-Village-Devadah, P.S- Khadgwaon, Tahsil-Manendragarh, Distt. Koria (CG) MLsc._ADDeal (C) No. 1271 of 2007 3. 4. 5. Appellant Non-Appticant No.4 Respondents (ClaimantNO.1) (Respondent/ Claimant No.2 ResDondeny 1. South Eastern Coal Field Limited, Through: Chief Generai Manager, Chirmiri Area, Distt. - Korea (CG) 2. Depot-Officer, Regional Store Korea, SECL, Chirmiri Area, Distt.-Korea (CG) yersys 1. Smt. Bodali Bai, W/o Ramkripal, aged 42 years, R/o-Ekta Nagar, House No. 229, Godripara, P.S. - Chirmiri, Tahsil- Manendragarh, Distt-Korea (CG) 2. Ramesh Kumar, S/0- Ramkripal, Aged- 18 Years, R/o Ekta Nagar, Godripara, P.S. - Chirmiri, Tahsil-Manendragarh, Distt.-Koria (CG) 3. Shankar Das S/o - Bharat Das Panika, ;y «S»B:- • (Non-Claimant No.3t Respondent/ (Non-Claimant N0.41 aged 38 years, R/O-Old Godri Para, Chirmiri, P.S. Chirmiri, Distt- Korea (CG). 4. United India Insurance Company Limited, Through: Branch Manager, Branch-Office, Ambikapur, Distt. Surguja (C.G.) Miscellaneous Appeal Under Section 173 of the Motor Vehicle AcU988; Present : Shri Dashrath Gupta, counsel for the appellant (in M.A.(C)Nos.1243/2007 and 1244/2007) and for respondent No.4 (in M.A (C) Nos. 1292/07 & 1271/07) Shri Gautam Khetrapal, counsel for the respondents No.1 & 2 (in M.A.(C) Nos. 1243/2007) Shri Vivek Ranjan Tiwari, counsel for the appellants - SECL (in M.A.(C).No.1292/2007). Shri Praveen Das, counsel for the appellants - SECL (in M.A.(C) No. 1271/2007) Shri Sanjay K. Agrawal, Advocate with Sourabh Sharma for the respondents No.1 & 2 (in M.A.(C) No. 1244/2007) ORAL ORDER (Passed on 19tn of February,2008) Two appeals (M.A.(C) Nos. 1243/2007 and '1244/2007] by insurance company and two cross objections for enhancement of compensation by the claimants filed therein and two appeals filed by theowner [M.A.(C) Nos. 1292/2007 and lffil/2007] arising out of claim case Nos. 10/2007 and 14/2007 are being disposed of by this common order. 2. Admittedly, South Eastern Coalfields Limited (for short, the SECL) was, on the date of accident i.e. 21.10.2005, owner of the truck No.C.G.16- A/0651, a goods_carriage (hereiffafter referred to as the 'truck'). It had permitted the truck to be used fortaking the dead body of the father of one of its employees i.e. Shyam Biharifor cremation. The truck was being driven by the respondent Shankar Das (henceforth the 'driver'). After cremation, on --^L.^__^^f_ ^-^^^^ft^^rf^; '•'^-a3»C^CIEB!a®!B^S?®»aS!BS^^^,i-»:i~-TC-^^ ..'i.-u-'':'-?^ IS^:;S!T-: .'.••'•'"-tjE'^-L-- "''TBK'^^. iyii;^^ » return Ranjan Kumar Sahu, aged 22 years and Sanjay, aged 23 years wer< being carried in the truck by the driver. The truck dashed against the bridg; and turned turtle. Both Ranjan Kumar andSanjay died. Claim case No 14/2000 and claim case No. 10/2000 were filed by the parents of bo deceased respectively for compensation before the 2nd Additional Motor Accidents Claims Tribunal (F.T.C.), Manendragarh, Korea (hereinafter referred to as the M.A.C.T.) ./ 3. In both cases, the M.A.C.T. assessed compensation by taking the notional yearly income of the deceased at Rs.15,0p0/- and deducting 1/3r therefrom towards personal expenses of the deceased and adopting a multiplier 17. Break up of the compensation awarded by the M.A.C.T. in each case is as under: IN CLAIM C & N0.14/2007 AND Cl-AIIVI CASE N0.10/2007 A. Towardslossofdependency B. Towards loss of love and affection and also funeral expenses C. Towards loss of estate Total Rs. 1,70,000.00 Rs. 12,500.00 Rs.. ,2,500.00 Rs. 1,85,000.00 4. The M.A.C.T. held that the insurance company was not liable to pay compensation in view of the breach of the policy condition that gratuitous passengers were being carried in a goods vehicle. It, however, fastened the liability on the owner i.e. SECL, its depot Officer, driver Shankar Das and the insurance company jointly and severally to pay the compensation, It directed that the insurance company would pay the compensation and recover it from the SECL, its depot Officer and the driver. It further directed that the SECL could, if it so desired, pay the compensation first to the claimants. Interest at the rate of 9% per annum was awarded on the amount of compensatiqil i "^ iss-':' I^3^^':.-': provided the compensation was deposited within a^periifd of 30 days from the date of award, failing which, interest atthe rate of 12% per annum was to be paid from the d3(B<of award till realization of the amount of compensation. 5. Shri Vivek Ranjan Tiwari and Shri Praveen Das, learned counsel appearing for the owner i.e. the SECL did not dispute that the insurance company was neither under any statutory liability nor under any contractual liability to cover the risk of gratuitous passengers, who died in the accident and were being carried in thetruck, a goods vehicle. 6. The main thrust of the arguments of learned counsel for the owner i.e. the SECL is that there was no willful infringement of the policy condition by the owner. The SECL sanctioned the use of the truck only for carrying the dead body of the father of Shyam Bihari, and was therefore, in the aforesaid circumstances, notunder any vicarious liability t6 pay cbmpensation. The order of recovery of compensation by the appellant - insurer from the owner was, therefore, bad in law. Reliance was placed on United India Insurance Company Ltd. v. Swinder and others, 2005 (1) TAC 217 (Punjab & Haryana), and Prem Kumari & ors. v. Prahlad Dev & ois., 2008 AIR SCW 882. 7. Shri Goutam Khetrapal and Shri Sourabh Sharma, learned counsel appearing for the claimants in M(A.(C).Nos.1243/2007 and 1244/2007 argued that the M.A7C.T. has jurisdiction to order the insurance company to pay compensation first and to recover the same from the owner. Reliance was place ,on Smt Sunita Jain and others v. KunwarSingh @ Raju Vishwakarma and other, 2007 (2) Bfl.P.H.T. 417; A/affona/ Insurance Co. Ltd. v. BalJltKaur, (2004) 2SCC 1 : 2004 ACJ 428, Newlndia Assurance 'SSt! Co. Ltd. v. Asha Rani and others, 2002 (9) SCALE 172: 2003 (2) S.C.C. 223, New India Assurance Co., Shimla v. Kamla and others, (2001)4 SCC 342 : 2001 (2) T.A.C. 243. Learned counsel argued that the owner i.e. the SECL was under a vicarious liability to pay compensation for the acts of its driver. It was argued that the M.A.C.T. erred in assessing compensation on the |basis of yearly notional ihcorrie anct oUght to have assessed th< nribnthly income ofthe deceased at Rs.3,00 . !:The amount awarded by the M.A.C.T. under conventional heads was not assailed. •'^s"3- 'SS^i '•I- • i^ 8. Shri Dashrat'n Gupta, learned counsel for the insurance company urged that in view of the fact that passengers were being carried in a goods carriage, the insurance company was not under any liability, statutory or contractual, to pay compensation. It was further urged that the M.A.C.T. had no jurisdiction, in the above situation, to order the insurance company to pay the compensation first and to recover it from the SECL. Reliance was placed^ on New India Assurance Co. Ltd. v. Diwakar and others, 2006 (2) T.A.C. 937 (Bombay High Court), National Insurance Co. Ltd. v. Bommithi Subbhayamma and others, 2005 (2) TAC 1 (SC) and Oriental Insurance Co. Ltd. v. Smfc Raj Kumari and Ors., AIR 2008 S.C. 403 and the unreported judgment rendered in United India Insurance Co. Ltd. v. Anubai Gopschand Thakare, passed in First Appeal No. 827 of 2006 by Aurangabad Bench of Bombay High Court. 9. Having heard the rival conientions, 1 have perused the record. Since it has not been disputed by the learned counsel for the owner i.e. the SECL that the insura^e company was not under any liability, statutory or contractual, to cover the risk of gratuitous passengers being carried in the truck, a goods carriage, there is no need to dwell any further on it. The only asssss?ii: Bi8Bs°!i£? point that requires consideration is whether in such a situation the M.A.C.T. erred in ordering the insurance company to pay compensation first and to recover it from the owner. It is pertinent to note that the M.A.C.T. has held that the liability to'^§compensation was joint arid several on the insurance company, SECL and the driver. It further directed that the SECL may, if it so desired, pay the compensation and the interest to the claimants instead of paying to the insurance company in recovery proceedings. It is true that in National insurance Co. Ltd. v. Baljit Kaur, New India Assurance Co. Ltd. v. Asha Rani and others, New India Assurance Co., Shimla v. Kamla and others (supra)and National Irisurance Co. Ltd. v. Kusum Rai" ancf others, 2006 (2) T.A.C. 1 (SC), the Apex Court has in exercise of its extraordinary jurisdiction under Article 142 of the Constitution of India ordered the insurance company to pay compensation first and recover it from the owner. The decision of the Apex Court in National Insurance Co. Ltd. v. Bommithi Subbhayamma and others (supra) also applies with full force to thecase in hand, in which, it has been held that in such a casethe insurance company is not liable to pay compensation first to the claimants and then to recover it from the owner. In National Insurance Co. Ltd. v. Bommithi Subbhayamma and others (supra), the Apex Court rsferred to the following observation -e^-tts- in New India Assurance Co. Ltd. v. Asha Rani and others, 2003 (2) SCC 223, as under: "The observations made in this conncection by the in Asha Rani case (supra) to which one of us, Sinha, J. was a party, however, bear repetition : 26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are ofthe opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicte insured for any passenger travelling in a goods vehicle, the insurers would •ss.—^\y/^- : I"*'—:~^ not be liable therefore. In Asha Rani (supra) it has been noticed that sub-clause (i) of Clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicie must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view ofthe 1994 Amendment would only cover a third party as also the owner of the goods for his authorized representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. It is, therefore, manifest that inspite of the amendment of 1994, the effect ofthe provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would, now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liabiiity of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was enteredinto, nor any premium was paid to the extent of the benefit of insurance to such category of people." 10. There is thus no provision under the Motor Vehicles Actwtijj authorizes the M.A.C.T. to order the insurance company to pay the compensation first to the claimants and to recover it from the owner after recording a finding that the insurance company wtas not under any liability, statutory or contractual, to pay compensation. In this view of the matter, M.A.(C) No. 1243/2007 and M.A.(C) No. 1244/2007 deserve to be allowed. 11. The argumehts advanced by the learned counsel for the appellants in M.A.(C) Nos. 1292/2007 and 1271/2007 also do not hold good. The mere fact that the SECL had sanctioned the use of the truck only for carrying the dead body of the father of an employee would not absolve the SECL from its vicarious liability for the act of its driver/employee to wit carrying of • !B?-pet?R'^?^^Si ^iu....i:.;.^::,., —^ passengers in the truck while returning from the cremation. The principle of vicarious liability applies to the facts of the case at hand and the appellant/owner i.e. SECL cannot escape its liability to pay compensation. M.A.(C) Nos. 1292/2007 and 1271/2007 are, therefore, liable to be dismissed. 12. So far as the quantum of compensation is concerned, in claim case No. 14/2007, the claimants were the parents of deceasedwho were aged 42 years and 46 years. The average age comes to 44 and the multiplier applicable would be 15, according to second schedule. Similariy, in claim case No. 10/2007, fhe claimants were the mother and brother of deceased who were aged 42 years and 18 years respectively. If the age of the mother is taken into consideration, then multiplier appliqable would be15, as per second schedule whereas the M.A.C.T. has applied multiplier 17. It is thus clear that the M.A.C.T. has already applied much higher multiplier in both cases while awarding compensation. So far as the personal income of the deceased is concefcd, no reliable evidence was led by the claimants before the M.A.C.T. Therefore, in my considered opinion, the M.A.C.T. wasjustified in assessing compensation on the basis of notional yearly income. In the facts and circumstances of the case at hand, the approach of the M.A.C.T. can, therefore, not be faulted. The compensation awarded already being on the higher side, the question of further enhancement does not arise. 13. In the result, M.A.(C) Nos. 1243/2007 and 1244/2007 filed by the appellant insurance company are allowed. The impugned award dated 31.07.2007 passed in both claim case Nos. 10/2007 and 14/2007 are modified. The appellant insurance company is not under any liability to pay compensation and interest as awarded by the M.A.C.T. Liability to pay _L-——- -—r,. t ^^M;. ^ -•^ws& .y -sy ?ia :ti 51^7' i i^:'; compensation with interest as awarded rests squarely with the SECL and the driver. Compensation deposited by the ^ppellant insurance company under order dated 02.11.2007 passed by this Court shall be refunded to it by the M.A.C.T. Cross objections filed by the claimants in M.A.(C).Nos. 1243/20Q7 and 1244/2007 are rejected. M.A.(C) Nos. 1292/2007 and 1271/2007 filed by the owner i.e. SECL are dismissed.r~ sd/- j DUip Raosaheb Deshmukh r Jydge 19.02.2008 Anjanj