09 ^'^v^ /^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH BILASPUR M .A.fa N0. ^/ /2007 MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 APPELLANT NON-APPLICANT N0. 2 ./.'^ ^•^•"...••- ^w .-^" <y VERSUS RESPONDENT ^ 5> /L CLAIMANTNO.l ^ RESPONDENT 2^ ^ ^ CLAIMANT N0.2 RESPONDENT ,3. CLAIMANT N0.3 ^' ^ RESPONDENT ^. ^^ CLAIMANT N0.4 ' / '• RESPONDENT 5^^ CLAIMANTN0.5 ^~^ RESPONDENT CLAIMANTNO.^ ^ ;lv 6^ Narendra Kumar Bhatariya, aged about 40 years, son of Shri M.L. Bhataria, resident of Quarter No. 3-B, Street No.23, Sector - I, Bhilai, Tahsil and District Durg (CG) foi^ne^ of offendina Bullero) Smt. Urmila Sahu, aged about 48 years, widow of Late Khilendra Kumar Sahu. Teerath Ram Sahu, aged about 30 years, son of Late Khilendra Kumar Sahu, Ishwar Lal Sahu, aged about 27 years, son of Late Khilendra Kumar Sahu, Hemant Kumar Sahu, aged about 23 years, son of Late Khilendra Kumar Sahu, Bhuwan Lal Sahu, aged about 80 years, son of Late Halali Ram Sahu (Since Dead^ Smt. Inda Bai Sahu, aged about 75 years, widow of Bhuwan Lal Sahu, All are resident of village RESPONDENT NON-APPLICANT NO.lCD&ive^) (^ (D RESPONDENT NON-APPLICANT N0.3C;^5oe-&RJ_ Utayee, Post Utayee, P.S. Utayee, Tahsil and District Durg (C.G.) 7^ Mahendra Kumar Satnami, aged about 19 years, son of Maksudan Ram Satnami, resident of village Chandi, P.S. Berla, Tahsil - Berla, District Durg (C.G.) Present address : Qtr No. 27-C Road No. 29, Sector 5, Bhilai (C.G.) P.S. Kotwali, Bhilai, Distt. Durg (C.G.) 8 "' ^ The New India Insurance Company Limited, through - the Branch Manager, Parakh Bhawan, Station Road, Durg (C.G.) and Divisional Mahager, Division Office, Thakkar Chamber, Power House Bhilai, Tahsil and District Durg (C.G.) YL @^-^_^--=-— HIGH COURT OF CHHATTISGARH. BILASPUR DB: HON*BLB I. M. QUDDUSI & HON'BLE G. MINHAJUDDIN, JJ M.A(Q No. 381/2007 APPBLLANT: RBSPONDENTS: Narendra Kuiaar Bhatadya Vs. Sint Unmla Sahu aad others M.A(Q No. 603/3009 APPBLLANT: RBSPONDBNTS: The New India Assurao.ee Co. Ltd. Vs. Narendra Kuraar Bhatariya & ofbers MISC. APPEAL UNDBR SBCTION 173 OF THB MOTOR VBHICLBS ACT.1988 APPEARANCB: Mr, P,K, Dhuraiidhar, coiinsel for'Appellaat ia M.A.C.381/ 2007 and counsel for respondent No. 1 in MAC 603/2009. Mr. Saurabh Sharma, counsel for tlie Insuraace Coiapaay/ respondent No.8 in M.A(C). No. 381/2007 aad appellant in M.A.C. 603/2009. Mr. Basaat Kaiwartya, counsel for respondents 1 to 6 ia MAC. 381/2007 aad rcspondents 3 to 6 in M.A.C.603/2009. Mr, Gautam Khetrapal, coiinsel for respondentno.7 ia M.A.C, 603/2009. Per I.M. OUDDUSI. J. Heard. ORAL ORDER (02.12.2011) 2. These appeals ha^e beeu filed against the impugned award • '•.... dated 23rd November, 2006 passed by the IX Addl. Motor -^T- '^ "^a ^) Accident Claims Tribuiial (FTC), Durg, m Clami Case No. 128/2005. M.A.C. 381/2007 has been filed by the owner challengiag the liability fastened upon hiai whereas M.A.C. 603/2009 has been filed by the Insuraace Coinpaay challengiag fhe direction to the extent tliat fhe Insuraace Conipany shall first pay the compensation amount to fhe claimaiits and tiien recover the saoie froni the owner. Siace both. these appeals arose out of fhe Claim Case No. 128/2005 (Smt Urmila Sahu and others -vs- Mahendra Kumar Satnarm and others), tliey are beiag disposed ofby this coininon order, ' 3. Brief facts of the case as per the version of ftie clamiaiits are that on 03,12.2004, deceased Khilendra Kumar Sahu along- witli Naresh Kuniar Thakur, ChhabUal 85 Mohaalal had gone to their friend's viUage Jhahilormi ia vehicle Bolero D.L beariag Regn.No.C.G.07-3829. At about 2.15 p.m. (iti the night), when they were retummg, the said vehicle which was beiag driveu by non-appHcaiit No.l ia a rash aad negligent inaaner struck agamst a tree, as a result of which, KhUendra Kuniar died on the spot, At the tioie of accident, fhe deceased was aged about 50 years. He was workiag m Bhilai Steel Plaat, a public sector enterprise aiid was drawing a rn.ontih.ly salary of Rs.13,310/-. The claiiaants beiag dependents/legal representatives have \ filed claka petition under Section 166 of fhe Motor Vehicles Act 1988 for the award of a total comipensatiou of Rs. 14,40,190/ -ou vanous heads, lv'v. ,£^^4^, ^ii^-^^J- : s • :'" 1 %-.^^^^' 6 4. The leamed Claims Tnbunal haviag regard to ttie facts situation, partly allowed claim petition findiag inter alia that on 03,12.2004 due to rash aad negUgent drivmg of Vehiclebeamig Regn,No,07-3829 by its driver/respoudent no.2,, fhe accident took place ia which deceased Khilendra Kuniar Saliii died: fhere was breach of conditions of fhe iasuraace poHcy; fhe claioiants are entitled to coiiipensation of Rs.17,47,500/- wifh iaterest @ 6% per aanuia froia fhe non appMcants joiatly aad severaUy, However, it was dirccted fhat siace fhe vehicle was iasured, fhe Insuraace Compaay is directed to pay first aiid then recover it froin owner and driver. 1 5. We have heard learaed counsel for fhe pardes aad have also gone through the records, 6. The question which has arisen before this Coiirt is as to whether fhe offending vehicle was being used for coniinercial purpose or for private purpose as ia case of use of private purpose, the iiisuraiice poUcy would be relevaat and ia th.e iastaat case, fhe iasuraace poUcy was a package policy aad in such a situation, the Circular No.IRDA/NL/CIR/F&U/073/ 11/2009, dated 16.11.2009 issued by the Insuiance Regulator Developinent Aufhority would be appUcable. In ttiat circixlar it has beeu nientioned fhat fliat insured's liability ia respect of occupant carried ia a Private Car is covered under ftie Staiidard Motqt Package Policy (also called as Coinprehensive PoUcy). Therefore, ia case of accideut causiag injury or deafh ,pf the occupaat of fhe private car, fhe iasurer of fhe vehicle would be Uable to pay coinpensation under niotor package poUcy, But ia case the vehicle was beiag used for comniercial ^^ 1'-?'^ ^ ^:^-... '€ "% i purpose and if the iasurancc poUcy was oiily meaat for private purpose fhe owner would be Uable to pay compensation and not th.e hisuraace Coinpaay as fhere was breach of conditions of fh.e nisuraace poMcy. 7. Leanied counsel for the iasuran.ee coinpaay has subinitted fhat as ia fhe claim petition, reference has been niade to FIR and in the FIR it was inentioned that tiie vehicle was beiag used for coraniercial purpose, fhe iasuraace coinpaay caanot be held liable to pay conipensation. However, learaed counsel for fhe owner of the ofFendm-g vehicle has siibniitted fh.at fhe owner has not adnxitted the contents of the FIR aad it was his case fhat fhe vehicle was not beuxg used for comiBiercial purpose. 8. In fhe written statement filed by fhe msuraace compaay, it has not been aULeged fhat fhe vehicle was beiag pUed for coraiaercial purpose, but ouly aii objectiou has been raised fhat it is uot clear froin fhe contents of fhe claim petition tih.at whefher fhe vehicle was being used for coniniercial purpose or private purpose. However, a Senior Assistaat of fhe Insuraace Conipaiiy naaiely Lyod Johnson came into witness box as N.A.W, 1, who has stated fhat the documents which were made available to hmi would show that fhe vehicle was being iised for comimLercial purpose as it was taken on hire and as such it was beiag used-as taxi aad it amounts to violation offhe terms and conditions offjlxe iasuraace policy. However in. the last sentence of his cross exammation, he has stated fhat m para 9 it has "been spectficaUy atated fhat the vehicle was used for private purpose aad not for coiniaercial purpose. He has also not stated m his evidence as to which were fhose documents by :;:*^.. .^' •'>' '^ '^ f ^. ^ % ^ ^ which it could be shown fhat fhe vehicle was being used for commercial purpose, 9. The stateraent of one of fhe occupants was also recorded by the Tribunal, namely Naresh Thakur (A.W,2) who has stated that he was sittiag in fhe vehicle due to friendship wifti fhe owner, which shows fhat the vehicle was not beiag used for coniraercial purpose. However fhe scnber of fhe FIR who was also one of fhe occupaats naniely Bahnukund had not coiae ia fhe witaess box. The FIR fhough is not a piece ofevidence but is always subject to outcoine of fhe iavestigation, In the iastant raatter, the iavest^ation was concluded by the Investigating OfHcer aiid fhe charge sheet u/s 173 Cr.P,C. has been filed, But in the said investigation report, it has not been inentioned tiiat the vehicle was beiag used for coinraercial purpose aad no oflTence has been niade in the charge sheet ia fhat record. In the above circunistaaces, the Tribtinal as an explorer of trufh should have conducted an enquiry to ascertam whefher fhe vehicle was beiag used for coidBiercial purpose or for private purpose. 10. It has been provided ia Rule 226 ofC,G. Motor Vehicles Rules, 1994 fhat fhe Clahns Tribunal shall obtain. whatever iafonnation aad docuinents which inay be found necessary froni fhie poUce, niedical aad ofher aufhorities aad proceed to award fhe claim whefher fhe parties who were given notice, appear or not, 6n fhe appoiated date. Further we caanot ignore ' \ ^ fhe provisions of^ecfionlGS aad 169 offhe Motor Vehicles Act, 1988 which provides fhat on receipt of an appUcation for coinpensation inade u/s 166, ftie Claims Tribunal shaUl after Y\ r..^. ^ "'^ "^ %^,, . /J giving fhe parties (iacludiag fhe iasurer) aa opportunity of beiag heard, hold an. iaquuy io.to the clami aad subject to fhe provisions of section 162 niay inake an award detennuimg the ainount of coinpensation which appears to it to be just, 11. In view of fhe above discussion, we feel fhat fhe Tribunal has not conducted aay enqiiiry properly aad has also not considered fhe pleadings of fhe parties taken in fhe written stateraent The scriber of fhe FIR should also have been suniBioned ia fhe witaess box to prove fhe FIR aad its contents but the sanie has also not been done, Therefore, we are of fhe opiaion fhat fhe inatter requires reconsideration at fhe end of fhe Tnbunal to detenauie the facts on fhe above aspects of the case, 12o Hence, we allow bofh. the appeals ia part, set aside fhe impugned award dated 23-11-2006 aad remit fhe inatters back fhe Tribunal for decision afresh ia the Ught of fhe observations niade above, We have been iaformed that fhe amount of conipensation has already been paid to fhe claunants by fhe Insuran.ee Coinpaay. Therefore, fhe payment niade by the iasurars.ee Conipaay shall be subject to the decision ia tlie matter afresh, The owner has also deposited Rs,5 lakhs ia fhe Clalms Tribunal. The same shall remaia in fixed deposit tUl fhe decision of fhe Tribunal afresh or for a period of one year which ever is I^-tter, 13. Needless to ment^on fhat the clairn petition shaU be decided as early as possible, preferably wifhia a period of4 monfhs, from fhe date of appearaace of fhe parties, The pardes shall appear I. i. !•?/ " %;.^.' <^^<^.¥^.. % / n beforc the Tribunal on 24th of Januarv. 2011. The records of the Tribunal shall be sent back wifhout further delay, It is also directed fhat fhe parties shall be allowed to amend fhe pleadiags, adduce furfher evidence, file documents or get the docuineuts verified etc,, aad fhereafter fhe Tribunal shall take fhe decision afresh. 14. In fhe result, fhe appeals are atlowed ia part. No order as to costs^.__^____ ~ Sd/- I.M.Quddusi Judge Sd/- G. IVIinhajuddm Judge Rao