IN THE H!GH GQURT QF CHHATF[SGARH AT BILASPUR M.A.NO. ^fe^/2004 n:..:- •tf Aouellants /(Claimants) SintShakuntala Devi Parakh Widow of Late Gvaachand Parakh. Aged about 45 years, •II Manoj Parakh S/o Late Gvanchaad Parakh. Aaed about 29 vears, Bofh R/o Circuit Road House. JaRdalpur-fC.G.) Versus Respondents (gon-AppUcants) !l^ i;. iiiL—.^itA-- 1. Subhash Sabath S/o Shri Bhagwan Sabath, Aged about 22 years, R/o Jeypore Orissa. 2.y The United India Insurance Coinpanv. Branch Office Jagdalpur, Dist: Bastar-fC.G.) MISC. APPEAL U/S 173 OF THE MOTOR VEHICLES ACT, V^.-^^'-c^— -m,. 1 ^:" .('' <7^- HIGH COURT OF CHHATTISCiARH, BILASPUR e> DB: HON'BLE I. M. QUDDUSI & HOK'BLE G. MINHAJUDDIK, JJ »E.A. No. 486 OF 2004 RESPONDBNT8: Snit. Shakuntala Devi Parakh and aaother Vs. Subhash Sabafh aad aaother iWISCELLAKEOUSAPPEALUNDERSBCTION 173 OF THE MOTOR VBHICLES ACT. 1988 Present: Shri Keshav Dewangaa, couusel for the appeUaut. Mr. H. B. Agrawal, Sr. Advocatewith Mrs. Meera Jaiswal, counsel for respondent No.2. ORAL ORDBR (16.11.2011) Per I.M. OUDDUSI. J, 1. This appeal has been filed by the claimauts against the impugned award dated 31.12.2003 passed by rv Addl. Motor Acadent Clauas Tribunal (FTC), Jagdalpur in Claim Case No.75/2002, disiaissing the claim petition filed by fhe claiinaats who were legal heirs/representatives ofthe deceased. The deceased was owner and one of the occupants of fhe vehicle itt' question. 2. Brief facts of fhe case a5»perthe version of fhe claunants are fhat on 06.04.2001, deceased Gyauchand Prakash alongwith his daughter and ofher relatives was coiaiag fi-oin Raipur to Jagdalpur ia a Car bearfag Rega.No.M.P.25-C/0036. t • Respofldent no.2 was the iasurer ofthe vehicle. On the way at about 4.00 a.iu., the said vehicle, which was being driven by ffo ISI; lespondent no.l Subhash Sabafh iu a rash aud negligent maaner, strack agamst a tree near P.T.S. godowu Boregaon due to which atl passengers sustained imuries. They were brought to R.N.T. Hospital, Kondagaon where Gyaachaad Parakh expired. A fhree aionths' child Khyati Surana also died in the said accident and ofhers sustained grievous nujuries. At flie tune of accident, ftie deceased was aged about 50 years, he was running a wholesale busuiess of Agricultural equipniente for the entire district aud was eaming Rs.1,20,000/- per aiuium. The clamiants beiag dependents/legal representatives have filed Claiin Petition u/ s 166 of the Motor Vehicles Act for fhe award of a total coiupeusation of Rs. 37,00,000/- on various heads. 3. The learaed Claims Tribuiial haviag regard to fhe facts situation and niaterial aad evidence on iccord has held fhat the Car beariiig Regn. No. C.Ci. 16/0611 driven by non- applicant no. 1 ia a rash and neg^ent manner, struck agaiast the tree, as a result of which, Gyaa Prakash died; the vehicle was iusured with respondeut no.2; the driver was haviag valid and efFective driving Ucence. However, leamed Clauns Tribunal 'after considering the objections inade by fhe Insurance Coinpaay .m respect of non-payiuent of premium for fhe cwner / of the vehicle rejected the claiia of the appeUants who were legal representatives ofthe deceased/ owner ofthe said vehicle. 4. We have heard leamed counsel for the parties aad have also gone fhrough the records ofthe Tribunal. 5. . In fact, 5 claim. petitioiis wcre filed as excludiug driver, 5 persons were travelmg in. fhe vehicle. Out of which. two were M m 6. deceased persons iacludmg Gyaachand aad fhree were iajured. The ClaLms Tribunal bas granted compensatioii to Uie fhree iajured aad fhe ofher dead person oa the ground that there was Umit of iasuraac?; for 4 persons iu fhe iasurance poUcy and fb.srefore, deiued to graat coinpensation to the claunaats of fhe uistant appeal who were the dependents of the deceased Gyauchaud on fhe grouiid also that the owner was not included ia the nuinber ofpersons i.e., four. We have perused fhe iasurance poUcy aad foitad that nothing was nientioned fherein that fhe owner would be excluded. Rafher against fhe nnTnp of fhe itisured person, the naine of the owner Gyan Chand Jain. has been inentioned, therefore, the legal heirs of fhe person wbo was insured has been denied the claini aad other persons have been given. Ifthere was 1iTnit of4 persons ia fhe insuraiice poUcy, the insured person was coinpulsorUy covered thereia. In case of Watfonal Jnsureince Compdny iimited -vs- Anftoui Shyeim. and others (2007) 7 SCC 445, HonTile fhe Apex Court has laid down fhe principle that the hj^her ainouiit of coinpensation should have been paid by the Iiisurance Company aad rcmauiing persons UabUity was of fhe owner aud in case of deatti of owner ttieir legal representatives. In the said case, Hon'ble the Apex Coiu-t has ia sum. and substance held vide Paias 20 & 21 that iaspite ofthe relevaat provisions of the statute, in.surance stiU reinains a contract between the owner aad the iasurer aad the parties are goveraed by the terms of their contract. The insured is covered only to fhe extent of the passengers pemutted to be iasured or directed to be iasured by the statute aud actually covered by the contract. a^a^ 4 The Insurance Coiiipany caa be niade liable only in respect of fhe number of passengers for whoin insiirance can be taken under fhe Act and for whom uisurance has been taken as a fact aiid not ia respect of the other passengers iuvolved ia the accident ia a case of overloading. Further iu para 22 it has been held as foUows: "22. Then arises the question, how to determine fhe compensation payable or how to quantify the coiapensation siuce fhere is no lueaas of ascertainiaj who out of the overloaded passengers constitute fhe passengers covered by the Insuraace PoUcy as perruitted to be canied by the perauit itself. As this Court has iadicated, the purpose of fhe Act is to brmg benefit to fhe thud parties who are either iajured or dead in au accident It serves a social purpose. Keeping fhat ia mind we thiak fhat the practical aad proper course would be to hold fhat the Insuraace Comipaay, in such a case, would be bound to cover fhe h^her of fhe vanous awards and wffl be compeUed to deposit the higher of the amounts of fhe com.pensation awarded to the extent of fhe nuxnber of passengers covered by the uisurauce policy.'' In view of the above discussion, the niatter requircs reconsideration at fhe end ofthe Tnbiuial. Therefore, we aUow this appeal ia part, set aside fhe impugned award dated 31.12.2003 passed m Claim Case No.75/2002 and remit fhe niatter back to the Tribunal for decidiag fhe claim petition a&esh at fhe earHest in. the light of fhe observations niade above. However, ia case the lowest amount of coinpeasation is to be paid by fhe owner and ifit is found that the Uabilily offhe owner who is no niore goes on ttie legal heirs/legal representatives, while inakirig payinent to fhe clainiants, the Dr> iy amouat whicb has been paid on lowest coiupensation shaU be adjusted towards payment to fhe claimaats. The records of fhe Tribunal shaU be sent back without furfher delay. No order as to costs. Sd/-~~~ I.M. Quddusi Judge Sd/- G. Minhajuddin Judge Rao