Defendffl.it. No.3 }H CQUg3'^F£SBAin:lsGnsHAl-B!^^ /2005 -^ Tne IiidiaAssuTancB BMai, D 8. ttoough ta Branch MaiiageT.BilaspM {G-Q-)- 3 CoHiPa-l'iy 'L"^" -Veraua - Smt. Matri-Bai, 32 yeara, W/oStai R/ o - Khdlai-i, Talisil - Donsargah, Diati-ict- Rajnandgaon (C.G. .—^ ^. 2-: ^ SbriSiittiMYada^BOyears, RroroHEEHT : /^'^ mu^'""^_~~-i^ V»,1^ S/ o 8bri Paj-asram Yadav, Occwatioa- Driver, E./ o fiiaudxipflta. aaraaA, Distt. Rajiimdgaoa (C.G.) - UTIVST- ^^WT-.CTW 1 X'( Slu.iMaaMKimarAgawal, ; /*' s * -" T)sten-ct^-n^ m DnfBndant N". 'A-U.A AM.»--^——^ •-'. / ^ / Q/oSbriN.L.Agarwal, ^ ^••'^.&4 ^ R/ o Khaadupaia, ^SK-^ trwt-RaJB^W-c-a) ^^ <-1 HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. No.167/2005 APPELLANT The New India Assurance Company Limited Versus RESPONDENTS Srat. Mani Bai and others SB:- HON'BLE SHRI N.K. AGARWAL, J. PRESENT:- Shri Ajay Mishra, Advocate for the appellant. Shri H.B. Agrawal, Sr. Adv. with Smt. Meera Jaiswal, Advocate forthe respondent No. 1. ORAL ORDER (15-11-2010) Per N.K. Agarwal, J. 1. This is insurer's appeal against the award dated 1-11- 2004 passed by the Ist Additional Motor Accidents Claims Tribunal, Rajnandgaon in Claim Case No.118/2003. 2. Facts of the case, m brief, as per the claim petition, are that on 15-5-2003, the clairaant/respondent No. 1 was going from Dongargarh to village Khallari along with her goods kept in a gunny bag in a truck bearing Registration No. CG-08-ZB 0349, being driven by respondent No. 2 and owned by respondent No. 3. Due to rash and negligent driving of the driver of the truck, the said truck turned turtle, as a result of which, she sustained injuries on her leg and hand. She was treated in the Community Health Centre, Dongargarh and thereafter in the District Hospital, Rajnandgaon and she suffered permanent disability, The accident was reported to Police Station Dongargarh where offence under Sections 279, 337 and 338 of Indian Penal Code was registered against the respondent No. 2. She filed a claim petition under Section 166 of fhe Motor Vehicles Act, 1988 claiming Rs. 8,41,OOO/- as ^ ./ 7, compensation for the injuries sustained by her in the said accident. Learned Tribunal on a close scrutiny of the submissions made, evidence led and material placed, awarded Rs. 30,000/- to the clainiant holding the driver, owner and insurerjointly and severally liable for its pa5Tnent. Shri Ajay Mishra, leamed counsel appearing for the appellant would contend that the clairaant was travelUng in the Dala of the truck as a gratuitous passenger, therefore, the appellant/Insurance Company cannot be held liable to pay compensation. On the other hand, Shri Agrawal, learned Sr. Counsel submitted that amount of compensation awarded by the Tribunal is on lower side and the same deserves to be enhanced. He relied on the decision of the Supreme Court in the matter of Sunil Kuinar -v- Rani Singh Gaud and others reported in 2008(1)TAC 9 (SC). I have perused the evidence available on record. As per F.I.R. the claimant was sitting in the Dala of the truck as a passenger and the Dala of the truck was Glled by Bhunsa. It presupposes that the claimant was sitting in the truck as gratuitous passenger and not as owner of the goods. In National Insurance Co. Ltd. -v- Cholleti Bharatamma 8B others reported in (2008) 1 SCC.423 the Supreme Court held that so far as the goods carriage is concerned, passengers travelling in goods carriage whether gratuitous or otherwise were not covered under Section 147 of the Motor Vehicles Act, 1988. It further held that the owner of the goods must travel only in the cabin ,of the vehicle and not with the goods so as to be covered under Section 147 ofthe Motor Vehicles Act and it was necessary to prove that the deceased was traveUing in the Lorry (goods carriage) along with the driver or the ^ cleaner as the owner of the goods. Traveling with the goods itself would not entitle anyone to protection under Section 147. 8. In view of the above, I am of the considered opinion that the leamed Tribunal has seriously erred in fastening the liability upon the Insurance Company also to pay the compensation to the claimant as the clairaant was sitting in the Dala of the truck as gratuitous passenger and the Insurance Company cannot be held liable to pay compensation to the gratuitous passenger. 9. In view of the above, the above finding is set aside. The appeal is allowed. So far as liability of payment of compensation fastened upon the Insurance Company is concerned, is set aside. However, the claimants are free to execute the award against the other res^ondents. 10. So far as the cross-objection filed by the respondent No. l/ claimants is concemed, in the instant case, the doctor has not been examined to prove the injury or the documents. Therefore, in view of the decisions in the cases of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, I do not find any scope for enhancement of the compensation awarded by the Tribunal to the claimant and the case law relied upon by Shri Agrawal in the case of Sunil Kuniar -v- Ram Singh Gaud and others (supra) is of no help. Acc.ordingly, the cross-objection is dismissed. 11. No orders as to costs. Sd/- N.K. Agi Judge P/^hy