IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 N0. I}Q/2009 MISC. APPEAL UNDER SECTION 173 OF THE MOTOR ^\^HICLE ACT, 1988 APPELLANT ^ "i;^. ^••-'r' :- ^ The New India Assurance Company "^Limited, through - Divisional Manager \^-^\../~'-^ the New Inclia Assurance Company ^lG.Syvtl<' ' Ljmited, Bilaspur, 2nd Floor, Rama Trade Centre, Opposite- Rajeev Plaza, Bus Stand, Bilaspur (CG.). c-^j ^•^ i'!^/'i'' (^^•- VERSUS RESPONDENTS Owner Driver lx Narendra Kumar Bhatariya, S/o Shri M.L. Bhatariya, Aged about 40 Years, R/o Quarter No. 3-B, Street No.23, Sector-I, Bhilai, Tahsil & District Durg (C.G.) 1 •? Claimants 2^. Mahendra Kumar Satnami, S/o Maksudan Ram Satnami, Aged about 19 years, R/o Village Chandi, P.S. Berla, Tahsil Berla, District Durg (C.G.) Present address : Quarter No. 27-C, Road No. 29, Sector-5, Bhilai, P.S. Kotwali, Bhilai, District Durg (C.G.) ^—^--Smt.Urmila Sahu, Wd/o Late Khilendra Kumar Sahu, Aged about 48 years. 4. Teerath Ram Sahu, S/o Late Khilendra S^' Kumar Sahu, Aged about 30 years. 5. Ishwar Lal Sahu, S/o Late Khilendra Kumar Sahu, Aged about 27 years. 6. Hemant Kumar Sahu, S/o Late Khilendra Kumar Sahu, Aged about 23 years. ^-,.7. Smt. Inda Bai Sahu, Wd/o Late Bhuwan ^ Lal Sahu, Aged about 75 years. Respondent No. 3 to 7 Resident of Village Utayee, Post Utayee, P.S. Utayee, Tahsil and District Durg (Chhattisgarh) ^— CLAIM IN APPEALVALUED AT RS. 19. otf.788/- ^'u-^-^r- - ; (Amount awarded 17.y4:500/-interest @ 6°/o per annyml Court fee affixed Rs. 15/- HIGH COURT OF CHHATTISGARH. BIIASPUR DB: HON'BLE I. M. QUDDU8I & HOK'BLE G. MINHAJUDDIN, JJ M.AIQ No. 381/2007 APPELLANT: RESPONDBNT8: Narendra Kum.ar Bhatariya Vs. Sint Urmila Sahu and others M.Ata No. 603/2009 APPELLANT: RBSPONDBNTS: The New India Assurance Co. Ltd. Vs. Narendra Kuinar Bhatanya & others MISC. APPBAL UNDEaa SBCTIOtT 173 OF THE MOTOR VBHICLES ACT. 1988 APPEARAWCEt Mr. P.K. D.huraadhar, counsel for AppcBaat ia M.A.C.381/ 2007 and coimsel for respoadent No. 1 in MAC 603/2009. Mr. Saiuabh Shanna, couasel for ftie Jnsiirance Company/ respondentNo.8 iu M.A(C). No. 381/2007 aad appellant in M.A.C. 603/2009. Mr. Basant Kajwartya, counscl for respondents 1 to 6 in MAC. 381/2Q07 andrespondents 3 to 6 ia M.A.G.603/2009^ Mr. Gautam Khetrapal, counsel for respondeij.t no.7 in M.A.C. 603/2009. Per I.M. QUDDUSI. J. Heard. ORALOKDER (02.12.2011) 2. These appcals have been filed agaiast fhe impugaed award dated 23td Noveiiiber, 2006 passed by the DC Addl. Motor \/' !^ .^^/ '%^K!/' ^ Accident Claiias Tribunal (FTC), Dui^, ia Claun Case No. 128/2005. M.A.C. 381/2007 has been filed by the pwner chaUengmg the Uabilily fastened upon hhn whereas M.A.C. 603/2009 has becn filed by fhe Insurance Coiapaay chaUenging fhe direction to fhe extent fhat the Insurance Coinpany shaB first pay the coutpensation aoiount to fhe claiinants aad fhen recover fhe sauae finin fhe owner. . Stu.cc bofh these appeals arose out of the Claun Case No. 128/2005 (Smt. Urmila Sahu and others -vs- Mahendra KUnuxr Satruxnn cmd. others), they arebeiag disposed ofby fhis conunon order. 3. Brief facts of th.e c^se as per the veision of the claimants are fhat ou 03.12.2004, deceased Khilendra Kumar Sahu along- with Naresh Kumar Thakur, ChhabUal & Mohanlal Iiad gone to fheir fi-iend's vffl^e Jhalnlormi in. vehiclc Bofero D.I. bearing Regn.No.C.0.07-3829. At about 2.15 p.m. (in fhe n^ht), when fhey were retumiag, the said vehicle which was beiag driveu by uon-appUcaat No.l in a iash aad negl^ent inanner struck against a tree, as a result of which, Khilendra KiiDaar died on the spot. At the tim.e of accidcnt, the .deceased was scged about 50 years. He was workiag in BIulai Steel Plant, a public sector enterprtee aad was drawiag a monthly salary'of Rs.13,310/-. The claiaaants beiag dependente/legal representatives have ffled claim. petidon under Sectiou 166 of fh.e Motor Vehicles Act, 1988 for fhe award of a total coinpensation. of Rs. 14,40,190/-on vanous heads. ^ :^"' £{ ' '" ^. yfi vih-ss^ 1 /' 11 I .»» 4. The learued Clainis Tribimal having regard to the facts situation, parfly aUowed claim petition findmg inter afi'a fhat on. 03.12.2004 due to rash aad negl^ent driviag ofVehicle bearuig Regn.No.07-3829 by its dri.ver/respondent no.2, the accident took place in which deceased Khilendra Kuiaar Sahu died; there was breach of conditions of fhe insurance poUcy; ttie claiiaants are entifled to coinpensation of Rs.17,47,500/- with interest @ 6% per auauBa. fmai the non ppplicaats joinfly and severaUy. However, it was directed fhat siace fhe vehicle was iasured, the Insuran.ee Coiapaay is directed to pay first and fhen recover it frosa. owner and driver. 5. We have heanl kamcd counsel for the parties and havc also gone through fhe records. 6. The question which has ansen before this Court is as to whether fhe offending vehicle was toeiug used for comniercial purpose or for private purpose as in case of use of private purpose, the insuTaace policy would be rclevaat and m. fhe iastant case, fhe insitrance policy was a package policy aud ia such a situation, 1lie Circular No.IRDA/NL/CIR/F&U/073/ 11/2009, dated 16.11.2009 issued by fhe Insurance Regulator Dcvelopmeat Authority woiiM be appUcable. In fhat circular it has been inentioned fhat ftiat iasured's liabUity in respect of occupant carried in a Private Car is covered iindcr ftie Staudard Motor Package PoUcy (also caUed as Coiaprehensive Policy). Therefore, in case of accident causing injury or deafh 'of the occupaat of fhe private car, fhe iasiirer of the vehicle would bc Eable to pay coinpeusation uader inotor package poUcy. But ia ease flie.vehicle was beiag used for conunercial ':^ '^ •^ r,,^',,-;,^^ sKsy% Jr:;18»te... f ^. \. purpose aad if the insurance policy was only ineant for private purpose fhe owner would be liable to pay compeusatiou and not fhe iasurance Coiapany as there was breach of conditions offhe insurance poUcy. 7. Leanied counsel for fhe insTirance coinpaay has subinitted that as ia thc claim petition, reference has been niade to FIR aud ia the FIR it was mentioned fhat fh.e vchicle was beiag used for cominercial purpose, fhe iasuran.ee company cannot be hekl liablie to pay coiapensation. However, leamed counsel for fhe owner of fhe offending veluele has subigitted fhat the owner has not admitted fhe contents of the FIR aad it was tus case fhat the vehick was not being used fbr coitmiercial purpose. 8. In the written stateiuent filed by the m.surance coiapaay, it has not been aUeged ftiat the vehicle was being pUed for conunercial purpose, but only an objection has been raised fhat it is not clcar fi»mthe conteuts of the claim petitton that whether fhe vehicle was being used for comiaercial purpose or pnvate purpose. However, a Senior Assistant of fhe Insurauce, Coiupany namely Lyod Johnson cam.e iato witness box as N.A.W. 1, who has stated fhat fhe documents -which were made available to liiin would shcw fhat the vebicle was beiag used for coxnniercial purpose as it was taken on hire and as such it -was being used as taxi aud it aaiounts to violation of the terms aad conditions offhc ih.suraace policy. However in fhe last seatence of hls cross examination, he has stated that in para 9 it bas becn specificaUy stated fhat fhe vehicle was used for private purpose and not for cominercial purpose. He has also not stated in his evideuce as to which were those docuinents byv •^y'""^^.. M:2'\ lyi '&s&^ i wliich it couU be shown fhat fhe vchicle was beiag used for coaainercial purpose. 9. The statement of onje of fhe occupants was also recorded by the . Tribunal, namcly Naresh Thakur (A.W.2) who has stated fhat he was sitting ia fhe vehicle due to fliendship witii the owner, which shows that fhe vehicle was not beiag used for coxam.crcial purpose. However fhe scriber ofthe FIR who was also one pf fhe occupaats namely Balmiikund had not corae in fhe witness box. The FIR thoi^h 1s not a piece of evidence but is always subject to outeome ofthe iavest^atkin. In fhe iastant matter, fhe iavest^ation was concluded by fhe Invest^atmg Officer and flie chaige sheet u/s 173 Cr.P.C. has been filed. But in the said iavest^ation report, it has not been nientioned fhat the vehicle waa being used for commeicial purpose aad no ofFence has been niade ia the chacge sheet iu that record. In the above circuiuslaaces, fhe Tribunal as an explorer of trufh should have conducted aa enquiry to ascertain whefher fhe vehicle was beiag used for conimercial piupose or for private purpose. 10. It has been provided ia Rule 226 of C.G; Motor Vehicles Rules, 1994 that the Claixns Tribunal shaU obtaiu whatever information and doouiuents which may be found necessary frova. fhe poUce, niedieal aad other authorities aad proceed to award the claan whether fhe parties who were given notice, appear or not, on fhe appoiuted date. Furthcr we cannot ignore ,the provisions ofsectionl68 aad 169 ofthe MotorVehicles Act, 1988 which provides that on receipt of aa application for coinpensation made u/s 166, fhe Claiias Tribunal shaU after v :s/sgy^ •vy "hi V.:' giving fhe parties (iacluding the iasurei) au opportunily of beiag heard, hoU. an mquuy iato the claiin and subject to the provisions of section 162 niay inake aa award detennining the amount ofcoinpensation which appears to it to be just. 11. In view of fhe above discussion, we feel that fhe Tribunal has not conducted aay enquuy properly aad has also not considered the pleadings of the parties taken in the written stateiaent The scriber of the FIR should also have been suaunoned ia the witaess box to prove the FIR aad its contents but fhe saine Iias also not been done. Therefore, we are of the opinion fhat the inatter requires reconsideration at fhe end of the Tnbunal to deterxniae the facts on the above aspects of fhe case. 12. Heuce, we allow bofh. the appeals ia part, set aside fhe iaipugaed award dated 23-11-2006 and remit fhe inatters back fhe Tribunal for dccision a&esh in fhe Hght ofthe observations raade above. We have beeu infbrDied that the amount of coinpensation has already been paid to fhe claimaats by the InsuranGe Compaay. Therefore, fhe payoient inade by fhe m.suraace Conapany shatl be subject to the decision in. the inatter afesh. The owner has also deposited Rs.5 lakhs ia fhe CIauas Tribunal. The same shaU. remain ia fixed deposit tfll the deciston of fhe Tnbunal afesh or for a period of one year which ever is lattcr. 13. Needless to inention. fhat fhe claim pctition shaU be decided as early as possibte, prefeiably within a period of4 inonfhs, CKIOS tbe.date of appearaace of tlw parties. Thepartfes s&aUappear] -i? Kcy^ <. before fhe Tribunal on 24th of JaauarT, 2011. The records of the Tribunal shaU. be sent back without further dday. It is also directed fhat fhe parties shaU be aUowed to ainend the pleadings, adduce furfhjer evideuce, file documents or get fh.e documents verified etc., aad thereafter fhe Tnbunal shaU take the decision afcsh. 14. In fhe result, the appeals are allowed ia part. No order as to coste. Sd/- G.Minhaiuddin Judge SA'- l.M.Quddusi Judge Eao