, .iu ;,.,,.l ,,,,s ^c-' •-"- 'vv. AppeUaiit : (Non-Applicant No. 1) Respondents (Clarmanf) Appellaiit : (Non-AppUcant No, 1) Versus Ninnala Bai & two o'thers Paakaj Singh Versu; Respondents (Claiinaiit) indram & two others 'lil v iT QN Ol - OS'-20) Sd/- Dhirendra Mishra Judge HIGH COURT OF CHHATTISGARH AT BIL^PUR MISC. APPEAL N0. 442/2004 Appenan.t : (Non-Applicaat No. 1) Respondents (Claunant) Non-Applicaat No.2 Noii-Applicant No.3 ^v Pankaj Siugh, S/o, Dbal Singh Thakur, Aged about 45 years, NearWare House Padav Chowk, P.S. & Tahsil Mungeli, Dist; BUaspur (C.G.) Versus Nirmala Bai, W/o Shii Naresh Shrivas, Aged about 35 years, R/oVillage Hatrukala, Post Office Dharampura, P.S. & TahsU MungeU, Dist: Bilaspur (C.G.) Rakesh Kuiaar alias Baba, S/o Chotelal Siagh Tliakur, Aged about 28 years, R/o Near Water Tank MuugeU, P.S. 85 Talisfl MungeU, Dist : BUaspur(C.G.) The Branch Maaager, Uilited India Insurance Coinpany Ltd., Bran.ch Rajendra Nagar Chowk, Bilaspur, Dist. ; Bilaspur (C.<}.) ^ MISC. APPEAL N0. 420/2004 AppellaDLt ; (Non-AppUcant No.l) Respondents (Claimant) Paakaj Siagh, S/o. Dhal Singh Thakur, Aged about 45 years, Near Ware House Padav Ghowk, P. S. & TahsU MungeH, Dist: Baaspur(C.G.) Versus Bundraai, S/o Late Janka Gai^;, Aged aKout 53 years, R/o ViUage Sonpuri, Post Ofi&ce Fasterpur, P.S. Kunda, Tahsil Mimgeli, Dist; Bilaspur (C.G.) —— isisaaifi.niiajBSsjg iteliifesBiaasa^Bsn^Gfeii Non-AppUcaat No.2 Non-AppUcaiit No.3 2. Rakesh Kuinar alias Baba, S/Q Chotelal SmghThakur, Aged about 28 years, R/ o Near Water Taiik Miuige]!, P. S. 3s TahsU Mungdi, ; Dist. ; BilaspurfC.G.) 3. J'he Branch Maaager, Uxdted India Insurance Company Ltd., Branch Rajendra Nagar Chowk, Bilaspur, Dist. ; Bilaspur (C.G.) Present: Mr. PrafuU Bharat, counsel for fhe appeUauts/owu.er. Mr, Dashrafh Gupta, couiisel for the respondents No, 3/Insurance Company. J UDG M EJi T (DeUvered oaof/o52007) Dhirendra Mishra. J M.A.No. 442/2004 arising out ofclaim case No. 11/2002 aud M.A.No. 420/2004 arismgoutofclaim case No. 16/2002, ffled by Paakaj Singh, owner ofvehicle ia question, are beiag disposed ofby this coininon jndginent as bofh these appeals, arisiug out ofthe satae accident, are directed agauist the itapugned award dated 29.12.2003 passed by leamed 3rd Additional Motor Accident Claitas Tribunal (FTC) Mungeli, Bilaspur aad same question 6f law is iavolved for adjudication ofthese appeals. 2. Undisputed facts iii fhese appeals are fhat appeUaat/non- applicaut No. 1 is the registered owner of Tata Suino bearmg registration Nb. M.P.-26 E/A-2134, which was in.sured with non- applicaa{ No. 3/Insuraace Compahy vide certificate Of insurance of Ex.D/'l as pnyate car-wifh inaximum. capacity of rLiiie passengers includingthe dnver aad fhe clean.er. ThepoU.Gy wasin force on the date of accidenti.e. 4.2.2002 when ffae "'&ehicle niet wifh au accideat, as a result of whicli clahnants of botti these appeals sustamed various iajuries. M the ictevaM tiine noi]^ •Kuiiiar, was dliver ofthc vehicle. U"«N](nlBuani(Siiii—i—B^«^«»a; 'IS^ 3. The clauaaiLts filed fheir claim petitions before the Tribunal wlf& the avemients that the vehicle was beiag dnven rashly aiid negUgently by the driver, as a resultofwhich they sustauied grievous injuri.es. The driver was prosecuted for rash aad negligeut driviui vide criaiiaal case No. 140/02 ia tiie Court of Judicial Magistrate First Class, Mungeli. 4. In reply, fhe non-applicaats Np. 1 86 2 dertiedfhe avennents as also the allegation of rash and negligent drivm.g. They furtlier stated that the vehicle was insuredwifh fh.e noii-applicaat NQ. Sat the relevaat time, fherefore, eoriipensation, if any, is payable by the uisurer. ' , 5. The iion-appUcaat NQ. 3/Insurance Coinpajuy in its reply subinitted that fhe vehicle in. questiQn was beiag driven by the non- applicaats No. 1 & 2 uibieach of cou.ditions ofuisurance policy, the dnver did not have valid aud effective dnyirig llcence aad siace there is a breach ofpoUcy conditions, fhe uisurer is uot liable for satisfyia| the award of com.pensation. 6. On the basis of pleadio^gs of the respective parties, Tnbunal frained issues aad passed the ixiipugned award in. favour of the claimants aad held fhat the appeUaut/non-appUGant No. l and non- applicaiit No.2/dnver are joirifly aad severatly liable for payiaent of coiiipeiisation to flie clauaants. In claim case No. 11/2002 a sum of Rs.15,000/- was awarded iri favour of claiinant Niraiala Bai aad ia claim case No. 16/2002 also a suin. of Rs.15,000/- wasawarded ia favour of claiiuaat Buiid Ram, with iaterest at fhe rate of 9% per annuia ,/fixiia fhe date of appUcation. However, non-appUcant No.S/Jiisui-aiice Conipany was exonerated froin fhe UabiUty of satisiying the award wifh a fitidlng that the vehicle was insured for private purposes aad not for cagylag passengers whereas fhe elaim.an.tswere not traveEag free of charge and as such, tlie vehicle was beiag used for Mre to cany passerigers m: breach ofcopditions of ..insurauce policy. ' '• , • __ :l:i. • in^BWJBira»IU)UK.OUUItlUMIMPI fB*WtfllllUII 1^ WV "w 7. Leamed couiisel for the appellaat submitted fhat finding of the Tnbuiial is perverse an.d coutranr to fhe eviden.ee on record. Referriiig to tlie stateiaents of ttie clauaaiits, it has been argued tliat both tiie clamiaiits in their statemeats on oafh. have categorically stated fbiat they were known to bwner offhe vefaicle sm.ee before aad the vehicle was pToeeedtngs tbwards Pandariya, fherefore, they traveled ia fhe vehicle wittiout payiag auy fare charges. However, leamed Tribunal relied upon fhe testiinony of Siddique Usmaa, who has been exaini&ed on behalf of fhe Insurauce Coxnpauy aud stated fhat the vehicle was iusured as a private vehicle but fb.e saine was. being used for carryixLg passengei's as fhe passeiigers were not traveluig free of cost and fhey had investigated the accident and learut fhat fhe claunaats were traveliiig as passengers, tiiough no such report has been ffled before fhe Tribiinal. 8. On the other haad, Mr. Dashrafh. Gupta, leamed couasel for fhe non-applicant No.S/Insuraiice Coinpaay subniitted that it is not disputed that ftie vehicle was iusured as a private vehicle to carry only 9 passengers includiag fhe driver and ffa.e cleaner, however, the same was beiag used for hire aad reward iu breach of iasuraace pdlicy. The claiuiants and ofhers were traveUng iu.fhe same as passengers, therefore, fhe findiug of fhe Tribunal exonerating ffie insuraace coinpany Iroia liabUity of satisfying the award, is based on proper appreciation oftlie evidence on record and the same does not caU for aay iaterference. 9. I have heard leamed counsel for the respective pardes aud have pe^iised tiie im.pugned award as also th.e docuineiitaiy aad oral evidence available on record. •'•*' 10. As already poiated out, ttie vehicle was iasured as a private vetucle vide docuiaent of Ex.D/ 1.^ From. perusal of the iasurauce poUcy of Ex.D/1 it is clear that the insuiaiice coinpany has itudertaken: to indertuuJ^' fhe iasured as raentioned iu Section 2 '"Liability to Third Parties" which reads as under; <NS >'.«te m 'l. Subject to fhe Kmits of Habiliiy as laid down in the Schedule hereto ihe Company will mdemrdfy the insured in ihe efenl ofqcddent yaused by or arising oui. ofihe use ofMotor Car against alt sums including clcdmant's cx>st and expenses which the insuredshall become legally Hable to pay in respecl of: (a) deaih or bodily injuiy to any person inchtding ihe oocupants carried in the Motor Car provided such occupanis are not carriedfor hire requirenients of the Motor Vehicles Act, 1988 the Company shall not be liable wliere such deaih or injury arises out ofand in the course of the em.ploymeni of such person by the msured.' 11. Now the oiily question to be decided is - "whether fiudiag of the Tribuiial that the clamiauts were traveling in the said vehiele on the date of accident as passengers after payiag fare cbarges, is justified?". Froxa perusal of the Statements of both clainiants i.e. Nmnal Bai & Bund Ram, who have been exaiained durmg Inal, it is evident that they have categoricatly stated that fhey kaesv the owner of the vehicle siace before aad as the vehicle was goiag to Paudanya where daughter-iu-law of fhe owner resides, tfaey traveled in fhe vehicle wiftiout payiag auy charges. Leamed Tribunal in paragraph 14 offhe award has held that the claunauts were trayeliug iu the vehicle after paying fare charges as it is a common practice in this area that all the jeeps aifc beiug used as taxi for canyiag passeugers after getting fare charges froni fhein but fb.cy do not issue aay ticket to fhem. -smei in these circuBistances, the non-appUcant No. 2 while uader effiployment ofaon-appUcaat No.l did not issue any ticket to fhe passengers. The fiudiag reeorded by fhe Tribuiial is not bonie ,out froin the evidence available on record, fherefore, tbe award impugaed whereby fhe insurance compan.y/rLon-applLcaat No. 3 has been exonerated fi-oin satisfring the unpugned award on fhe ground ttigt on flie date of accident the vehicle iu question was beiag driven ~ia breach ofuisura.nce poUcy, caitnot be sustauied. i^y^ iiffil'S "w~ 12. In fheresult, theappeal staiids aUowed. The award iuipugned is niodi&ed to fhe extent fhat along with appeUant/iLon-appltcaa.t No.l aad non-applicant No.2/driver, non-applicaiit No.S/InsT.irauce Coinpauy shall also be Uable for payment of coinpensation to fh.e claunants Ninnala Bai & Buad Ram, joiatly aad severely. 13. A copy of this judgnieut be placed iu the record of M.A.No. 420/2004. Sd/- Dhirendra Mishra Judge / nin'si IISIiT'1 ^ft^ii?-^' as ~^ .^MtniBmM^;!^:^:^;.- :^w ?.;iaaSiaa..^-;"-