y^^Ssas' SINGLE BENCH IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. No.^// \200^ ^"E> IN THE MATTER OF y1. Goukaran Goswami, Aged 41 years, S/0 Rameshwar R/0 Sitamani, Korba (Driver) 2. Md Iqbal, aged 52 years, S/0 Ali Mohammed, T.P.Nagar, Korba, (C.G.) (Owner) Versus , 1. Debashish Rai, Aged 18 years, >/ S/o. Shri Jagdish Rai, R/o Sitamani, Korba (Chhattisgarh) Z. United India Insurance Co. Ltd. Through Branch IWanager, Branch Office M.G.Road, Korba, District: Korba (Chhattisgarh) /f^^ Appellants/ Non-Applicants Respondent / Applicant Respondent ^h' ^•s^ VM^ ^y .^.^•^ ^>- APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT 1988 ARISING OUT OF THE ORDER DATED 22.01.2005 PASSED BY B.L.TIDKE. ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KORBA IN CLAIM CASE N0 >-^I71/2004 <:* •- ^' HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. No. 611/2005 APPELLANTS Goukaran Goswami and another Versus RESPONDENTS Debashish Rai and another 1's.^^';:: SS[ ^^w.. ^ }W ^ SB:- HON'BLE SHRI N.K. AGARWAL, J PRESENT:- Shri Parag Kotecha, Advocate, for the appellants. Shri Ghanshyam Patel, Advocate for the respondent No. 2. ORAL ORDER (8-4-2011) 1. With consent of the parties, the matter is heard finally. 2. This is owner's appeal against the award dated 22-1-2.005 passed by the Additional Motor Accident Claims Tribunal, Korba in Claim Case No. 171/2004 whereby and whereunder leamed Tribunal has awarded a total sum of Rs. 38,535/- for the injuries sustained by the claimant holding appellant liable for payment of compensation exonerating respondent No. 2/Insurance Company from its liability to pay compensation on the ground that the vehicle was overloaded. Facts of the case in brief are that on 28-7-2003 the claimant was going in the bus bearing registration No. CG 12 ZA/0163 from village Kanki to Korba, owned by appellant No. 2, driven by the appellant No. 1 and insured with respondent No. 2 and due to rash and negligent driving of the driver of the bus, the said vehicle met with an accident near village Bhalpahari in Urga-Kanki- Bilaspur road, as a result of which, the claimant sustained injuries and he filed a claim petition under • 'Section 166 of-the Motor Vehicles Act, 1988 claiming Rs. :'^ I. 8 4ala s ,^y l 5@S^ ^ •w 5S^| 6. 7. 8, 4,00,000/- as compensation for the injuries sustained in the accident. Learned Tribunal on a close scrutiny of the evidence led, material placed and submissions made, held the accident occurred due to rash and negligent driving of the driver of the offending vehicle in which the applicant sustained injuries, awarded aforesaid amount as compensation in favour of the claimant holding appellants liable for its payment, exonerated respondent No. 2/Insurance Company from its liability on the ground that at the time of accident more than 50 persons were travelling in the bus in question. Shri Kotecha, leamed counsel for the appellants would submit, merely because the bus was carrying more than 50 passengers, the respondent/Insurance Company cannot be absolved from its liability to pay compensation and learned Tribunal has erred in exonerating respondent No. 2/ Insurance Company from its liability to pay compensation. On the other hand, Shri Patel, learned counsel appearing for the respondent No. 2/Insurance Company would submit, learned Tribunal has rightly exonerated the Insurance Company from its liability to pay compensation and the award deserves to be upheld. I have heard learned counsel for the parties and perused the record.- Learned Tribungd exonerated the insurance company on the ground that the appellant had breached the conditions of insurance policy in allowing rnore than 50 persons sitting in the bus. Indisputably, the respondent/Insurance Company neither proved the policy nor proved perm.it and its breach. Overioading itself is not a defence available to the insurance company under Section 149 ofthe Act. 9. Indisputably, the respondent/insurance coinpany did not obtain any permission under Section 170 of the Act to contest the case on all or any other grounds that are available to the person against whom the claim has been raade. 10. As per the judgment of the Supreme Court in the case of National Insurance Company Limited -v- Anjana Shyam and others reported in AIR 2007 SC 2870, in case of claim of more persons then perntitted by certificate of registration and perm.it, the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance cover has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading. 11. In the instant case, the persons injured are less than the persons permitted by the certificate of registration. 12. In view of above, in the considered opinion of this Court, leamed Tribunal has erred in exonerating the insurance company from. its liability to pay compensation. 13. For fhe reasons mentioned hereinabove, the appeal is allowed to the above extent. Now the respondent No. 2/ Insurance Company is also held liabile for payment of compensation jointly and severely along with the Appellant. The respondent No. 2/Insurance Company is directed to p,ay the amount of compensation within a period.ofc'two months. The appellant is entitled for refund of the amount of compensation, which according to him, has been deposited by him. 14. Rest of conditions of the award shal1 remain intact. Sd/- N.K. Agawal Judge