^v ^|0lle? HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb Deshmukh. J. ^ ^nii ||B« M.A.(C)No.486of2006 Ramesh Paridey versus Sohanlal Rathore and another M.A.fC) No.487 of 2006 ^ J Ramesh Pandey versus Kamlesh Thakur and another QRDER Post for pronouncement of order /f .01.2009 Sd/- Dilip Raosaheb Deshmukh Judge '^^TO^^' ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. Appellant Respondents Claimants M.A.(C.) No.486/2006 Ramesh Pandey, Aged about 38 years, S/o Ram Singh Pandey, Resident of Village Vishrampuri, Tehsil Keskal, District Bastar (C.G.) Versus 1. Sohanlal Rathore, Aged about 38 years, S/o Shatru Singh Rathore, R/o Korgaon, Post Korgaon, Tehsil Keskal, District Bastar (C.G.) 2. The National Insurance Co. Ltd., Branch near College, Main Road, Bastar, Through: Divisional Manager, Mobin Mahal, G. E. Road, Raipur M.A.(C.) No.487/2006 Appellant Respondents Claimants Ramesh Pandey, Aged about 38 years, S/o Ram Singh Pandey, Resident of Village Vishrampuri, Tehsil Keskal, District Bastar (C.G.) Versus 1. Kamlesh Thakur, Aged about 25 years, Agent, Sahara India, Resident of Village Vishrampuri, Tehsil Keskal, District Bastar (C.G.) 2. The National Insurance Co. Ltd., Branch near College, Main Road, Bastar, Through: Divisional Manager, Mobin Mahal, G. E. Road, Raipur (C.G.) Appeal underSection 173 ofthe MotorVehicles Act. Present : - Shri Manoj Paranjpe, counsel for the appellant. Shri P. P. Sahu, counsel for respondent No.1. Shri Dashrath Gupta, counsel for respondent No.2. ORDER (Passed on this J3_ day of January, 2009) ^ >N^^ M.A. (C) No.486 of 2006 and M.A. (C) No.487 of 2006 preferred by the appellanVowner arising out of the award dated 04-08-2006 passed by 3 Additional Motor Accidents Claims Tribunal, Jagdalpur (henceforth "the Tribunal") in Claim Case No.71/2005 and Claim Case No.70/2005 respectively are being decided by this common order. (2) Brief admitted facts are that the appellant is the owner of Jeep bearing Registration No.M.P.-23-L/3656 (henceforth "thejeep"). Thejeep was insured by respondent No.2 for private use under an act only policy in which premium for five persons travelling in the jeep was paid. In the said jeep driven by the appellant/owner on 02-11-2001, Sohanlal Rathore, (claimant in Claim Case No.71/2005) and Kamlesh Thakur (claimant in Claim Case No.70/2005) were travelling and had sustained injuries due to the jeep turning turtle near Keshkal Ghat. (3) In Claim Case No.71/2005, claimant-Sohanlal Rathore had claimed compensation of Rs.4,70,000/- for the permanent disability of 60% sustained by him due to central facture and dislocation in the left hip due to the accident. In Claim Case No.70/2005, claimant-Kamlesh Thakur had claimed compensation of Rs.3,00,000/- for the 25% permanentdisablement sustained by him due to mal union of superior and inferior ramus of pubis with displacement. (4) Before the Tribunal, the claimants-Sohanlal Rathore and Kamlesh Thakur testified and also adduced the evidence of Dr. V.K. Pandey, A.W.3. The appellant/owner also testified before the Tribunal. The respondent No.2/insurer examined its Branch Manager- A. Kujur, N.A.W.2. The Tribunal exonerated the respondent No.2/insurer from the liability to pay compensation on the ground that at the time of the /^-w-€"^- 11 '^ ts;...^... ^ ":^'^& / ^ ^ accident, 13 persons besides the driver were travelling in the jeep in contravention of the condition of the insurance policy whereunder premium was paid for 5 passengers besides the driver and awarded compensation of Rs.1,48,000/- to the respondent No.l/claimant-Sohanlal Rathore in Claim Case No.71/2005 and Rs.62,000/- to the respondent No.l/claimant-Kamlesh Thakur in Claim Case No.70/2005 against the appellant/owner. (5) Being aggrieved, the appellant/owner has preferred M.A. (C) No.486 of 2006 and M.A. (C) No.487 of 2006. In M.A. (C) No.487 of 2006, the respondent No.l/claimant-Kamlesh Thakur filed cross appeal praying for enhancement of compensation from Rs.62,000/- to Rs.3,00,000/-. (6) Shri Manoj Paranjpe, learned counsel for the appellant/owner in both the appeals placed heavy reliance on National Insurance Co.Ltd., Versus Anjana Shyam and Others, (2007)7 Supreme Court Cases 445 whjle arguing that the Tribunal was not justified in exonerating the respondent No.2/insurer from the liability to pay compensation. It was urged that although the Tribunal held that at the time of the accident 13 persons were seated in the jeep yet under the policy of insurance risk of five persons travelling in the jeep was covered. The insurer could not therefore escape liability to pay compensation to the extent of the risk covered under the policy. It was further argued that the respondent No.1 in M.A.(C.)No.487/2006 did not adduce medical evidence. The disability certificate was admittedly obtained by Kamlesh Thakur after a lapse of four years after the accident. The treating doctor was not examined. On these premises, it was urged that no ground was made out in M. A. (C) ^ No.487 of 2006 for enhancement of compensation awarded by the Tribunal. (7) While arguing in support of the impugned award passed in M.A.(C.)No.486/2006 and M.A.(C.)No.487/2006, Shri Dashrath Gupta, learned counsel for respondent No.2 prayed in the alternative that if at all liability to pay compensation is to be fastened on the, insurance company, it should not exceed the limit of liability accepted by the insurer under the contract of insurance. (8) Shri P. P. Sahu, learned counsel for respondent No.1 in both the appeals argued in M. A. (C) No.487 of 2006 that the compensation awarded by the Tribunal deserves to be enhanced as it is not commensurate with the disability suffered by the respondent No.l/claimant and cannot be termed as just and reasonable compensation. (9) Having considered the arguments advanced, 1 have perused the record of both the appeals. Defence of a fundamental breach of policy regarding use of the jeep permissible under the policy was not taken by the insurer in the written statement. The insurer did accept premium to cover the risk of five persons travelling in the jeep. This is substantiated not only by the policy Ex.D-2(C) but also by the admission of Shri A. Kujur, N.A.W.2 that premium for five persons travelling in the jeep and liability to pay compensation up to Rs.1 Lakh per person was accepted by the insurer under the policy. This liability was a contractual liability and therefore, the Tribunal ought to have fastened liability on the insurer to pay compensation to that extent. The Tribunal erred in not taking into consideration the contractual liability accepted by the insurer and ^r exonerating the insurer merely on the ground that the jeep was carrying passengers more than the permissible limit. (10) As regards the injuries sustained by respondent No.l/Kamlesh Thakur in Claim Case No.70/2005 is concerned, it is an admitted fact that the treating doctor was not examined by the claimant before the Tribunal. The disability certificate was obtained by the claim'ant after a lapse of four years after the accident. Dr. V. K. Pandey, A.W.3 has admitted in para 9 that he did not treat respondent No.l/claimant-Sohan lal and had given disability certificate four years after the accident. He had further stated that the permanent disability mentioned in the certificate issued by him pertains only to the hip joint and not to the entire body. He also admitted that Sohan lal came to him on 21-03-2005 and the disability certificate was issued by him on the same day even without taking any X-Ray. A perusal of the disability certificate also shows that it has not been issued by the Medical Board constituted for the purpose. The manner in which the certificate was issued in a hurry by Dr. V. K. Pandey, A.W.3 on the same day without even taking X-Ray of the left hip and without considering that Sohan lal had come to him for the first time after the expiry of more than four years of the accident creates doubt about the reliability of the certificate. I am therefore of the opinion that no ground for enhancement of compensation awarded by the Tribunal in Claim Case No.70/2005 is made out. Cross appeal preferred by the respondent No.l/claimant in M.A.(C.)No.487/2006 is therefore dismissed. (11) In the result, both appeals i.e., M.A. (C) No.486 of 2006 and M.A. (C) No.487 of 2006 are allowed. The impugned award whereby liability to ^ pay compensation was fastened on the appellant/owner in its entirety is set aside. In Claim Case No.71/2005, liability is fastened on the respondent No.2/insurer to pay compensation of Rs.1 Lakh to the respondent No.l/claimant. The appellant/owner shall be liable to pay the remaining compensation awarded by the Tribunal. In Claim Case No.70/2005, liability to pay compensation is fastened wholly on the respondent No.2/insurer since the compensation awarded by the Tribunal is within the limits of contractual liability accepted by the insyrer._ Sd/- Dilip Raosaheb Deshmukh Judge n-01-2009 Tumane ^4. r o^