c L$ m THE.HCm®LKHXQMCOU^F OI? CHH^TNSaAJ H XC BELA^VR ^,,,g^,. SSRCT- M.A. ia. N0. \\{\b OF 2010 (^te^LYAI*UgDATR^.t9.45^72/-l APPE.AL UNOJER SECTJQNJ173 OP TJBE MOTORVEHICLESACT. 1988. ^\ ^•' ^ ^ APPEUU^NTS (NON-APPUCANTN0,3) ^..•'/',,A ,Q\^-"'C>^~' ' ^^•'";^"\ ^•""^^"l^ ^""^ •^\^'^ ^y^ k<oa RESPONDENTS: (APPUCANTNO. 1) (APPLICANT N0. 2) (APPUCANT N0. 3) (APPUCANTN0.4) United India Insufaxice Company Limited, though- Branch Manager, Braiich-Office^ Brahm road, Ambikapur, Distt.-Surguja (CG) Veraus ^ t. v 2. ^3. 1-4- (NON-APPLICANT N0.1) 5. Smt. Dev Kuawar, W/o- Late PIiool Sai, aged- 45yearSy Vimal, S/o- Late Phool Sai, Aged-25 years, Shiv Narajan, S/O-Late Phool Sai. Aged- 19 Years. Alok Kumar, S/0- Late Phool sai ,ageci-18year^ AU are R/o-vjllage-Jampara, P.S. BaOamthpur, Distt. Koria (CG) Suresh Kumar^ S/0-Ramlal Dhobi, Aged - 22 years, Caste-Dhobi, (occupation-driver), R/0-viUage Bardia, P.S.-Patna, JDistt-Koria (CG), (NON-APPLICANT N0.2)^-6. Rajesh Shivhare, alias Baba, S/0- V.P. Shivhare, aged-30 years,0ccupation, R/0-village- Baikmithpur, P.S. Baikunthpur, Distt.-Koria (CG) cr'. (MON-APPUCANT N0.4^ 1 Z. Gula^Abba&Khax^SJO-Abdul lRaj[]'ak Khan , aged-25 years, (Occupation- vebicle owaer ), R/0-ViUa^e-Salba, Tah.- Bajamxithpur, Distt.-K<»Aa(CG^. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ M.A.MNo. 1145/2010 Appellant United India Insurance Company Limited, Non-Applicant No.3 Surguja (CG) Vs Respondents Smt. Dev Kunwar and others ApplicantNo.1 Present: Mr. Dashrath Gupta, counsel for the appellant/insurance company. Mr. Anil Gulati, counsel for respondents No. 1 to 4. Mr. Dharmesh Shrivastava, counsel for respondents No. 6 & 7. ORDER (Oral) (17th October, 2011) Per I.M. Quddusi. J 01) This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 by the appellanVinsurance company against the award of the Motor Accident Claims Tribunal, Koria (in short "the Tribunal") dated 18.8.2010 passed in Claim Case No.40/08 whereby liability has been fastened upon the appellant/insurance company, jointly and severally, along with the driver and owner. 02) Brief facts of the case are that on 30.9.2007 Phoolsai, after completing his duties, was going to his home at Village- Jampara from West Charcha Colliery by Martial Jeep No. CG 04 ZD/6893. On the way, respondent No. 5 by driving the said jeep in a rash and negligent manner, collided with the stationary Bolero jeep bearing No. CG 15 B/2866 and further dashed against the wall. In this accident, Phoolsai sustained grievous injuries and was referred to Apollo Hospital, Bilaspur for treatment, where he died on 1.10.2007 during treatment. Report of the accident was lodged in Police Station - Charcha, whereupon crime was registered against respondent No.5 for the offence punishable under Sections '""^ ,|g^ j %' a ^o '"^SiSSSSf 279, 338 and 304A of the IPC and after completing investigation, charge sheet was filed against him in the Court of Chief Judicial Magistrate, Baikunthpur. Respondent No.6 used to take care of the Martial Jeep, whereas respondent No.7 is the registered owner of the jeep, which was insured with the appellant/insurance company at the relevant time. 03) At the time of accident, the deceased was employed in SECL, Charcha West Colliery and was getting salary of Rs.12,000/- per month. Therefore, the claimants, who are widow and children of the deceased, being his legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of 20,40,000/- undervarious heads. 04) However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs. 19,45,6727- in favour of the claimants, fastening the liability jointly and severally upon the appellanVinsurance company and owner and driver of the vehicle - Martial Jeep. 05) We have heard learned counsel for the parties, perused the LCR as also the impugned award. 06) Learned counsel for the appellanVinsurance company has contended that from the evidence on record, it is clear beyond doubt that the vehicle in question, which was registered and insured as private vehicle, was being plied as taxi for carrying passengers on hire and therefore, on account of breach of terms and conditions of the insurance policy, the appellant/insurance company is not liable to indemnify the owner of the vehicle in respect of compensation amount. In addition to this, he has further contended that income of the deceased has been assessed on the higher side and the fact that compassionate appointment has been given to Shivnarayan, who is son ofthe deceased, has not been taken into consideration by the claims Tribunal in computing the amount of compensation. \ ;r;-% | .-/^ ^ ^ ^! 07) On the other hand, learned counsel for the respondent/owner has contended that the appellanVinsurance company has rightly been held liable to pay compensation. He has further contended that compassionate appointment given to son of the deceased should have been taken into account by the claims Tribunal while computing the amount of compensation, but the same has not been done and the compensation has been assessed on the higher side. 08) From perusal of the evidence on record, especially the admission made by Dev Kunwar (AW-1), who is widow of the deceased Phoolsai, in her cross-examination that her husband/deceased used to travel in the jeep in question daily as a passenger on paying fare, it is clear that on the date of accident, the vehicle in question, which was registered and insured as a private vehicle, was being plied as a taxi for carrying passengers for hire in breachof terms and conditions of the insurance policy. Therefore, the appellant/insurance company could not have been held liable for payment of compensation and the finding on this point given by the Tribunal is liable to be set aside. 09) So far as quantum of compensation is concerned, it has been admitted by Dev Kunwar (AW-1), widow ofthe deceased, that one of her sons namely Shivnarayan has been given compassionate appointment on account of death of her husband. Thus, from perusal of the material available on record as also the impugned award, it is clear that the fact of compassionate appointment given to son of the deceased has not been taken into consideration by the claims Tribunal in computing the amount of compensation, which ought to have been considered in view of law laid down by the Hon'ble Supreme Court in Bhakra Beas Management Board Vs. Kanta Aggarwal (Smt.) and others, (2008) 11 SCC 366. 10) On the basis of aforesaid discussions, we are of the opinion that the claims Tribunal was not justified in holding the appellant/insurance company liable to satisfy the impugned "N' '..f/ ^ award and awarding compensation without considering the fact that son of the deceased has been given compassionate appointment. 11) In the result, the appeal is partly allowed. The impugned award, so far as it relates to fastening of liability upon the appellant/insurance company to pay compensation to the claimants, is hereby set aside. The appellanVinsurance company is exonerated from its liability. 12) However, in view of the fact that compassionate appointment has been given to son of the deceased, for the purpose of reassessment of the amount of compensation, the matter is remitted back to the claims Tribunal. 13) Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc. and thereafter, the award shall be madeafresh. 14) Parties shall appear before the Tribunal on 30 November, 2011. 15) LCR shall be sent back to the Tribunal without further delay. 16) No order as to costs. 17) Certified copy as per rules. Sd/- G. Minhajuddin sd/'.. . Judge LM.Quddusi Judge //