IN THE HIGH COURT OF 3UDICATURE AT BILASPUR, CHHATTISGARH. MISC. APPEAL f C ^^<P OF 2007 APPELLANTB^/ OWNER < RESPONDENTS .^^lajmants ^Jr: Raj Kumar Soni, aged about about 40 years, Son of Ram Swaroop Soni R/o Simga .Tahsil and District Raipur (CG) VERSUS : 1. ^AslRam, ^ aged about 36 years, Son of ^' Ram Charan Yadav, Resident of Mahamayapara Simga District Raipur (CG). ( DRIVER ) ^•^ .'.^^ 2.,The New India Insurance Company Ltd Djvisional/ Officer, First Floor Madisa Building Jail Road Raipur (CG) (INSURANCE COMPANY ) ^. Padum Ram Aged about 38 Years S/o Bas Das ^ 4. Latelin Bai W/o Padum Ram Aged about 36 years Both ^esidence of Village Chutchur-feia P.S. Simga District Raipur (CG) MISCELLANEOUS APPEAL UNDER SECTXON l73 OF MOTOR VEHICLES ACT^.198& Claim before the Claims Tribunal : Rs. 10,98,000/- Clarm awarded by the Tribunal : Rs. 2,00,000/- ,^s^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) No. 673 of 2007 APPBLLANT OWNER RESPONDENT CLAIMANTS Raj Kumar Soni. Versus Ghasi Ram and others. SB:- Hon. Shri N.K. Agarwal, J PRESENT:- Shri Vishnu Kashta, Advocate for the appellant. Ms. Sonia Kuldeep, Advocate for respondent No.l. Shri Hanuman Prasad Agrawal, Advocate for respondent No.2. None for respondents No. 3 & 4. Per N.K. Aearwal, J. Heard. ORAL ORDER (13-7-2011) 2. This is owner's appeal against the award dated 29.03.2007 passed by the 1st Additional Motor Accidents Claims Tribunal, Baloda Bazar.m Claim Case No. 31/2006 whereby and whereunder an amount of Rs.2,00,000/- has been awarded in favour of the claimants and against the appellant/owner exonerating the insurance company from its liability to pay compensation. 3. As against the claim of Rs.10,98,000/- claimed by respondents No.3 & 4, the unfortunate mother and father of the deceased - Bhelan, the learned Tribunal has awarded a \ total sum oftRs.2,00,000/- along with interest at the rate of ,3 7% per annum from the date of claira application till its actual payment. 4. The learned Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to rash and negligent driving of respondent No.l i.e. driver of offending vehicle Metador 407 bearing No. C.G. 04, G-5288; the deceased was sitting in the Metador as a gratuitous passenger, therefore, the respondent-insurance company is not liable for payment of compensation; assessed the monthly income of the deceased as Rs.18,000/- and after deducting one-third of it towards personal expenses of tehe deceased worked out claimants' dependency as Rs.12,000/-. 5 . By multiplying the above amount with the multiplier of 16 assessed compensation on account of claimants' dependency as Rs.1,92,000/-. By further awarding Rs.8000/- on other heads, the learned Tribunal has awarded total amount of compensation of Rs.2,00,000/-. 6 . Shri Vishnu Koshta,- learned counsel appearing for the appellant would submit: the learned Tribunal has erred in holding that accident had occurred by the use of vehicle in question ignoring appellant's pleading in the written statement iwherein appellant has denied the factum of accident; err.ed in dismissing the appellant's application for adjournmenton 19.02.2007 and consequently erred in .:-'.'^^-.^\ li y\,-^ I ^M'il^ 1 ^^i^^^, u \^^ "^i^" 3) proceeding exparte against him; erred in fastening liability of payment of compensation upon the appellant by exonerating the insurance company from its liability to pay compensation; despite the fact that there is no evidence on record showing permission of the appellant to the driver to take the deceased in the vehicle as passenger and lastly the Tribunal has erred in applying multiplier of 16 while calculating the compensation. 7. On the other hand, Shri Hanuman Prasad Agrawal, learned counsel for respondent No.2 would support the award and would submit; the deceased sitting in the goods carriage vehicle as gratuitous passenger; the insurance company is not statutorily liable to cover the risk of such passenger sitting in a goods carriage vehicle; moreover. The insurance company has also not undertaken such risk by entering into special contract with the appellant and by taking extra premium therefor, and therefore, the Tribunal has not erred in fastening liability of payment of compensation upon the appellant. 8. Ms. Sonia Kuldeep, learned counsel appearing for respondent No.l also supported the award. 9. I have lieard learned counsel for the parties and perused the aw^ird impugned including the record of the Tribunal. ^- S.2^^!^^^\. 3^- 10. Though the appellant has denied the factum of accident in the written statement but failed to adduce any evidence in support of above pleading. The learned Tribunal, considering the evidence available on record has held: the accident had occurred due to rash and negligent driving of respondent No.l, who was driving the offending vehicle Metador 407 bearing No. C.G. 04 G-5288. After going through the record, I do not find any infirmity in the above finding. On 19.02.2007 when the case was fixed for recording claimants' evidence, the appellant and respondent No.l remained absent and an application was filed by their counsel for adjournment, the same was turned down by the Tribunal on the ground that the matter has already been adjourned twice. In the above circumstances, the Tribunal proceeded exparte against the appellant and fixed the case for recording of evidence of respondent No.3 - insurance company on 21.3.2007. The appellant, in his own wisdom, did not cross- examine the claimants' witness present on that date nor filed any application under 9 Rule 9 ofthe C.P.C. on 21.3.2007 for setting aside the ex parte order. Further, after passing of the award, the appellant also did not file any application for setting aside the exparte award showing sufficient ground for their non-app^arance on the date of hearing. Therefore, I do not find any substance in the above plea raised by the \ appellant. F?- ^,..,.^^^^ y^^^. ^ 10. Now coming to the third question raised by the appellant, it is settled law that risk of gratuitous passenger sitting in the goods carriage vehicle is not required to be statutorily covered under the policy of insurance The Supreme Court in the case of New India Assurance Co. Ltd. v. Vedwati & others, (2007) 9 SCC 486 in par^graph 6 held as under: "6. .......... The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in the definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision siniilar to Clause (11) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle'. The proviso niakes' its.further clear that compulsory coverage in respect 6f drivers and conductors of public service vehicle and employees carried in goods vehicle would be UmitedV to liability under the Workmen's r~ ^^^.•^ ,..'-^-, ! ;5^%fe'fe\ 1 3Y CompensationAct, 1923 (in short 'the WC Act'). There is no reference to any passenger in 'goods carriage'. 10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor." It is also not the case of the appellant that the insurance company has undertaken such liability by entering into special contract with the appellant and by taking extra premium therefor. In this view of the matter and in view of law laid down by the Supreme Court in the aboye referred case, the fact whether or not the appellant has permitted his driver to allow the deceased to sit as a passenger is of no relevance. 11. Now coming to the quantum of compensation, as per Section 168 of the Motor Vehicles Act, 1988 (henceforth 'the Act?), the corapensation awarded to the claimants sUould be just and reasonable. 12. The accident had occurred in the year 2005. The notional income is prescribed in 2nd Schedule to Section 163- A of the Act in the year 1994 is Rs.15,000/- per annum. Considering t(ie increase in price index between the year 1994 to the year 2005 and the age of the deceased as 20 '\ years at the time 6f accident, it can be safely held that 'K:^ ^ 3^ deceased could have earned Rs.3000/- per month and Rs.36,000/- per annum at the time of accident. After taking the income of the deceased at Rs.36,000/- per annum and deducting 50% of it towards personal and living expenses of the deceased and by applying multiplier of 10 in the light of dictum of Supreme Court in the case of Municipal Corooration of Greater Bombav -v- Laxman Iver and another (2003) 8 SCC 731 wherein it has been held that in case the claimants being parents of the deceased the multiplier should never exceed 10, the amount of compensation on account of loss of dependency works out to Rs.1,80,000/-. By adding further sum of Rs.15,000/- under other pennissible heads, the total amount would come to Rs.1,95,000/-. The learned Tribunal has awarded only Rs.2,00,000/-, which is almost same as awarded by the Tribunal. 13. In view of above, I do not deem it fit to interfere in the quantum of compensation awarded by the learned Tribunal. 14. For the reasons mentioned hereinabove, the appeal being devoid of merit, deserves to be and is hereby dismissed. No order as to costs. ——— Sd/- N.K. Agarwai Judge ;\ ^.\w