IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CG) fw APPELLANT « la M.A.NO. /'2>^^ /2004 </'Ma]ti Sonwani, aged about 45 years, wife ofAli, caste-Ghasiya, occupation - housewife, resident of Bariyon, district - Surguja (Chhattisgarh) VERSUS 'eaS^i s^E&s^ KESPONDENTS ^fe' My >"\ i.-' ^.^- -y .'••'.^' .** Jt 2/ y Rakesh Agrawal, aged about 22 years, son of Shri Suresh Agrawal, occupation - business, caste - Agrawal, resident of village Kakna, Chowki - Bariyon, P.S. Dhaurpur, Distt. Surguja (Chhattisgarh) United India Insurance Company Limited, through : Branch Manager, Near Ram Mandir, Ambikapur, Distt. Surguja (Chhattisgaph) MISCELLANEOUS APPEAL UNDER SECOND l73(2) OF THE MOTOR VEHICLES ACT, 1988 0- ? <<^' ^u^"^y^ S^.5^ llts'"~/ \b'"^< UiF^^> <b" ^ -*- ^ ;'jM»' ^M»txtes r\ / HIGH COURT OF CmTTlSG-ARH AT 3mm Q/ M.A. No. 409/2004 United India Insurance Company Versus mPONDENTS Loknath and others M.A. No. 4102004 / APPELLAN‘IS United India Insurance Company Versus RmPONDENTS Vishwannth and others M.A.. No. 1080/2004 Umtng India Insurance Company :.3 ’ Versus RESPONDENTQ Shmla Devi and others M.A. No. 1082/2004 United India Insurance Company Versus RESPONDENTs Malti Sonwanivand another M.A. No. 1366/2004 Malti Sonwani Versus . United India Insurance Company and others DB:-’ HON’BI.E 81m! LI. QUDDUSI & HON’BLE Sim! N.K. AGAkwnL, JJ .Shri Pankaj Agawa], Advocate for the United. “ Insurance Company. 4 Shri Manoj Mishra, Advocate for the owner” 'Shri- Sushil Dubey and Shri Rajesh Tiwari, dvocate for ttie claimants. A r96‘ ORAL ORDER (13—9-20 10) ' Per Ln. Quddusi, J 1. The above iive misc. appeals are being disposed of by this common order as they arise out of the same accident dated 15- 10—2002. 2. Misc. appeals bearing M.A. No. 409/2004 and 410/2004 have been tiled by the appellant/Insurance Company against the award dated 28-2-2004 passed by the 1st Additional Motor Accidmt Claims Tribunal, Ambikapur, Sarguja in Claim Case No. 22/2003 and 2 1/2003 respectively. 3. Misc. Appeals No; 1080/2004 and 1082/2004 have been med by the appellant/ Insurance Company against the award dated 25-9-2004 passed by the \Istl Additional Motor Accident Claims Tribunal, Ambikapur, Salguja in Claim Case No. 66/2003 and ’ 20/2003 respecuvely 4. These appeals except M A No 1366/2004 have been med by the appellant/Insurance Company against the awards in question whereby the M.A.C.T. concerned has held the Insurance Company and owner of the vehicle jointly and severally liable to pay compensation. M,A. No. 1366/2004 has been died by appellant/claimant Mam Sonwani for enhancement of the amount of award. 5. Facts of the case, in brief are that on 15-10-2000 deceased Thhp Kumar ahas Abhimanyu had gone to take part in a rally of Shiv Sena to Ambikapur on truck bearing regstration No. 15 Z B/0392, being dnven and owned by respondent No. 3 which was insured by the appellant and when he along with-his friends was returning, the said truck met with an accident near village Hasuli as a result of which, Dilip Kumar died. The claimants Malti and Shecla Devi med two separate applications under Section 166 of the Motor Vehicles s ' 3. / ‘ l Act, 1988 claiming compensation for the death of the 1 deceased. ' 6. The appellant/Insurance Company has med the w appeals inter alia on the g‘ound that it is not liable tn pay the amount of compensaiion for yatuitous passengers as the gratuitous passengers are not covered under the insurance policy. . M.A. No. 1366/2004 has-been med by appellant Malti Sonwani for enhancement of the amount of award inter ~ e ana on the ground that the deceased was aged 24 "' ‘ ' years and widow of the deceased Was aged, about I9- _ years and a married person and hence multiplier of ltl has wrongly been applied, it should have been of 17 and in this. way she has got lesser amount of compensation due to application ofwrong multiplier. E 8. Learned M.A.C.T. concerned on a obse scrutiny of the a submissions made, evidence led and material plawd, y passed the awards holding the Insurance company and owner of the vehicle jointly and severally liable to pay compensation. 9. We have heard learned counsel for the parties and 3' i perusedtherecord. 1. Before considering the nval subun’ssions made by the parties, it would be appropriate to advert to the provisions of Section 147 of the Act which reads as under: - ‘147. Requirement of policia and limits of liaMlity- m order to comply with the requirement of . this Chapter; a policy of insurance must be a policy which; (a) is issued by a person who is an wthon'sed insurer; and . . (b) insures the person or classes of peisons specijied in the policy to the extent specyied in sub-section (9)- ‘ xx: a, / 0 ‘ (i) against any liability which may be incurred by him in respect of the death of or bodily, injury to any person, including owner of the goods or his manor-teed representative oam‘edinthevehicleordamagetoany property ofa third party msedby or arising out ofthe use ofthe vehicle in'a publicphmp; ' V (ii) against the death of or bodily injury to any passenger of a public service vehicle caused byoran'dngoutoftheuseofthevehicieina publicplace: Provided that a policy shall not be required- (i) to cover liability in respect ofthe death, arisoigoutofandintheoourseofm's employment, of the employee of a personinsumdbytlwpolicy orin respect of bodily injury sustained by suchanemploye‘earisingoutofandin the course of his employment other than a liability arising under the Workrnen‘s Compensation Act, 1923 (8 of 1923), in respect of the death of; or” bodily injury to, any such employee- ~ (a) engaged in dnvtng the vehicle, or (b) y’ it is a public service vehicle, engaged as a conductor of the. vehicle or in examvn'ng tickets" on the vehicle, or . \T\§r (c) ifit is agoodscarriage, being cam'edinthevehide,or (ii) to cover any contractual liability. (2) Subject to the proviso to sub-section (1), apoliwofinsurancereferredtoin sub-section (1), shall cover any liability incurred in respect of my accident, up to thefollowing limits namely; (a) save as provided in clause (b), the amount ofliabaity inwrred; ' ‘ in 'respm of W to, my P’OPe'fyOfathirdparty, alir'ni, ofrupees six thousand Provided that any policy of insurance issued with any limited liability md in force, immediately b¢ore the .(b) commencement. of this Act, shall. , f t 5@ continue w be e ediuefor a period of ’ .faur mbnths ajier such commencement or all the date of expvy of such policy whtchever 1s earlier (3) A policy shall be ofno efed for the , purposes of this CWter unless and until there is issued by the inswermfauaurofthe person by whom the policy is efected a We of msurame #1 the prescnbed form and contammg the prescrwed particulars of my condmons subject to -¥ whtch the pollq; is issued and of any other presa-ibed matteis; and dwerent forms, 3 particulars and matters may be prwwed ' in dwerent cases. (4) Where a cover note Issued by the insurer under the provisions of this Chapter or the rules made thereunder ts notfollowed y a policy of insurance within the presa'ibed tone the insurer shall, within seven days ofthemnyoftheperwdofthe validity of the cover note nojity the fad of the registering wthonty m whose records . the vehicle to whwh the cover note relates has been registered or to such other whority as the State Government may prescribe. (5) Notwithstanding anything contained in any lmv for the time being in force, an insurer issuing apolicy ofinsurance under this section shall be linble to indemnw the' person or classes ofpersons speciiied in the . policy in respect of any liability which the poliaypurportstocover inthecaseq‘that person or those classes ofpersons. ’ -‘ 1 1. Section 147 of the Act inter alia prescribes - compulsory coverage against death of or bodily injury to any passenger of-“public service vehicle”. It~does not speak of any passenger ina goods carriage. The Supreme Court in case of New India Assurance Co. Ltd. -v- Ash: Rani reported in (2003) 2 SCC 223 observed in-para 26 of its judgment as under:- 12. ‘26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, s h “21. In our view, although the observations made in Asha Rani case (supra) were in connection with carrying passengers in a goods vehicle, the same : would @ply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphow the contention of the @pellant Insurance Company that it owed no liability towards the vgunes sufered by the deceased Rajmder Smgh who was a pillwn nder as the . insurance policy was a statutory polw, and hence it dui not cover the risk ofdeath afar bodily ‘ injury to a yamttous passenger 15. Therefore, in view of the dicta of Supreme Court ‘in above referred cases, tlie position of law is crystal clear that the insurance company cannot be held liable // we are of the opmian that the meanmg of the words any person must also be attributed hamng regard to the contact m which they have been used Le a thirdparty Keepmg m wew the promswns of the 1988 Act, we are of the opmwn that as the prowswns thereq do not enjom any statutory liability on the owner of a vehwle to get hts vehwle Insured for any passenger travellmg’ 1n a goods vehicle the insurers would not be liable therefor In- the case of Netional Inturance Co. Ltd. -v- Balilt Kaur (supra), the Supreme Court in para 19 observed as under- “19 In Asha Ram (supra) 1t has been not-wed that sub-clause (r) of clause (b) of sub-semen (1) of / Section 147 of the 1988 Act speaks of liabllity whwh may be Incurred by the owner of a vehwle m respect of death of or bodily mm to any personordamage toanypropertyofathtrdpwty caused by or artsmg out of the use of the vehicle in a public place. Furthennore, an owner of a passenger-carrying vehicle must yay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a thh‘dparty as also the owner of the goods or hzs authorised representative and not any passenger carried In a goods vehwle whether for lure or rewwd or otherwrse 13. ' $\S 14. Supreme Court in case of United India Insurance Co. Ltd. Shlmla -v- Tuck Sim and others reported in (2006) 4 SCC 404 observed in para 2 1 as under:- a v @ to pay compensation t0 the claimants for the persons travellmg 1n a goods vehlcle as gatuitous f non- gratuxtous passenger and the learned Tnbuna] went wrong 1n fastenmg -the liabllity upon the appellant, /Insuranoe Company and the same fmding deserves to ‘ be set aside. With regard to M.A. No. 1366/2004 tiled by Malti Sonwani for enhancement of compensation, we are of the opinion that the mulu'plier of 14 has wrongly been used and learned counsel for the appellant has rightly contended that in view of the fact that the deceased was a married pexson and the appellant was also dependent upon him, according to his age, the multiplier of 17 was to be made applicable instead of 16. - 14. Therefore, the amount of compensan'on needs to be‘recomputed. By taking income of‘the deceased as Rs. 30,000/— per annum as held by learned Tribunal, - and deducting 1/ 3rd of it towards personalexpenses of the deceased loss of yearly dependency would be worked out to Rs 20 000/ By multiplying 1t with the multiplier of l7, the total compensation towards loss of dependency would‘be Rs. 3,40,000/-. The claimants are further entitled to Rs. 17,000/- on other heads as awarded by leamed Tribunal. Thus the claimants are entitled for Rs. 3,57,000/- in place of Rs. 237,000]- as awarded by the Tribunal i.e. Rs. 60,000/- over and above the amount awarded by the Tribunal. 1’7. Therefore, M.A. No. 1366/2004 is aIIOWed in part. The amount of compensation is modified to extent that the clannants are entitled for Rs 3 57 000]- 1n place of Rs 2 97 000/- as awarded by the Tribunal against ' the driver/owner i.e. Rs. 60,000/- over and above the amount awarded by the Tribunal.- Out of diis amount, the appellant shall be entitled for Rs. 10,000/- and respondent No. 3 Sheela‘Devi shall be entitled‘to Rs. ” ‘@ 50,000/~. Rest of the conditions ment'oned in the award of the Tribunal Will remain as it is. The appeals M.A. No. 409/2004, 410/2004, 1080/2004 and 1082/2004 med by the Insurance Company are allowed and Ithe award passed against thc appellant/Insmanoe Company is set aside. However, the claimants are at liberty to recover the awarded amount h'om the owner/driver of the vehicle. It is further directed that if during the pendency of this appeal any amount hm been deposited by the -- Insurance Company and the same 1s disbursed to the claimants, then the Insurance Company shall be entitled to recover the same from the owner by filing execution proceedings before the Tribunal. e 19. No order as to costs. 18. Sd/— N. K. Agarwal Judge