..!!'" l''i>nai»3i! HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 500 of 2004 APPELLANTS Parwati and others ap RESPONDENTS Versus Ijrail Mohammad and others AWARD Forconsideration 3i -10-2011 Hon'ble Shri JustLce Rajeev Gupta 3 (^-syr^jz^ • Sd/- Chief Justice Sd/- N. K. Agarwal Judge Post for.pronouncement ofAward: ( -11-2011 Sd/- N. K. Agarwal Judge .^ ..•^' -'^•. ..:.l^ 1 :^y 'y HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. No. 500 of 2004 APPELLANTS Claimants 1. Parwati, W/o Amrit, aged about 55 years, occupation Agriculture. 2.. Sonamani, W/o Hemsay, aged about 30 years, occupation House Wife. 3. Sunil, S/o late Hemsay, aged about 11 years, Minor through Guardian Mother Sonamani (Appellant No. 2.) 4. Purnima, D/o late Hemsay, aged about 11 years, minor through Guardian Mother Sonamani (Appellant No. 2.) 5. Mangli, D/o late Hemsay, aged about 6 years, minor through Guardian Mother Sonamani (Appellant No. 2.) 6. Anil, S/o late Hemsay, aged about 4 years, minor through Guardian Mother Sonamani (Appellant No. 2.) 7. Somar Say, S/o late Hemsay, aged about 1 month, minor through Guardian Mother Sonamani (Appellant No. 2.) All are R/o Village Umapur, PS Ramanujnagar, Tahsil Surajpur, District Surguja (CG). VERSUS 1. Ijrail Mohammad, S/o Shekh Ahmad, aged about 32 years, occupation Driver, R/o Village Narayanpur, PS Ramanujnagar, Tahsil Surajpur, District Surguja (CG). (Driver) 2. Ramnivas Sahu, S/o Ramjit Sahu, aged about 40 years, occupation Agriculture R/ovillage Ramanujnagar, PS Ramanujnagar, Tahsil Surajpur, District Surguja (CG). . / (Owner) 3..The Oriental Insurance Company 'timited, Through Branch Manager, Branch Office Sardar Road, Near State Bank of India, Ambikapur, Distt. Surguja (CG). (Insurer) (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) RESPONDENTS -&. 1 J/ (DB: Hon'ble !Vh\Baieev_Gypta, C.J^& Hon'ble Mr. N.K. Agarwal. J.) Present : Shri Atanu Ghosh, Advocate for theappellants. Smt. Meera Jaiswal, Advocate for respondent No.2. Shri Shailendra Sharma, Advocate for respondent No. 3. AWARD (Deliveredon JL/11/2011) Per : N.K. Agarwal, J; 1. This is claimants' appeal seeking enhancement in the compensation awarded by the 1st Additional Motor Accident Claims Tribunal, Surajpur, District Surguja (for short 'the Tribunal') vide award dated 07.04.2004, passed in Claim Case No. 157/02. 2. As against the compensation of Rs.25,00,000/- claimed by parents, unfortunate widow and children of deceased Hemsai by filing application under Section 166 of the Motor Vehicles Act, 1988 (for short 'the MV Act') for the death of deceased in the motor accident dated 06.03.2002; the Tribunal awarded a total compensation of Rs.3,84,000/- along with interest @ 5 percent per annum from the date of application till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led, material placed and submissions made by the pari:ies, ' liield: the accident had occurred due to rash and negligent driving of Mini Truck bearing registration No.MP-27-9853 by its driver i.e. respondent No.l/ljrail Mohammad; Hemsai died on account of injuries sustained in the said accident; respondent No. 3/The Oriental Insurance ,»,li:,.--is..:!... -fy' ^. •.,. » "^vssiy Company Ltd. not liable to pay compensation as the vehicle was used in violation of policy conditions; assessed and awarded total sum of Rs. 3,84,000/- along with interest @ 5 percent per annum from the date of application till its actual payment. Shri Atanu Ghosh, learned counsel appearing for the appellant would submit the Tribunal has erred in not awarding any sum towards non-pecuniary loss sustained by the appellants and also in exonerating the insurance company from its liability to pay compensation. Smt. Meena Shashtri, learned counsel appearing for the respondent No. 2 i.e.ownerof the vehicle also submitted that the Tribunal has wrongly exonerated respondent No.3 /the Oriental Insurance Company Limited from its liability to pay compensation. Per contra, Shri Shailendra Sharma, learned counsel appearing for respondent No.S/The Oriental Insurance Co. Ltd. supported the award and submitted: deceased was sitting in the Mini Truck as gratuitous passenger; the insurance company is neither statutorily liable to cover the risk of gratuitous passenger sitting in the Mini Truck nor has underi:aken such liability by entering into special / contract with the owner by charging extra premium therefor, therefore, the Tribunal has rightly exonerated the insurance company from its liability to pay compensationand the award needs no interference. • " ^^.;' -s3.t1,. •t. ••^ --^A j? -t/ .''; 3?*";^':'' 7. We have heard the counsel appearing for the parties, perused the order impugned and records of court below. 8. Indisputably, the deceased was sitting in the Mini Truck as a "Barati" i.e. gratuitous passenger. 9. It is settled law that provisions of the MV Act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger traveling in a goods carriage vehicle and the insurer would have no liability therefor. However, an owner of a vehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. Acontract of insurance which is not statutory in nature should be construed like any other contract. 10. We have noticed the terms of the contract of insurance. The policy issued in the case is goods carrying commercial comprehensive policy, which covers the risk of third party, paid driver and labourer. It does not cover the risk of gratuitous passenger sitting the vehicle. 11. In the absence of any contract covering the risk of gratuitous passenger, the insurance company cannot be •> . / ' held liable for payment of compensation to the claimants for the death of passenger sitting in the vehicle as gratuitous passenger. ^ i X- 12. In view of above, so far as finding of Tribunal that the insurance company is not liable for payment of compensation is concerned, does not suffer from any illegality. 13. So far as the amount of compensation awarded by the •» Tribunal is concerned, the Tribunal, after assessing the income of deceased as Rs.3000/- per month, has assessed claimants' yearly dependency as Rs.24,000/- per annum. By applying multiplier of 16, assessed compensation on account of loss of dependency as Rs.3,84,000/-. However, the Tribunal has erred in not awarding any sum towards loss of estate, funeral expenses and loss of consortium. By applying the ratio of judgment of the Apex Court in the case of Sar/a Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, in our opjnion, the appellants are entitled for a further sum of Rs.5000/- under the head of loss of estate, Rs.5000/- towards funeral expenses and Rs.5000/- towards loss of consortium, over and abovethe amount of Rs.3,84,000/- awarded by the Tribunal. 14. Fpr the reasons mentioned hereinabove, the appeal is -^ , /• allowed in part. The appellants are further awarded a sumof Rs.15,000/- under the heads of loss of estate, funeral expenses and loss ofconsortium, over and above the amount of compensation awarded by the Tribunal. <J The above enhanced amount of compensation of Rs.15,000/- shall carry interest @ 6% per annum from the date of application till its actual payment. The award is modified to the. above extent. Rest of the conditions of the award shall remain intact. 15. No order as to costs. Sd/- Chief Justice ^-J Sd/- N. K. Agarwal Judge