l^jl^j^l^jj^ ^^^^t^^:^^!A^^^^rt^'^;^'^<Lu^^w^^^r~^J^r^1' HIGH COURT OF CHHATTISGARH: BILASPUR SlNGi..EBENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. M.A. (0 No. 1229 of 2009 APPELLANT RESPONDENTS Branch Manager, The Oriental Insurance Co.Ltd. Versus Babu Singh and others. ORDER Pronouncement of order ^.09.2010 Sd/- R.L. Jhaiiwar Judge UaMfRiSB'^'eit'E'i'SiTSSii; '"•'M.i i(i''K^lStKi-:'SR ..f"^.-, •^teg»i1 ^:^^^^—,^f^ 'i3 ]j ^ /? :—$".. s' HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri JusticeR. L. Jhanwar, M. A.(C) No.1229/2009 APPELLANT Branch Manager, The Oriental Insurance Co. Ltd. Near High Court, Bilaspur, District Bilaspur C.G., Head Office : Oriental House PO. N.No.7037A/25/, 37, AsafAal Road, New Delhi-110002 Versus _1., Babu S[ngh S/q Mohan Singh, Caste ~: Gond, Age 48 years. 2. Smt. Shyamkali, W/o Babu Singh, Caste Gond, Age 44 years. 3. Radheshyam S/o Shivnath Panika, Age 35 yrs. Village Sendha, PO. Nagpur, Thana Manendragarh, District Korea, C.G. 4. Smt. Bundo Bai, W/o Raghuveer/Age 80 years, Caste Panika, Resident, Pasori, Thana Kelhari, District Korea (C.G.) APPEAL UNDERSECTION 173 OF THE IVIOTOR VEHICLES ACT Appearance: "Shri-Sudhir agrawal,counselfpr~theappellant. None for respondents No.1 & 2. Shri Rajesh Tiwari, Adv. Appears on behalf of Shri Anurag Dayal Shrivastava, counsel for respondents No. 3 & 4. RESPONDENTS Claimants Respondents/non- applicants: ORDER . (Passedon^.09.2010) This is an appeal by the insurance company di.ecting againstthe impugned award dated 29.04.2009 passed in claim case No. 14/2007 by the 1 Additional Motor Accidents Claims Tribunal, Manendragarh (in short 'the Tribunal') whereby the Tribunal has'awarded asum of Rs.2,11,000/- as compensation in a death case. 2. Brief facts, ih a nutshell, are that on 17.12.2006, due to rash and negligent driving of respondent N.3, the deceased Ramesh Singh, who was said to have been seated in the tractor bearing No.C.G.16/A/0243 and trolley bearing No.C.G.16/A/0244 (for short 'the offending vehicle'), '•••-'^:^. ' ^ felldown and came underneath the offending vehicle, as a result ofwhich he died. The deceased wasengaged as labourer for the said offending vehicle. 3. In claim petition filing under Section 166 of the M.V.Actseeking compehsation of Rs.24,38,000, the learned Claims Tribunal awarded a sum ofRs.2,11,000/- for the deafh of Ramesh Sirigh on account of motor accident. The Tribunal awarded interest at 9% per annum on the said compensatjon. The Tribunal further fastened the liability to pay compensation awarded by it on respondents i.e. owner and insurance eompany. 4. Respondents No. 3 & 4 denied all the facts and stated that the deceased himself jumped from the offending vehicle due to that he died and not due to rash andnegligent driving of its driver. Respondent No.4 specifically stated that the insurance company is liable to pay compensation on the ground thatthe offending vehicle was insured with the insurance company and after testing the driver and issuing driving licence, the owner has given permission to its driver to drive the offending vehicle. 5. Aggrieved by the impugned order, the insurance company has comewith specificpleadingsanddenied theclaim petition. Theinsurance company specifically stated that on the date of accident, thesaid offending vehicle was notinsured with it. It was also put forth that policy of insuranee produced by the owner of offending vehicle is not valid policy and the insurance company has not issued such policy on 05.09.2006 b6cause Branch Office.Bilaspur, near High Court was not in existence as dn 05.09.2006. Theaforesaid"policyNb. 2007/221 was issued in the nameofBundo Bai for tractorNo. C.G.T6 A 0243 and trotley No.C.G.16 A 0244. This policyis not valid policy. On the same number i.e. 2007/221 the policy which was originally issued is in the name ofAnil Kumar Dixit for tractor No. C.G.10 A 2085 and trolley No.C.G.10 A 2086 andwas effective from 20.06.2006 to 19.06.2007. On the same number, two policies cannot be issued. Therefore, the insurance company is not liable to pay compensation. The Claims Tribunal has wrongly fastened the liabilityon, wbich js illegal. '^Ss^SS^'^SSiB^ WsfSeSi'ia^fSE. 6. After affording opportunity of hearing to the parties, theClaims Tribunal, on close scrutiny of the evjdence led before it, holding that accident occurred due to rash and negligent driving oftractor No.C.G.16 A/0243 and trolley No. C.G. 16 A/0244, awarded a sum of Rs.2,11,000/- and fastened the liability on the respondents jojntly and severally. Against theimpugned order, neither the owner has filed any appeal nor the claimants have filed any appeal, therefore, the finding relating to the rash and negligent driving of tractor by its driver has attained finality. 7. Learned counsel for the appellant argued that tractor No.C.G.16 A/0243 and trolley No. C.G. 16 A/0244 was never insured with it. The ownerof offending vehicle made aforged policy No. 2007/221, which was exhibited as Ex.A-2-6 and no receipt has been produced to show that premium has been to theappellant/insurance company and such policy was never issued by the company. According to him, the policy which wassaidto have been issued was the original policy of insurance issued in favour ofAnil Kumar Dixitfor the same number for a period effectjve from 20.06.2006 to 19.06.2007 and tractor-trolley number is C.G.10 A/2085 C.G.10 A/2086. Therefore.the appellant/insurancecompany is not liable to pay compensation. It was further argued that the multiplier used by the Claims Tribunal is not proper and also stated that in tractor the deceased was travelling, which isnot permissible according to Rules. 8. Learned counsel appearing for respondent No.3 argued that the policy was issued by the insurance company. A duty is cast on the insurance company to prove that the policy is fake policy. They have paid the premium to the Agent who after taking premium given the said policy, therefore, they are not responsible. 9. I have heard learned counsel for the parties aMength and have perused the impugned order and the record of the Claims Tribunal..- 10. tn this case, the learnedClaims Tribunal has taken monthly income ofthe deceased at Rs.1500/- and Rs.18000/- per annum. After deducting 1/3 towards personal expenses, dependency comes to Rs.12,000/- and after taking the age pf 21 years, the Claims Tribunal used -multiplier of 17 and total dependency comes to Rs.2,04,000/-. The Tribunal further awarded Rs.7000/- under other permissible heads. Thus, the learned !^^^!!^^^^^r^^ y.wWS'Ss'^ Tribunal awardeda sum of Rs.2,11,000/- as total compensation to the claimants. So far as use of multiplier is concerned, based on the scheduled as given in Section 163A ofthe M.V.Act,the learned Tribunal has rightly applied multiplier of 17 and awarded Rs.2,110,000/- as compensation. As against this finding, no appeal has been filed either by theelaimantor bythe owner, therefore, thisfinding has attainedfinality. 11. As regards genuineness of policy of insurance issued in favour of Bundo Bai, that policy of insurance in favour of Bundo Bai is on record as Ex.N.A.2-6. It is clear from the policy that it was effective from 05.09.2006 to 04.09.2007 and was issued from Branch Office, Bilaspur near High CQurt for tractorNp. C.G.16A0243 and trolley No. C.G.16 A0244. The number of said policy is 2007/221. On this, the evidence was led by the insurahce company by producing its witness namely M.P.Gupta. It reveals from hisdeposition that theOriental Insurance Company/appellant had never issued above policy in the name of Bundo Bai becauseno office of the appellant was in existence near High Court on the said dated i.e. 05.06.2006. He also deposed that on the same number i.e. 2007/221 the policy which was issued by the appellant/insurance company was in the name ofAnil Kumar Dixit for the tractor No. C.G. 10A 2085 and trolley No. C.G. 10 A 2086 and was effective from 20.6.2006 to 19.06.2007. According to him, on the same number, two policies cannot be issued. Therefore, the policy Ex.P.N.A.6 prqdueed by the owner in the name of Bundo Bai is notvalid. The reason given by the above witness is that no premiumwas paid in the name of Bundo Bai for that policy. Inthis regard, this witness produced documents i.e. Collection Report from 01.09.2006 to 07.09.2006 and stated on 05.06.2006 there was no entry in regard to the payment of premium by Bundo Bai. 12. According to the evidehce of Bundo Bai N.A.W.2 (1), she has stated in her evidence thattractor No. C.G. 16A 0243 and trolley No: C.G. 16A 0244 is in her name and driver was Radheshyam on the date of aCGident. Repondent No.1 Radheshyam has also deposed that deceased was also working for her tractor and died due to fall from the tractor on the date of incident. Bundo Bai has also stated that she has filed registration book and policy as Ex.N.A.6. Radheshyam N.A.W.2 (2) has deposed that he was the driver of offending tractor and was holding driving licence to ^1-..^ -sS'Ks::t •A.'^s:S;8B®8 ^^syjii ^^^/i drive Light Motor Vehicle and Qn the date of incident, Ramesh Singhwas travelling on tractor and died due to accident. On the said date, the owner was Bundo Bai. He has stated that his licence is exhibited as N.A.1-3C (phQtocopy) which is for LightMotorVehicle and not for tractor. 13. Having thus considered the above evidence, it is clear that Bundo Bai was owner of the offending vehicleand Radheshyam was the driver on the date of incident. Bundo Bai has produced the insurance policy of Oriental Insurance Company in question. It is evident from the evidence ofM.P.Gupta thatthe policy in question is in the name of Bundo Bai but that was not issued from his office as on that date i.e. 05.06.2006 no such office ofinsurance companywas in existence near High Court. Therefore, according to him, that policyin question is fake one. It is also evident that no premium was paid by Bundo Bai for insurance of her tractor. Therefore, no policy can be issued without premium. It is also clear from the statement of M.P.Gupta that the number of policy in question is 2007/221 and on the same number one more policy wasissued in favour of Anil Kumar Dixit, who has paid premium for his tractor No.C.G.16 A 2085 and trolley No. C.G. 16 A 2086 and in fhe same numbertwo policies cannot be issued. Thus,it is clear from his statement that the policy in question in the name of Bundo Bai was never issued by the appellant / Oriental Insurance Company. On this point, no evidence was led by Byndo Bai to discredit the testimony ofM.P. Gupta. Therefore, the policy in question in the name of Bundo Bai was never issued by the appellant/insuranee company. Thus, the insurance company is not liable fo pay any compensation as such it is exonerated. 14. Now, so far as the deceased was travelling along with the driver in tractor is concerned, according to the evidence of Burido Bai and Radheshyam, it is clear that deceased -Ramesh Singh was found to have been seated alongwith driver on tractor. But in the document.'which is a certificate of Registrationand was exhibited as N.A.2-5C, in which in column No.12 seating capacity is one (including driver) is shown. In tractor, only drivercan sit and'there is-no seat for any other person in tractor, therefore, the tractor was also plying against the provisions of M.V.ACt. Therefore, insurance company is not liable. fl:? ^^3yyiijf «€/ 15. For the fpregoing discussion, l find that the policy in the name of Bundo Baiwas not issued bytheappellant/insurance companyas on date i.e. 05.09.2006 and also on the date of accident the deceased was found to have been seated along with driver on the tractor, which is against the provisions of M. V. Act. Therefore, the insurance company is not liable to pay compensationas awarded by the Tribunal to the claimants. The learned Claims Tribunal has erred in fastening liability on the insurance company, which is liable to set aside. Accordingly, the impugned award is modified to the effect that the insurance company is exonerated and compensation awarded by the Tribunal shall be paid by the owner of the offending vehicle. c\\^^ 16. In the result, the appeal ispartly tojhe extentindicated above. Sd/- R.L. Jhaiiwar Judge