IN THE HIGH COURT OF CHHATTISGARH AT BILASPUK (C.G.) M.ACNo. .^J..?....../2010 \^1— ,_. . . „ (Division - %• ^ APFELLANTS : (Owner) ^y^y ^^y ..*^' ..--y RESPONDENTS "5. •:ss "•^N%^, -ls*"y • ' •• ••....j^c"^;^ '?/ ^&fsw^ ff)l: ...%c;^ W •Ss^^'-JS/ l^^^'^/^y' •€<fr"^ ,. •^" ^ ^ < ^ 1. RATANDEEP' . aged about 35 years S/o Shri Dilip Acharya 2. DILIP ACHARYA S/o LateShri Ganpat Rao Acharya Both Co-Owners of Tractor No. C.G. 07 N 0711 R/o Village Murta Tah & Police Station Navagarh Distt. Durg (C.G.) VERSUS 1. BISAKHABAI aged about 38 years Widwo of Late Bholaram Sahu 2. KU_,REVATI aged about 20 years D/o Late Bholarain Sahu 3. KU.FRABHA , aged about 18 years D/ o Late Bholaram Sahu 4. ' VIKRAM' aged about 13 years S/o Late Bholaram Sahu 5. MONU aged about 08 years S/o Late Bholaram Sahu r l^la^^: ^- 'IM-^uR^ (4) 6 6\ (^- 7. 6. KU. SEEMA aged about 05 years D/o Late Bholaram Sahu Respondents 4 to 6 since minors Through mother Smt. Bisakha bai Respondents 1 to 6 permanent residents of village MURTA Police station and Tahsil Navagarh District Durg (C.G.) (Status respondents 1 to 6 claimants before Motor Vehicle Claims Tribunal Bemetara (C.G.) SHRI PANCHURAM 8. ^ aged about 44 years S/ o Roopram Vishwakarma Driver R/o village Murta P.S & Tah. Navagarh Distt. Durg (C.G.) BAJAJ ALLIANCE INSURANCE COMPANY LIMITED Shiv Mohan Bhawan Vidhansabha Road, Pandra Raipur (C.G.) MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellants/ Owners Respondents M.A. fcl No. 215/2010 Ratandeep and another Vs Bisakha Bai and others ^ ORDER FOR CONSIDERATION Sdi- G. Minhajuddin Judge JUOGE ^ .10.2011 HON'BLE SHRI I.M. QUDDUSI. J Q^C^^\ h Sd/- l.M.QUddusl Judge ) ©.10.2011 POSTFORORDERON ' 1 OCTOBER.2011 ^ Sd/- G. Minhajuddin Judge If .10.2011 //^i' ^wJ^SE N '!^'^v^. ii.^3S\^ l^S HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellants/ Owners Resoondents MA. fcl No. 215/2010 Ratandeep and another Vs Bisakha Bai and others ^ Present: Mr. V.G. Tamaskar, counsel for the appellants. Mr. A.L. Singroul, counsel for respondents No. 1 to6. Mr. Avinash Chand Sahu, counsel for respondent No.7. Mr. S.S. Rajput, counsel for respondent No.8. ORDER (Passedon ^ October, 2011) Per G. Minhaiuddin. J; 1. This appeal has been filed by the appellants/owners under Section 173 of the Motor Vehicles Act, 1988 against the award of the Additkinal Motor Accident Ctaims Tribuna! (FTC), Bemetara, Distt. Durg, dated 8.12.2009 passed in Cfaim Case No.-W/OS whereby and whereunder respondent No.S-Bajaj Aliiance Insurance Co. Ltd. - has been exonerated from the liabifity and the appellants/owners have been held liable to pay the amount ofcompensation. 2. Brief facts of the case, as per averments made in the claim petition, are that on 19.7.2008 when Bholaram was coming back to his home from the agricutture field, respondent No.7 Panchuram by driving tractor bearing registration No. CG 07/N 0711 (hereinafter referred to as "the offending vehicle") rashly and negligently, dashed Bholaram, resulting in his instantaneous death. Report_oUhe .A\ r ••". ':.':.s:i s- accident was lodged against respondent No.7 in the Police Station - Nawagarh, whereupon after investigation, charge sheet was filed against him before the concerned Court. 3. At the time of accident, the deceased was 42 years and was eaming Rs.5800/- per month by working as mason. The claimants, who are widow and children of the deceased, filed a claim petition under Section 166 ofthe Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.18,00,000/- against the death of Bholaram under various heads. 4. However, learned Tribunal, after hearing counsel for respective parties, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.3,64,500/- in favour of the claimants, fastening the liability upon the appellants/owners and exonerating respondent No.8 insurance company. 5. We have heard learned counsel for the parties, perused the LCR as also the impugned award. 6. Contention of learned counsel for the appellants is that respondent No.S/insurance company has been wrongly exonerated from its liability to pay compensation as there was no breach of terms and conditions of the insunance policy and deceased Bholaram, at the time of accident, was returning to his house and the offending vehicle i.e. tractor being rashly and n^ligently driven by respondent No.7 Panchuram, dashed the deceased, on account of which he sustained fatal injuries, resulting in his death. He further contends that this fact is ctearly bome out from the evidence on record and the claims Tribunal has committed a manifest error of law in SQcas'sas'a -^^ -<• ^ exonerating respondent No-8/insurance company and fastening the liability on the appellants/owners to pay compensation. 7. On the other hand, learned counsel for respondents No.1 to 6/claimants has supported the impugned award, and learned counsel for respondent No.7 has taken the stand, as taken by learned counsel for the appellants/owners. 8. Theshort question to be decided in this appeal is - whether at the relevant point of time i.e. occurrfng of the accident, the deceased was a pedestrian or he was sitting in the offending vehicle driven by respondent No.7 Panchuram? 9. Respondents No. 1 to 6 /claimants in support of their claim petition under Section 166 of the Act, 1988 have examined Ku. Rewti Sahu (AW-1), Shankarial Sahu (AW-2), who are daughter and brother of the deceased respectively, and Sakharam Sahu (AW-3). Respondent No.7 driver Panchuram has examined himselfas NAW- 1. In addition to this, respondents No. 1 to 6/claimants have filed certified copies of the documents filed along with the charge sheet submitted for the offence under Section 304A of the IPC against respondent No.7 driver Panchuram before the Additional Chief Judicial Magistrate, Bemetara, which have been marked as Ex.P/1 to P/10. The appellants/owneis and respondent No.7/driver have filed photocopies of the documents D/1 C to D/3C, which are driving licence of respondent No.7, certificate of registration of the offending vehicle tractor and insurance policy Issued by respondent No.S/insurance company in favour of the appellants/owners, which was effective on the^date gfaccident i.e. 19tt July, 2008. From 1!' 0 pemsal of the certified attested copy of the FIR (Ex.P/2C), whlch was lodged within 35 minutes of the occurrence of the accident by Kesri Sahu, who is nephew of the deceased, it is found that at the time of accident the deceased was not a pedestrian, but was sitting in the tractor and on account of rash and negligent driving of the tractor by respondent No.7/driver Panchuram, the deceased had fallen down from the tractor and was crushed under the wheel, resulting in his instantaneou's death. 10.0n behalf of respondents No. 1 to 6/claimants, Sakharam Sahu has been examined as AW-3, who claims to be an eyewitness and was, at the time of accident, also sitting in the said tractor. The fact of Sakharam (AW-3) being an eyewitnesses has not been challenged. In the cross-examination on behalf of respondent No.S/insurance company, Sakharam Sahu (AW-3) has, in para-2 of his statement, in very clear terms, admitted that at the time of accident, respondent No.7 Panchuram was driving the tractor and he (Sakharam AW-3) as well as deceased Bholaram were sitting in the tractor and while so traveling, before reaching Village-Mudta, deceased Bholaram had fallen down from the tractor and was crushed under the wheel, resulting in his death. This is beyond doubt that there is no sitting capacity in the tractor. Respondent No.7/driver had permitted the deceased as well as Sakharam (AW-3) to sit in the tractor, thereby committing breach of terms and cQnditions of the insurance policy. In view of this, respondent No.S/insurance company could not have been held liable under the insurance policy for payment of compensation and has been rightly exonerated from the liability by the claims Tribunal. In viewLOfJhis, the finding of the claims '^ 6' ^ C7 ^ Tribunal exonerating respondent No.S/insurance company from the liability to pay compensation and fastening the liability upon the appellants/owners ofthe offending vehicle is affirmed. 11. In the result, the appeal being devoid of substance deserves to be and is, accordingly, dismissed. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge !"]1."•-WMRS'S