IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C) N0. ^^ APPELLANT/: /NON-CLAIMENT N0- 2 .^•ts<^- ^ ./2009(s.B.) SingfeBencfc- Harmeet Singh Bhatiya, S/o Hardyal Bhatiya, aged about 27 years, R/o - Jaisatambh Chauk, bistt- Rajnandgaon (C.6.) N0N-APPELLANTS : /7 •^y // c-l/' ^^ "vv> ^ ^ ^ y '^ y ^v^ VERSUS ^ 4 ^ ^ Smt. KusumlatQ, W/o Shri Ashwani yadav, aged about 50 Years ?. Ashwani Yadav, S/o Jhaduram Yadav Aged about 55 Years Both R/o Bangali Chal, Ward No- 38, Bashantpur, Rajnandgaon (CG) CLAIMENTS ^3. The National Insurance Company Ltd., Branch Office Kamthi Line, Rajnandgaon (CG) .4. Jitendra, S/o Ramnath Koshale, Aged about 29 Years, Constable No- 275 II Battalions Sakri, Distt- Bilaspur (C.G.) ? Chandradhar Yadav S/o Bisarurom Yadav, aged about 38 years, Head Constable 770 8th Battalions Manpur Camp, Present R/o Jaldhara Chauk, in the house of Chetan Meshram, Bashantpur, V^istt^RcyriflQ<dhQon_{C.6.) >. Nilesh Kumar, S/o Pitamber Lal Devangan, aged about26 Years R/o Manav Mandir Chauk, Distt- Rajnandgaon (CG) (k— MEMPP^"--" np APPEAL UNnFR .'iFCnON-lZlOE-'llE ^OT^p VPMT^I PS ACT. 1988 h 1 r HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.CNo. 985 of 2009 APPELLANT RESPONDENTS Harmeet Singh Bhatiya VERSUS Smt. Kusumlata & others (APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT) (SB: Hon'ble Mr. N.K. Aaarwal, J.) Present : Shri Samir Singh, Advocate for the appeliant. None for respondent No. 1,2 & 6. Shri Gautam Khetrapal, Advocate for respondent No. 3. ORAL ORDER (Passedon 27.08.2011) This is owner's appeal against the award dated 29.09.2008 passed by Ist Additional Motor Accident Claims Tribunal, Rajnandgaon (for short 'the Tribunal') in claim case No. 180/07. Brief facts of the case are that: on 04.10.2004 collusion took place between Hero Honda Motorcycle bearing regjstration No. CG-08- A-4241 being driven by respondent No. 6, owned by appellant and insured by respondent No. 3, and motorcycle bearing registration No. CG-07-G-4856 being driven by respondent No. 4 and pursuant to the injuries sustained in the said accident, Satish, who was sitting as a pillion rider on the motorcycle No. CG 8-A-4241 , died. As agahst compensation of Rs. 30,90,000/- claimed by respondent No. 1 & 2 i.e. unfortunate parentsof deceased Satish by fiiing application before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short 'the MV Act') for the death of deceased in the said accident, the Tribunal assessed and awarded total sum of Rs. 2,60,532/- by saddling liability of payment of ^ ^' 8. compensation upon appellant and driver & owner of motorcycle No. CG-07-G-4856 in equal proportion holding both the drivers equally negligent. Respondent No. 3/insurance company was directed to first pay the amount of compensation awarded against the appellant to the claimants and then to recover it from the appellant. Shri Samir Singh, learned counsel appearing for the appellant would submit : the Tribunal has erred in exonerating the respondent/insurance company from its IJability to pay compensation to the claimants. On the other hand, Shri Gautam Khetrapal, learned counsel appearing for respondent No. 3/lnsurance Company supported the award impugned and submitted that in the facts and circumstances of the case, the Tribunal has rightly exonerated the insurance company and the award impugned needs no interference. 1 have heard the counsel appearing for the parties and perused the award impugned as well as record of the Tribunal. Admittedty, deceased Satish was sitting on the motorcycle as a pillion rider. Policy of insurance (Ex. D/1) is a motorcycle/Scooter package policy. As per circular issued by Insurance Regulatory and Develbpment Authority such policy covers the risk of pillion rider, therefore, it is not in dispute that deceased was covered under the policy. The Tribunal exonerated the insurance company on the premise that three persons were sitting on the motorcycle No. CG-8-A- 4241. Inference regarding negligence of motorcycle driver may or w^^. ,.^i:f3:s~2a°^ /y^ ^ { %^^ Sahu may not be drawn due to sitting of more persons upon it than its sitting capacity and the Tribunal has already held driver of both the motorcycles equally negligent to the cause of accident but merely the fact that more persons were sitting on motorcycle than its sitting capacity will not absojve the insurance company from its liabiljty to pay compensation inasmuch as such defence is not available to the insurance company under Section 149 of MV Act. Therefore, the Tribunal has clearly erred in absolving the respondent No.S/insurance company from its IJability to pay compensation. 9. For the reasons mentioned hereinabove, the appeal is allowed in part. Respondent No. 3/The National Insurance Company Ltd. is also held jointly and severally liable for payment of compensation to the claimants along with appellant. So far as direction of pay and recover is concerned, the same is set asjde. Rest of the conditions mentioned in the award shall remain intact. 10. The appellant is entitled for refund of amount deposited by him before the concerned Tribunal. However, jf the amount is disbursed to the claimants, the appellant is free to recover the same from the respondent No. 3/insurance company. 11. In the facts and circumstances of the case, there shall be no order as to costs. Sd/- N.K. Agrawal Judge ^