^^t' .r 'J'>J. f. IN THEHON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WI.A. (C) No.- /2009 APPELLANT i^.-<^ ^ ^"^ ^^.*'r= •:--\->'.-'t •1tl t^<K**^ ^'^^^..-^'^ ^,^ -"^ ^..-••' THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, MAIN ROAD (SADAR BAZAR) JAGDALPUR, DISTRICT - BASTER C.G. Vrs. RESPONDENTS/CLAIMANTS :- ^l. SMT.DHURPUTAW/OLATEDHABLU® GUFTO, AGE 22 YRS. CASTE- BHATRA ^2. DOMU S/OLATELAKHAN,AGE45YRS, CASTE- BHATRA, .3. SMT. CHANCHALA W/0 DOMU, AGE 43 YRS, CASTE- BHATRA, ABOVE ALL RESIDENT OF VILLAGE MOKAGOAN, TIKARA GUDAPARA, PO.- MURTAHANDI, THANA - KOTPAD, DISTRICT -KORAPUT (ORISSA), RESPONDENTS/NON-APPLICANTS :- 4. SOMARU HARIJAN S/0 ALPIYAS HARIJAN, AGE 22 YRS., CASTE - HARIJAN, RESIDENT OF VILLAGE & POST - MURTAHANDI, THANA KOTPAD, DISTRICT -KORAPUT (ORISSA), 5. ^,5. RAJESH KUMAR GUPTA S/0 LATE BALESHWAR PRASAD GUPTA, AGE 49 YRS. CASTE - GUPTA, RESIDENT OF VILLAGE & POST - MURTAHANDI, THANA -KOTPAD, DISTRICT -KORAPUT (ORISSA), APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 APPEALVALUED Rs. 4,32,000/- ( APPEAL BY INSURANCE) CQMPENSATION CLAIMED BEFORE TRIBUNALRs. 7,53,000/- AWARDED AMOUNT BYTRIBUNAL Rs. 4,32,000/- A^^ ..2. HI6H COUKT OF MHATT1S6AW AT BILASPI^ &IVISION BENCH: HON'BLE MR. I.M.QU&&USI S HON'BLE MR. PRASHANT KUttAft MISHRA. JJ, Appellont Respondents M.A. MNo.877^00? The Orienlol Insurance Company Ltd. Vs Smt. Dhurputa & others Present: '. Sudhir Agarwal, Advocate for the appellant. Anr. P.K. Tulsiyan, Advocate for r-espondents No.l to 3 None for the respondeRts No.4 & 5 though ^rved. ORDER (Orall (7th January. 2011) I.M. Quddusi. J: 1. Heard. '. This is an insurer's appeal questioning ffie tiability only. 3. By way of this appeal under Section 173 of the ttotor Vehicles Act, 1988 (for short the Act'), the appellant-Insurance Company has impugned the award dated 23.09.2008 passed by the learned AAoTor Accident Clainns Tribunal, Bastar at Jagdalpur (C6) (for short 'the Tribunal') in Claim Case No.llO/ZOOT allowing the claim applicotion of the claimants, awarding a compensation of Rs.4,32,000/- to the claimants ond fastening tiability on tiie appellont- Insurance Company to first satisfy the award and thereafter recover the same from owner of The vehicle. 4. Facts of the case, in brief, are that on 15.2.2007 Dhablu alias Suota (since deceosed), after untoading tamarind was returning to his village AAurtihandi, P.5. Kotopad, District Korq)ut (Orissa) in the pick-up vehicle bearing registroition numbers OR10-&-1044. The said pick-up vehicle met with an occident wi1ti the vehicle coming from the opposite side as a resutt said bhablu fetl down and sustained grievous injuries. He was Taken To AAaharani 1-lospital, Jagdalpur where he died on 17.2.2007 while undergoing treatment. At the relevosnt time, the said vehicte was driven, owned and insured by the respondent No.4, 5 & the appellant herein respectively. The ctajmgnTs/. -*• ..-..„„.— -z- respondents No.l to 3 herein, who are unfortunate widow and parents of the deceased, have claimed compensation on •the ground that they were dependent on the deceased, who was the sole earning member in family, and due to his death, thsy have suffered loss of income. 5. Non-appliconts No.i & 2 have fited their written statements and denied the ctaim of 1+ie cfaimants. In the additional submissions the 'non-applicant Nos.l A 2 have stated thot at 1+ie relevant time 1+ie vehicle was insured with the appellant-Insuronce Company and therefore if any compensation is awarded to the claimants, then the same is payoble by The Insurance Compony. 6. Non-dpplicant No.S-Insurance Company also fjled its writl'en statement In which it has been mentioned that 1+ie deceased was tpaveling in the said vehicle as passenger. Driyer was not having valid and effecTive driving hcencs at the time of accident cuid as such The vehicle was plied in breach of the insunancepoticy <md therefore, -the insurance company i5 not tiable to pay ttie amount of compensation. 7. On the pleodings of -rfie parties, 1+ie Tribunai framed as many as six issues and after hearihg 1+ie parties and considering the material available on record arrived ar a conclusion thaT -the claimants are entitled for compenaxtion as fhe incident had taken place due to rash and negligent driving of respondent No.l herein and accordingly, ailowed the claim petition and awarded a sum of fts.4,32,000/- as compensation. TTie Tribunal 'has also gronted liberty to the <ypellant Insuronce Compony to first pay the amount of compensation to the ciaimants and thereafter recover the some from the owner of the vehicle in question. 8. On the other hand, fearned counsel for 1+ie respondents No.l to 3 has supported •ttie impugned award. 9. Mr. Agarwd, learned counsel for the aippeliont-Insurance Compony has submitted that the deceased was trayeling inside the said vehicie and was allegedly an employee and therefore, he cannot be treated as 1+iird party and - thus, The' Tribunal has erred in passing the direction regarding pay and recover. —- 1 ''^•^S'^E^^SS^ ^^EB^M@fmasB M' w -- 5' 10.0n the other hond, learned counsel for respondent no.l to 3 has supported the impugned award. 11. We have heard learned counsel for the parries and perused the recordsof the Tribunal as also the findings given in the impugned award. 12.It is true That the Hon'ble Apex CourT in the mart-er of National Insuronce Company Vs. Swam Singh & others reported in (2004) 3 SCC 297 has held thus:- "107.We may, however, hasten to add That the Tribunal dnct •riie court must, however, exerci^ their jurisdiction to issue such a direction upon consideration of the fccts and circumstances of each case and in the event siich a direction hos been issued, despite arriving at a finding of factto the effect that the insurer has been ab!e to establish that the insured hois committed a breach of contract of issucmce os envisaged under sub-ciause (ii) of ciause (a) of sub-section (2) of Section 149 of the Act, the insuronce company shali be entitled to realize the awarded arnount from the owner or driver of the vehicle, as the case may be, in exscution of tiie aams award hcvang ragcird to ths provisions of Sections 165 A 168 of 1+ie Act. However, in the event, having regard to 1+ie limited scope of inquiry in the proceedings before the Tribuna! it had not been ab!e to do so, tiie insurance company may initiate a separate action thereforagainst the owner or the driver of ihe vehicle or both, os the ease moy bs. Those exceptional cases m<xy arise when tiie evidCTice becowes aivai!ab!s to or comes to the notice of the insurer at a subsequent stage or for one reason or itie other, ihe insurer was not given on opportunity To defend at all. Such a eourse of action may a!so be i^sorted to when a fraud or collusion between the victisri sirid the owner of the vehicte is detected or comes to -rhe knowtedge of the insurer at a iater stage." However, present is not the case of third party, rather it is the case where the deceased was engaged in the said vehicle as employee and was sitting inside The vehicle and as such, his status in the said vehicte wos of gratuitous passenger and as per SecTion 147 of the AcT the gratuitous passen9ers sitting ih a goods vehicle are not required to be covered under the statutory policy. Therefore, impugned award of •the Tribunal, at one hand exonerditing •riie Insurance Company from its liability ond at the same time directing to puy the claiinouits cxnd thereafter recover from the owner, is erroneous. 13.In the result, we altow this appeal, set aside the award dated 23.9.2008 passed by the Tribunal in Chim Case No.110/07, so far as it retates to fdstening of liability on the oppeltont-Insurance Company and held that the 1$ ^' Roshan/- ^<v- appellant - Insurance Company is not liable to pay compensation to the claimants involved in the impugned award and the same shali be poid by the ow/ner of vehicle in question. In case ony amount deposited by the appeltant- Insurance Company has been withdrawn by the claimants, it will be open for it to recover the same from the owner of vehicle. However, if the amount. so deposited, has not been withdrawn so far, the insur.ance company shotl be allowed to withdraw the same. Rest of the conditions and findings of the impugned award are hereby confirmed. It is hereby clarified that the claimants are free to execute the award nqainst the owner of vehicle. 14. No order as to costs. IS^Certified copy as per rules. SdA i, I.M.Quddusi f Judge 1 Prashant Kumar Mishra Judge B. .^--