'ts^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.)~2^>U M.A.(C)No. L^^C of Bivision Bendl A^PELLANT : ^©ulabSin.gh Dhruw, S/o Jivrakhan ^ , <- Lal Gond, aged about 32 years, \\ ^-°'rf'l'^ Permanent resident of Village-Raital 1 L-:iC^.:.^^" Bagbahra, District-Mahasamund ^ESS^^^-^r'""^'**' ^^•).a[ p.res.^n{ R!o YI"a9e-Jaraud. -\\ P.S.-Mandir Hasaud, District-Raipur (C.G.) VERSUS ^^av: »r^3^* D'^°'"'o^- o \- B^SSPONDENTS ^' Mukesh "Kumar Dhruw, S/o Shri RamKumar Dhruw, R/o Village-Kirna, Post-Baikunth, Tahsil^Sa^flwa; District-Raipur (C.G.) ^TCL. 2. ^t-^UL-^S rs>. ^--\\ The New Indialnsurance Company Limited, through Branch Manager, Branch Office Baloda Bazar, District- Raipur (C.G.) CLAIM BEFORE THE TRIBUNAL AWARD AMOUNT Rs.3,18,000/- Rs. Nil/-' VALUATION OF THE PRESENT APPEAL: Rs. 3,1 CGOO/- MISCELLANEOUS APPEAL U/S.~173 OF THE MOTOR VEHICLE ACT,1988 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Respondents M.A.FclNo. 166/2011 Gulab Singh Dhruw Vs Mukesh Kumar Dhruw and another Appellant Respondents M.A.MNo. 164/2011 Sewakram Dhruw Vs Mukesh Kumar Dhruw and another Present: Mr. Goutam Khetrapal, counsel for the appellant. Mr. H.P. Agrawal, counsel for respondent No. 2. ORDER(Oral)B (21stSeptember,2011) Per I.M. Quddusi. J 01) Heard on IA Nos. 01, applications for condonation of delay in filing these appeals as the same have been preferred with a delay of 550 days. 02) On due consideration of the reasons assigned in the above applications, which are also supported by the affidavits, we are of the opinion that the appellants have been able to explain the delay satisfactorily. Accordingly, the applications (IA Nos. 01) are allowed and delay in filing the appeals is hereby condoned. 03) With the consent of the parties, the appeals are being finally dispose.d of at the admission stage itself. . 04) Since these two appeals filed by the injured/clafmants, who were pillion riders in two wheeler, are directed against the impugned awards of; 12th Addition^l Motor Accident Claims Tribunal (FTC), Raipur (in short "the Tribunal") dated ^VGWMH^' 16.2.2009 passed in Claim Cases No. 75/08 & 76/08 respectively, whereby their claim petitions have been dismissed, and they arise out of the same accident, therefore, they are being disposed of by this common order. 05) Brief facts of the case are that on 26.4.2008 when the appellants/claimants were coming to their home Village - Jaroud on motorcycle Hero Honda Splendor Plus (Sold) bearing Chassis N0.10ET8GB13029, Engine No.12675, which was driven by one Lakhan Dhruw, at that time in front of Kharkhara pond of Village -r Umriwa, the driver of an unknown truck by driving the truck in a rash and negligent manner, dashed the said motorcycle from the opposite direction, causing the accident and ran away. On account of the said accident, the rider of the said motorcycle namely Lakhan Dhruw and the appellants/claimants, who were pillion riders, sustained grievous injuries and they were taken to Bhimrao Ambedkar District hlospital, Raipur for treatment by the police with the help of persons present in the locality. The appellants/claimants sustained fracture in right leg and grievous injuries over eyes and hands. Report of the accident was lodged at Police Station - Hasoud, Distt. Raipur, whereupon offence under Section 279, 337, 338 and 304A of the IPC was registered against the driver of the unknown vehicle. 06) At the time of accident, appellant Gulab Sjngh was 32 years and appellant Sewakram Dhruw was 33 years and each of them were earning Rs.3,000/- per month by doing agriculture work. However, on account of the injuries caused in the above accident, they have sustained permanent disability. On the date of accident, the said motorcycle was owned by respondent No.1 and insured with respondent No.2. With the aforesaid averments, the appellants/claimants filed two separate claim petitions before the Tribunal under Section /. 163A of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a compensation of Rs.3,18,000/- each under i ^'ip^ i %^^ various heads. However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, dismissed both the claim petitions. 07) It is not in dispute that the insurance policy was a comprehensive policy and the Insurance Regulatory and Development Authority, vide its Circular dated 16th November, 2009, has directed all the insurance companies to follow the earlier circulars issued on 18th March, 1978 regarding bccupants carried in private car and 2 June, 1986 regarding pillion riders in a two wheeler and further directed that these circulars make it clear that the insured's liability in respect of occupant(s) carried in a private car and pillion rider carried on two wheeler is covered under the Standard Motor Package Policy (Comprehensive Policy) and these circulars should be complied with, and non-compliance of the same would be viewed seriously by the Authority. 08) We have heard learnedcounsel for the parties, perused the LCR as also the impugned awards. 09) Since both the claim petitions were filed under Section 163A of the Act, 1988 and sub-section (2) of Section 163A provides that any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or defaultof the owner of the vehicle or vehicles concerned or of any other person, the claim petitions were maintainable as the annual income of the victims, as shown in the claim petitions by the claimants, was Rs.36,000/- i.e. less than Rs.40,000/-. Therefore, it was the duty of the claims Tribunal to fix the amount of compensation in accordance with second schedule given in the Act, 1988, but the s.ame has not been done. 10) The claims Tribunal ha&:also not framed any issue regarding breach of c.onditions of insurance policy and whether the x\ driver was having a valid and effective driving licence on the date of accident or not. 11) It is also seen that there were two pillion riders sitting in the two wheeler, whereas only one pillion rider is permitted to sit on the motorcycle behind the rider. Section 128 of the Act, 1988 provides that no driver of a two wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the driver's seat with appropriate safety measures. Therefore, even in case the driver was having a valid and effective driving licence on the date of accident and there were two pillion riders carrjjed on the motorcycle, the insurance company would be responsible to pay compensation in respect of one pillion rider permissible under the Act. However, it would not be responsible to pay compensation in respect of other FMllion rider, who was sitting against the terms and conditions of the insurance policy, and to pay compensation to that pillion rider is the sole responsibility of the owner of the vehicle. But in case, it is found that the driver of the two wheeler in question was not having a valid and effective driving licence on the date of accident, the responsibility to pay compensation is solely of the owner of the vehicle. 12) While deciding the claim petitions, the learned Tribunal should have consideredthe law laid down by the Hon'ble Supreme Court in the matter 6f National Insurance Co. Ltd. Vs. Anjana Shyam and others reported in (2007) 7 SCC 445, that the insurance company would be compelled to deposit the higher of the amounts of compensatioh awarded to the extent of number of passengers covered by the insurance policy. However, it has not been done. 13) In view of the above facts and circum?tances of the case, we are of the opinion that the matter requires reconsideration at s^sw.v^erpm4 ^ \^^^^ the end of the Tribunal in the light of observations made above. 14) In the result, the appeals are allowed in part, the impugned awards are set aside and the matter is remitted back to the Tribunal to decide the cases afresh after giving opportunity of hearing to the parties, in the light of the observations made above, as early as possible, preferably within a period of three months fromthe date of appearance of the parties. In the interestofjustice, the Tribunal should decide both the claim cases by a common award as they arise out of the same accident. 15) Needless to mention that the parties shall be allowed to amend the pleadings, adi^uce further evidence, file documents or get the documents verified etc. and thereafter, the award shall be made afresh. 16) Parties shall appear before the Jrrbunal on 16 November, 2011. 17) LCR shall be sent back to the Tribunal without further delay. 18) No order as to costs. 19) Certified copy as per rules. Sd/- i, Di\ I.M. Quddusi | s| Judge Sd/- G- Miiiliajuddm Judge ^ . i2a