IN THE HON'BLE HIGH COURT OF CHHATTISGARH .^ ./ AT BILASPUR M.A.(C)NO. \Q:^\ / 2Q08 (S.B.) APPELLANT ..%..•• (Insurer) .^^ ^lf^ .•* ^ Versus RESPONDENTS (No. 1 to 3 are Claimants) ^: It L3- ^^ The New India Assurance Co.Ltd., Sattigudi Chowk Raigarh, Tahsil & Distt. Raigarh-(C.G.) ^- Smt. Jamuna Bai, Wd/o Late Ghasiram @ Sitaram Kewat, Aged about 22 Years, Occupation House Wife, R/o Village Bundeli, Post Office - Begachi, P.S. - Baramkela, Tahsil - Sarangarh, Distt. Raigarh-(C.G.) Narayan Nishad S/o Parnu Nishad, Aged about 60 years, Occupation - Labour Naipuro Bai, W/o Narayan Nishad, Aged about 55 years Occupation - Labour Respondent no.2 & 3 are R/o Village Bundeli, P.S. & Tahsil - Sarangarh, Distt. Raigarh-(C.G^- '^t\V - Driver Owner Ex-Owner < e, Padumlal Patel, S/o Valmiki Patel, Aged about 24 years, Occupation - Driver, R/o Pradhanpur, P.S. Baremkela, Tahsil - Sarangarh, Distt. Raigarh- (C.G.). Ravindra Kumar Dansena, S/o Kedarnath Dansena, Aged about 21 years, Occupation - Vehicle Owner, R/o Village Bundeli, P.S. - Baremkela, Tahsil - Sarangarh, Distt. Raigarh-(C.G.) Mussamad Leelawati, Wd/o Govind Ram, R/o Achanakpali, Tahsil Sarangarh, Distt. Raigarh- (C.G.) MISC. APPEAL U/S 173 OF THE MOTOR^EHICLES ACT 1988 ^ ^ '^^i:^/ ^s^ K.9 ^ OF AT M.A.(ciNo.1071 OF 2008 AppeSSant Insurer Vs Resoondents (No. 1 to 3 are c!almants) The New Co. Ltd. Raigarh Smt. Jamuna Bal and Present: Mr. Raj Awasthi, counse! for the company. IVIr. Vipin Pursjabi, counsel for respondents No. 1 to 3/claimants. Mr. PK Tulsyan, counsel for respondent No. 4 & 5. G. J (OraS) (3rd August, 2011) l. This has fited by the appeljant/lnsurance company under Section 173 of the Motor Vehicies Act, 1988 the award dated 9h May, 2008 passed by the Addltlonai Motor Accident Cialms Tribunal, Sarangarh, Distt. Raigarh (in short "the Tribunaj") In C!ajm Case No. 35/06, fastening liabjjjty to pay the compensation on the appetiant/insurance company jointly and severaiiy aiong vvith driver and owner. 2. Brief of the are that on 6.4.2005 at about 12 in the Ghasiram going to from VIISage : for bringing earth for some w/ork by tractor No. CG 13/ZC 2211 to No.5. At that time, the said tractor on of driven by No.4 in a rash and negiigent met wlth an resulting in grievous injuries to over his head an-d Siis instantaneous death. At the time, the said vehicie was insured with the appeij-ant/insurance company. 3. At the time of the was a healthy rnan of 25 and was Rs.2100/- per month. With the aforesaid the ciajmants i.e. wlfe and parents of the his fjied a claim petition under Section 220(1) of the Act, 1988 (in short "the Act, 1988") for a total cornpensation of Rs.12,94,000/-- -^^ i "I< s 4. However, iearned Tribunal ciose scrutiny of the evidence ied by the partles before it, awarded a total compensation of Rs.2,34,000/- under different heads, fastenlng the liabElity upon the appeiiant/jnsurance cornpany, jointly and severalSy, with the driver and the owner. 5. Heard iearned counsei for the parties, perused the iower Court record (LCR) as weti as the impugned award. 6. Contention of iearned counsei for the appeiianVinsurance company is that the at the time of accident was sltting in the tractor, which has no capacity, except that for the driver. Thus, on account of breach of conditions of the insurance poStey, the appeilant/insurance company is not iiabie to indemnify the owner. In to this, iearned counsei has ateo contended that at the reievant point of time, driver of the tr-actor was not an and vaiid drjving iicence he on!y a iearner's iicence. 7. Reliance has piaced upon the judgments in the of Co.Ltd. Vs. and TAC 165 (MP) and order dated 15th Ocfober, 2008 of this Court in MA of m the of Co. Ltd. Vs. 8. The fact that the driver was having only a iearner's drivlng has by counsei for the respondents/ovv'ner and driver. 9. for the No. 4 & 5/driver & owner has that in the poitoy by the appeliant/'insurance cornpany, there is coverage for one employee and hence, the company cannot liabi!ity. 10. Reiiance has on the judgment in the of antf v's. @ anctf 2008 (3) 413 (DB). ll.Leamed counsel for respondents No. 1 to has aiso that was by the potlcy and the insurance to pay '^ l-ii'i 1 ^ .-^" (T^) 12. It is not In that at the tirne of the 'was in the and the was by No.4. There is no for any in the tractor, other than the driver. Ivloreover, 11 is an positjon that the driver i.e. No.4 was not having a vafid and effective driving on of and he was, in fact, possessing only a 13. !n vi'ew of this, by any stretoh of imagjnation, jt cannot be said that the deceased, who, at the retevant point of time, was sitting in the tractor, was covered by the insurance poiicy, and as such, the insurance company cannot be hejd iiabfe to pay the compensation. 14. ln the resuit, the appeai is aiiowed. The impugned award, insofar as it reiates to fastening of iiabiiity upon the appellant/insurance company, is hereby set The owner and the driver i.e. respondents No. 4 & 5 are held tiable to pay the amount of compensation to the claimants. In case, the appeiiant/insurance company has already deposited the amount of compensation, the shaji be refunded to it. Ef the amount so has aiready been disbursed to the cfaimants, then the appellant/insurance company shail be entitied to recoverthe frorn the owner. i- 15. No order as to costs. ' Sd/- G. Minhajuddin Judge ^