.(S> IN THE HIGH COURT OF AT BILASPUR CHHATTISGARH M.A.f C ) N0. ^^^ I 2007_(D.B.) APPELLANT ^INSURER) ' Ltd., VERSUS ^' RESPONDENTS : ^l. (CLAIMANTS /' sy^ ^ws ft^i^.ftd' 'i'ri'^:. ~^\^. ^^••^-" .A- 4, ^y <^4> ^•'~,'. ^ ^^^ Q^-s,'t7 6. ^ ^<^ -^"^ ^ ) 7. Divisional Manager National Insurance Company Divisional Ofice, Akash Ganga Complex, Supela Bhilai, Tehsil & Dist : Durg-(C.G-) \ Smt. Jhallar Bai Wd/o Jait Ram Sahu, Aged about 34 years Madanlal S/o Jait Ram Sahu, Aged about 19 years, Ramesh Kumar S/o Jait Ram Sahu, Aged about 17 years, Ku.Kuleshwari D/o Jait.Ram Sahu, Aged about 12 years Ashwani Kumar S/o Jait Ram Sahu, Aged about 8 years, Raju Lal S/o Jait Ram Sahu, Aged about 5 years, Dagarlal S/o Jait Ram Sahu, Aged about 1 V2 years Respondents 3 to 7 are minors through natural guardian mother Jhallar Bai Wd/o Jait Ram S,ahu,<^- R/o Village - Bundelo, Tehsil - Saja, P.S. - Dhamdha, Dist : Durg-(C.G.) •:"'G (DRIVER),s 0 ^- f?C>-' .,,,^€^^' •^-/L' ^\il^ fj^' ^ p n'ih 'r^' (OWNER) f@~4: ^ (2) Tikam S/o Ramadhar, Caste- Kewat (Nishad), Aged about 28 years, Occupation - Driver, R/o Village - Ramo, P.S.-Dhamdha, Tehsil - Saja, Dist : Durg-(C.G.) (Driver ofVehicle Swaraj Majda No.C.G.-07C-0962) , Smt.Tara Jain, Wd/o Loonkaran Jain, R/o Village - Gadadoah, Tehsil - Saja, P.S. - Dhamdha, Dist : Durg-(C.G.) (Owner of Vehicle Swaraj Majda No.C.G.07 C-0962). Rajendra Yadav S/o Vijay Yadav, Aged about 40 years, R/o Village - Gadadoah, P.S. - Dhamdha, Dist : Durg-(C.G.). MISC. APPEAL U/S 173 OF THE MOTOR VEHICLES ACT 1988 "t' 'it. ^ •^s^^- @ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri I. M. Quddusi, & Hon»bleShri G. Minhajuddin, JJ. APPELLANT RESPONDENTS M. A. (Cl No. 927 of 2007 Divisional Manager, National Insurance Company Ltd. Versus Madanlal and others (Smt. Jhallar Bai - deleted) Shri Raj Awasthy, counsel for the appellant. Smt. Renu Kocher, counsel for the respondent No.4. Smt. Sudha Aganval, counsel for the respondent No. 5 & 10. None for the other respondents. M. A. (Cl No. 928 of 2007 APPELLANT Divisional Manager, National Insurance Company Ltd. Versus RESPONDENTS Chameli Bai and others. .Shri Raj Awasthy, counsel for the appellant, Smt. Renu Kocher, counsel for the respondent No. 4. Smt. Sudha Aganval, counsel for respondent No. 5. None for the other respondents. A AND APPELLANT M. A. (Cl No. 276 of 2008 National Insurance Company Ltd. Versus RESPONDENTS Baratu and others. Shri Raj Awasthy, counsel for the appellant. Shri B. P. Singh, counsel for respondents No. 1 & 2. Smt. Renu Kocher, counsel for the respondent No. 4. None for the other respondents. O RD E R (Orall (Passed on this 1st day ofJuly, 2011) Per I. M. Quddusi, J. The aforementioned three appeals (M. A. (C) Nos. 927/2007, 928/2007 and 276/2008) are being decided by this common order as they arise from one and the same accident occurred on 6.4.2005 by the vehicle ~ Swaraj Mazda, bearing registration No. C.G. 07-C/0962. The facts in brief are that on 6.4.2005 Jaitram, Kejuram and Bhagwat Nishad were returning from Jamul to village Bundeli by the vehicle, bearing registration No. C.G. 07-C/0962. On the way, near village Basin due to rash and negligent driving of the driver ( Tikam), the vehicle turned turtle. As a result of the accident Jaitram, Kejuram andBhagwat Nishad, who were occupants of the vehicle, died on the spot. The offence relating to the accident was registered in the police station Jamul at Crime No. 98/2005 under Sections 279, 337 and 304(A) of the Indian Penal Code. The vehicle was owned by the non-applicant No. 2 (Smt. Tara Jain) and it was insured by the non-applicant No.3 (The National Insurance Company Ltd.). The legal heirs of Jaitram filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 70,40,000/-. Learned Claims Tribunal by award dated 13.4.2007, passed in Claim Case No. 36/2006 ( Smt. Jhallar Bai 8& others Vs. Tikam 85 others) (M. A. (C) No. 927/2007 - Divisional Manager Nafional Insurance Company Ltd. Vs. Madanlal 85 others) awarded a sum of Rs. 4,89,000/- as compensation, holding the Insurance Company (non-applicants No.l to 3) as liable to pay the ^mount of compensation. /' /y"- ^ 8. The legal heirs of Kejuram filed a claim petition under Section 166 of the Motor Vehicles Acf, 1988 for award of a total compensation of Rs. 44,00,000/-. Learned Claims Tribunal by award dated 13.4.2007, passed in Claim Case No. 37/2006 (Chameli Bai & others Vs. Tikam 8& others) (M. A. (C) No. 928/2007 - Divisional Manager National Insurance Company Ltd. Vs. Chameli Bai & others) awarded a sum of Rs. 5,65,000/- as compensation, holding the Insurance Company (non-applicants No.l to 3) as liable to pay the .amount of conipensation. The legal heirs of Bhagwat Nishad filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of compensation. Learned Claims Tribunal by award dated 22.6.2007, passed in Claim Case No. 225/2005 (Baratu 85 others Vs. Tikam & others) (M. A. (C) No. 276/2008 - National Insurance Company Limited Vs. Baratu & others) awarded a sum of Rs. 3,83,500/- as compensation, holding the Insurance Company (non-applicants No.l to 3) as liable to pay the amount of compensation. Since all the parties have been ser^ed except the driver (Tikam), who is not a necessary party, therefore his appearance is dispensed with. We have heard learned counsel appearing for the parties and perused the lower Court records available in all the three appeals and found that the vehicle in question was Swaraj Mazda and the insurance policy was 'Goods Carrying Commercial Vehicle(Open) Policy & Package'. The deceased were travelling therein as gratuitous passengers. There was no seating oapacity in the vehicle and the deceased were sitting on the open side of the vehicle called as 'dala' (^7c77) and thus there was breach of the policy condition^and hence ^ . ^ the Insurance Company could not have been held as liable to pay the ~? Thakur amount of compensations awarded in the afore-stated three claim petitions. 9. In view of the foregoing, we allow all the three appeals and exonerate the insurance company from its liability to pay the amount of compensations. However, it will be open to the claimants to realize the amount of compensations from the owner of the vehicle. No order as to costs. 10. If any amount has already been deposited the same shall be refunded to the Insurance Company and if already paid to the claimants then it would be for the appellant Insurance Company to realize the same from the owner of the vehicle. ~~—~ ~ Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge '^^