Maw» i “mam“...«wm. i aw: umm mv l Appellant 6/ Suganéhand Malviya 6km Apgm‘cant No.2) S/o Q.R.Ma1viya, fJ R/o High School Road, Jagdalpur; / Dist : Bastal—(C.G.) I 1 Versus 1 1 Resnondégs‘ w/l , Lalita v 1 ((Claimanits) £ ‘ W/o Domu, ‘ Aged about 35 years, Budhram S/o Buchand, Aged about 60 years, Raju Kumar S/o Late Domu, Aged about 22 years Ramchandra S/o Late Domu, Aged about 18 years 5, Ghasiram ‘ / S/o Late Domu, Aged about 12 years Respondent no.5 Minor through respondent no. l mother and natural guardian Lalita Wido of Late Domu Respondent no. 1 to 5 are R/o Village 3 k ‘ Jagdalpur, Dist : Bastar—(C.G.) ‘ Non—Applicant No. 1 ‘ Nilambhar Baghel S/o Ratan Baghel, R/o Hatkaohor; Jagdalpur, l ‘1} Dist : Bastar—(C.G;) 7 ‘ ‘A anwg J3 A } Shri Prafuil Bharat, Advocate for appeuant, ‘r‘xt : PPEAL UNDER SECTDN 173 OF THE MGTOR VEH‘CLBS ACT E: Han'hie rm. M Nana for respef‘adent N0. 1 to a . Shri AK Athaley, Advecate for resporideni: N0. 7. . QRM," QRDFg {Pa33ed m1 13*“ cm] a? Aprii, 2§€G§ Thi$ i$ owner’s appaa! directad agaimat the award dated 31 ,032QO4, passed by the mt Add3tionai Motm Amidem Cmnm Tribunar ,Basiar, Jagdalpur, (f0? $hart Tribune?) in daim Pagan N0. 80/02 whereby and whereiinder an amcmnf of R3 1,17,600l— hm bem‘ awarded in {avoua' of the resapnndeni N0. 1 m é heldmg the a§3pellant and r§$pandent No.6 re55pm§bie fray its payment exoneratMg the reepmdant N0. 7/ins5x.zrance mmpany fmm its: liabiEi’cy t0 pay campematian. 2. The brief fads cf the 9333a are a$ under : i. As gar thecase (if the rewondeni No, 1 m 5,, an 11‘Q92902, Damu (gimme deceaad.) met with an _ accident with Matador-4G7 beating registm‘rion NC). CG 17—H-D??2 being driven by reapmndgnt Ne, 6 and. owned by the a’ppeimm and-immed by the rawarzdaat No‘ Z and succumbed ta the ingurie$ $&.s$§ia§n&d in ‘i‘ha € V u said accident. Wesle $ K“ HIGH GOURT 9F C§IHATT§$€M%RH AT EILA$W§Q gg MA Na 517 OF 2004 Appeimm : Suganchand Maiviya “ aggiicant 2 ‘ Versus Rjesgondentg : Lalita 8: Others. h) @ H. The sia§mants filed an applicatign under $e¢?ian 166 of MV Act daiming RQ 5,60,00Q/— as compen$afi0n for the death of deceased in, the $aid ascident agamsi the appellant a$ well as. agalmt the respandent N9 B R 7.. ill. The appellant and respondent Nod 6 by flllng their written sltatement; denied the faclum Of accident. iv. The respondent No. 7/insurance mmpany did not flle its written statement. v. The Tribunal. an a eldee scrutlny of evidence led; material placed and submiesione made by the pertiee, held the reépendent No. 6 reepeneihle for the eaid accident; awarded tetel sum of RS. 1,17,6(30Lae compensation to the respondent Ne. 1, t9 5 fer the death of deceaeed in the said accident aiengwiih interest @ 9 percent per annum from the date er application tiil its payment, holding the anpellant and the respondent No. 6 jointly and eeverally reeponeibie for its payment to the claimants; exonerated the insurance company from its iiabiiity to pay compensation by holding that the deeeaeed wae gratuitoue passenger in the Matador. 3. Shri Prafuil Bharat; learned couneel appearing for the appellant would submit that as per the 'caee of thevclaimante, the deceased was pedeetrian when he wae adaehed by the offending Matador and was not gratuitous paeeenger. The evidence adduced in the case (PW-L Vaidyanath and PW—Q Raju) also proves the above fact. He further eubmite that undisputedly, FIR was not exhibited in the oaee nor any question has been “asked to the witneeeee by the reepondent No. 7. whether or not the deoeaeed was eitting in the Matador ae gratuitoue passenger at the time of aentdent Thee, the Tribunal haS failen in error in ho!ding the decea$ed git€iing in the Matatlor as a paSSenger. On the other hand, Shri AK Athaley, Earned sounz~3e§ annearéng for the respondent No. 7/in$uranc;e camgany, Slvip'perted the award and would submit that in the facts and; otmum$tance$ at the case, the Tribunat has rightty 'exnnerated the thwrance ’ company trom its liability and the award deserves to be iipheid. l have heard the counsel appearing for the appeitent; perueed r " ’the order impugned and records of court beiow. The factum of accident resutting in to death of deeeaeed is not in dispute. ‘The oniy question falls for determination of this court: is Whether the deceased was eitting in the Matador as gratuitous passenger or wee pedestrianat the time of accident. As per ciaim petition, the deceaeed wee pedestrian. Vaidyanath (PW—1) hae deposed that deceased was eedesttian and was going from Dhanpunii to Amaguda when he was dashed by the offending Metader resulting in his death. Nothing has been suggested to him by the insurance company that he' was not pedestrian but was sitting in the Medator as e gratuitous passenger. Raju (AW-2) eiso ”deposed that the deceased was pedestrian at the time at accident; FtR was not exhibited in the case. There is no materiai in the record to suggest that the deceased was sitting in the Matador as gratuitous passenger. Vide order dated 16.012003, the Tribunal has proceeded exparte against the respondent No. 7/insurance company under Order 8 Rule to of CPC. In such Situation, in the opinion of thiS newt; the. Tribunal has; fauen in error in holding the deceased as a gratuitnw passenger in the said Matador. Legal evidence adduaed and Q the materiai placed in the caee suggests that deceaeed was a pedestrian when he met with an accident with the effending Matader. in View of above, the appeal deservee to he and i3 hereby allowed. lt is held that alongwith appellant and respondent N0, r ‘6, the respondent No. 7/insurence company is eieo iotntiy and severally liable for payment of oompeneation to the reependent Na. 1 to 5 Lé. claimants. The respondent No. 7 is granted three months time to deooeit the amount of compensation before the concerned Tribunal. The amount deposited by the appellant snail be refunded. No order aeto costs. Sd/— N. K. Agarwal Judge