^ B^^crB IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C)No.- -743 /2011 APPELLANT ORIENTAL INSUJRANCE COMPANY LIMITED, THROUGH - BRANCH MANAGER, BRANCH OFFICE, BEHIND THE AMAR TALKIES DHAMTARI, TEHSIL & DISTRICT - DHAMTARI (C.G.) Vrs. RESPONDENTS/CLAIMANTS:- ^N°-/.i. ^y'Sh;"B^ ~'^"n- 13-r'fr^H^ 1. SMT. TARA BAI W/0 LATE PUSAURAM DEWANGAN, AGE 35 YRS., 2. KU. YUTTI D/0 LATE PUSAURAM DEWANGAN, AGE 07 YRS., 3, LOKESH KUMAR S/0 LATE PUSAURAM DEWANGAN, AGE 17 YRS., 4. MEHATTARIN BAI W/0 LATE MANRAKHAN DEWANGAN, AGE 60 YRS. RESPONDENT N0. 02 & 03 MINOR THROUGH.GUARDIAN MOTHER SMT. TARA BAI W/0 LATE PUSAURAM DEWANGAN, ALL RESIDENT .- JALAMPUR WARD DHAMTARI TEHSIL & DISTRICT DHAMTARI (C.G.) 5. SANJAY KUMAR DEWANGAN S/0 BHARAT LALAGE 28 YRS., 6; BHARAT LAL DEWANGAN S/0 DEVLAL DEWANGAN AGE 50 YRS., •RESPONDENT N0. 05 & 06 RESIDENT - JALAMPUR WARD DHAMTARI TEHSIL & DISTRICT DHAMTARI (C.G.) APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: HON'BLE MR. G. MINHAJUDDIN. J M.A.(C)No.7490F2011 Appellant Oriental Insurance Company Limited, Dhamtari (CG) Respondents Claimants Vs Smt. Tara Bai and others POST FOR ORDER ON 1 ^ DECEIVIBER. 2011 Sd/- G. Minhajuddin Judge •^- 4:^1j ^.'fe^ "^-••.-^^^wsl- HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: HON'BLE MR. G. MINHAJUDDIN. J. Appellant Respondents Claimants M.A.(ClNo.7490F2011 Oriental Insurance Company Limited, Vs Dhamtari (CG) Smt. Tara Bai andothers Present: Mr. Sudhir Agrawal, counsel forthe appellant/insurance company. Mr. Sanjeev Banjare, counsel for respondents No.1 to 4. Mr. Sunil Sahu, counsel for respondents No. 5 & 6. ORDER (Passed on \ ^ December, 2011) 1. This appeal has been filed by the appellant/insurance company under Section 173 of the Motor Vehicles Act, 1988 against the award dated 1st March, 2011 passed by the Chief Motor Accident Claims Tribunal, Dhamtari, (in short "the'Tribunal") in Claim Case No. 148/2009, fastening liability upon the appellant/insurance company, jointly and severally, along with driver and owner, to pay the amount of compensation to respondents No. 1 to 4/claimants. 2. Brief facts of the case, as per averments made in the claim petition, are that on 25.8.2009 Pusauram Dewangan alongwith respondent No.6 was coming back to Dhamtari from Karhibhadar after selling cloths by jeep bearing registration No. CG-07/ZD/6856, which was driven by respondent No.5. However, due to rash and negligent driving by respondent No.5, the said vehicle dashed against the divider near Tikrapara Ward at National Highway No.43 and turned turtle. On account of the said accident, Pusauram Dewangan sustained grievous injuries and succumbed to the same while being taken to hospital by the eyewitnesses. ^M -'^ '^ %»"-' ,.^:';" ^' ^ 3. At the time of accident, the deceased was 42 years of age and was earning Rs.100/- per day by doing the business of selling and cutting cloths. Therefore, the claimants, who are widow, children and mother of the deceased, being his legal heirs filed a claim petition before the Tribunal under Section 166 ofthe Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs. 10,44,0007- against the death of Pusauram Dewangan, under various heads. 4/However, learned Tribunal, after hearing counsel for the respective parties and after close scrutiny of the evidence led before it, by the impugned award granted a total compensation of Rs.2,92,000/- in favour of the claimants, fastening the liability to pay compensation upon the appellant/insurance company, j.pintly and severally, along with respondents No. 5 & 6/driver and owner of the vehicle. 5. Heard learned counsel for the respective parties, perused the LCR as also the impugned award. 6. Contention of learned counsel for the appellant/insurance company is that the deceased, at the time of accident, was an occupant of the vehicle in question and therefore, he does not come within the ambit and purview of 3 party. He has further contended that as the insurance policy was an Act Policy and liability of the insurance company with regard to occupants was limited to Rs. 1 lac, therefore, the liability, if any, of the appellant/insurance company, is limited to Rs. 1 lac only. 7. He has also contended that the insurance company is not liable to indemnify the owner/insured of the vehicle i.e. respondent No.6, as ,^ :l^^^^^ 1 •^.- Kt there has been breach of terms and conditions of the insurance policy because the vehicle was being driven, at the relevant point of time, as a taxi and respondent No.S/driver was not having a valid and effective driving licence on the date of accident. 8. On the contrary, learned counsel for respondents No. 1 to 4/claimants has contended that every person, other than the insurer and the insured, is a 3 party and therefore, even though the deceased was an occupant of the vehicle, he comes within the category of 3 party and as such, the liability of the appellanV insurance company is unlimited and the same has rightly been fastened upon it. Further, there has been no breach of terms and conditions of the insurance policy as the deceased was employee of the owner/insured/respondent No.6 and.he was traveling in the vehicle owned by the insured as his employee alongwith bundles of cloths of the owner and respondent No.S/driver was possessing a valid and effective driving licence to drive LMV private car. 9. So far as breach of terms and conditions of the insurance policy is concerned, from the evidence adduced before the Tribunal, the appellanVinsurance company has not been successful in proving the same and therefore, the objection in this regard cannot be sustained. 10.So far as the extent of liability ofthe appellant/insurance company is concerned, from perusal of the insurance policy, it is clear that the policy was an Act Policy and in addition to that, premium @ Rs.50/- per person, for 9 persons, have been paid for the occupants of the vehicle, having personal accident coverage up to Rs. 1 lac in respect of each person. Contention of learned counsel for ..c^ ,&1.:^.. 1 ^vy^ '. "^i:.'-..^^. .-.,-'•., •,, l.-'/ respondents No. 1 to 4/claimants in respect of the fact that the occupants of the vehicle also come under the category of 3 party cannot be accepted in view ofthe settled legal position. 11. As such, taking into consideration the fact that the policy was an Act Policy, the liability of the insurance company is unlimited only in respect of 3rd party and not in respect of occupants of the vehicle, there was personal accident coverage of Rs. 1 lac for each occupant of the vehicle, 1 am of the opinion that for the death of Pusauram Dewangan, the liability of the appellant/insurance company is not unlimited, but is limited to the extent of Rs. 1 lac only and the claims Tribunal has committed a manifest error of law in arriving at a conclusion that the deceased occupant was also 3rd party and therefore, the liability of the appellanVinsurance company in respect ofthe deceased was unlimited. 12. So far as the quantum part of the impugned award is concerned, the claims Tribunal has awarded a total amount of Rs.2,92,000/- with interest @ 6% p.a. from the date of presentation of the claim petition till its realization. Looking to the age of the deceased on the date of accident, his monthly income, the number of dependents and their loss of dependency, the awarded amount of Rs.2,92,000/- is just and proper and no interference is called for in this regard. Therefore, it is held that the appellanVinsurance company shall be liable to the extent of Rs.1 lac with interest thereon @ 6% p.a. and for the remaining amount of the award, the driver & owner i.e. respondents No. 5 & 6, shall be, jointly and severally, liable. 13.In the result, the appeal is allowed in part and the impugned award is modified to the extent that the appellanVinsurance company shall /'^^:'-1 ^A'^M-^, :' ^ be liable to pay Rs. 1 lac as compensation alongwith interest @ 6% per annum from the date of filing of the claim petition till its realization. However, the remaining amount of the impugned award shall be paid by the driver & owner i.e. respondents No. 5 & 6, jointly and severally, alongwith interest @ 6% p.a. from the date of filing of claim petition till its payment is made. Rest of the conditions regarding apportionment of the compensation amount as well as cost of the suit shall remain intact. The appellant/insurance company shall be entitled to refund of the excess amount, if not already disbursed. However, if the excess amount has been disbursed, the appellant/insurance company shall be free to recover the same from the owner & driver. 14.Certified copy as per rules. Sd/- G. Minhajuddin Judge