^~^X^J^S^^^.-^yfty-.r^^^^-f.p.isys?yyi, 1 €J'fc«, ^ V V , - ^~.-^»^ q , Ki^^^a^^-asrt^^^^^^g^^ M r. c. \- BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH .p /I AT BILASPUR M.A.fCl No.\5V,2009 niwf'H iyg^^y^^- ;255^gl? APPELLANT DEFENDANT N0.3 1. 5.^J-:$ ^•^ p&^°" ^^:£^ 'v^^ ^^A. ^ RESPONDENT N0.1 CLAIMANT N0. 1 RESPONDENT N0.2 DEFANDANTN0.1 IFFCO- TOKIO GENERAL INSURANCE COMPANY LIMITED, through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur (CG) VERSUS 1. Smt. Subhni, W/o Late Siya ram Aged about 22 years.R/o Sonetarai ,Police Station and Tahsil , Sitapur, District.- Sarguja, Currently Residing at Village - Mangari, Police Station and Tahsil Sitapur,Dist.-Sarguja(C.G.). 2. Gaurishankar @ Bunty (Driver) S/o Basant Kawar, Aged about 25 years, R/o Sonetarai ,P.S and Tahsil Sitapur,Dist.-Sarguja (C.G.). te^ RESPONDENT N0.3 DEFANDANT N0.2 RESPONDENT N0.4 DEFANDANT N0.4 Shivram Baghel @ Guddu @ Shivram Ghasia S/o Ramvrix Ram, Aged about 32 years, R/o Sonetarai ,P.S and Tahsil Sitapur, Dist.-Sarguja (C.G.). (Owner) Teju Ram, S/o Riku Ram, Aged about 52 years. R/o Sonetarai ,P.S and Tahsil Sitapur,Dist.-Sarguja (C.G.). 6-5^ ^n^^h CS1 e ( J^ Ds^o.^Q^ C^o- ^" ^=— lejii. |0<\ 5. S^A- ^vcVVN^u^^ ^6 $l)ri T^JO ^Oktv\ ft^td O^bt^^ MT ^ejo.<f,£ , ^]o ^o^<LU<'aJt f.S' ond T<^.^f»l ^l^^ ^ijL^. So.r^^o, {c^-) «J ^l E No.,,^,., [te£fl^tl^l~.'ft^;..S^v/\J(WSS£'r-.;7--^/r-.'.w'.; Miscn i ftNF"- -c &OPI:AL UNDFR SFCT10N 173 OF THE IVIOTOR VEH'^1 E ACT. 1988 \^,. ^ HIGH COURT OF CHHATTISGARH, BILASPUR DB: HON»BLBLM. QUDDUSI & HON»BLEPRA8HANT KR. MI8HRA, JJ M. A. (Cl. No. 1575 OF 2009 Vs. APPBAL UNDER SBCTION 173 OF THE MOTOR VEHICLBS ACT. 1988 APPEARANCE: Mr.Yashwaat Singh Thakur, counsel for fhe appeUaat. Mr, Maaoj Paraajpe & Mr. Vikram Dixit, counsel for respondents 4 85 5. i Per I.M. OUDDUSI^J ORDERJQRAL1 (10.01.2011) 1. This appeal has been filed by fhe Insuraace Conipaay agaia^t impugned award dated 07.03.2009 passed by fhe First Additional Motor Accident Clauns Tribunal, Ambikapur, Sm^uja (C.G) in Claim Case No.34/2006 whereby the Insuraace Company has been directed to pay the compensation to tfae.claimaiits aad recover fhe said amount froni fhe owner of fhe vehicle ia question. 2. Brief facts of fhe case as per tlie version of fhe claimaat are fhat on 07.11.2005 deceased Siyarain had gone to do labour works in fh.e Tractor of fhe owner/respondent no.S namely Shivram Ghasia. At about 7.30 p.ni. fhe deceased along-wifh others was retuming froni Saatipara BatauU to Sontarai by Tractor bearing Regn.No. 13-A/6841 & TroUey No. 13-A/6842 after unloadiag fhe bricks frora fhe said Tractor. On tiie way near Thrasher machiae at Aamroad Sitapur, rcspondent APPELLANT IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED RE8PONDBNTS Suit. Subhni and others ^^^^. • '^^^% ^•-'' .^^^i I ^—%^1 I "3ALI 1 \^y/ .-^ ^ no.2 who was driviag fhe said Tractor drove fhe vehicle rashly tato a field, due to which fhe deceased feU down froui fhe Tractor aad was rixn over by fhe rear wheel of fhe Tractor, as a result ofwhich he died on fhe spot The widow of fhe deceased beiag legal representative has inade claini to fhe tune ofRs.8,45,000/- onvarious heads. 3« The learaed Clamis Tribunal has held that ftie ofiendtag Tractor TroUey was iavolved in fhe Accident in which deceased has died; respondents 2 & 3 have breached the poMcy conditions aad fhe driver of fhe vehicle was not havmg valid aad effective driviag Ucense at fhe time of accident. It has further held fh.at respondents 4 & 5 are parents of the deceased aad they beiag legal representatives are also entitied to get coinpensation. Thus it has awarded Rs.4,64,472/- as com.pensation, which the claioiaiit as also respondents 4 & 5 are entitied to receive froni fhe appeUaat as well as respondents 2 & 3 jomtiy or severally. However, the appeUaat iasuraace Conipariy was directed to first deposit the aoiount under award and fhen recover fhe saiae froni the owner ofthe vehicle. 4. Mr. Yashwaat Siagh Thakur, learaed counsel for the appeUaat subniits fhat fhe deceased was traveUug m the vehicle m question as a labourer aad fherefore, he caiinot be treated as fhird party aad fhus, the Tribuaal has erred ia passiag fhe direction regardin.g pay and recover. 5. Qn tlie other haad, Mr. Maaoj Paranjpe, learaed counsel for counsel for respondents 4 & 5 supports fhe impugned award, ^-,'f^ 6, We have heard leamed counsel for the parties aad have also gone tlirough fhe records of fhe Tribunal as also fhe findiags giveu in. tlie unpugned award. Honl^le the Supreme Court m the matter of National Iiisurance Company Vs. Swarn Singh fis others reported ia (2004) 3 SCC 297 has held as uuder: (<107, We may however, hasten to add fhat fhe Tribunal aad fhe Court laust, however, exercise fheir jurisdiction to issue such a direction upon consideration of the facts and circunistances of each case and m the event such a direction has been issued, despite ardviag at a findiag offact to fhe effect tliat fhe iasurer has been able to estabUsh fhat the iasured has conixrdtted a breach of conti:act of issuance as envisaged under sub-clause (u) of clause (a) of sub-sectibn (2) of section 149 of fhe Act, the iasuraiice Compaiiy shatl be entiUed to reaMze tlie awarded amount from fhe owner or driver of fhe vehicle, as fhe case raay be, ia executiou of fhe saoie award haviag regard to provisions of sections 165 & 168 offtie Act. However, in ftxe event, haviag regard to fhe Ibnited scope of iaquiiy ia fhe proceedin.gs before fhe Tribunal it had not been able to do so, fhe nisuraiice corapaay inay iaitiate a separate action Uierefor agaiast fhe owner or the driver of fhe vehicle or botti, as fhe case may be. Those exceptioual cases raay arise when fhe evidence beconxes available to or coiaes to fhe notice of flie insurer at a subsequent stage or for one reason or ftie ofher, fh.e iasurer was not given aa opportunity to defend at all. Such a course of action m.ay also be resorted to when a fraud or coUusion between fhe victixn aad fhe owner of the vehicle is detected or com.es to tiie kaowledge of fhe iasurer at a later stage. '^^•::,, © 110. (x) Where on adjudication of fhe clami under fhe Act tlie Tribunal arrives at a conclusion fhat the iasurer has satisfactoiily proved its defence in accordance wifh the provisions of Section 149(2) read with sub-sectioa (7), as iaterpreted by fhis Court above, tlie Tribunal caa direct fhat fbie iasurer is Uable to be reimbursed by the iasured for tlie coinpensation aad ofher ainounts which it has been conipeUed to pay to fhe fhird party under the award of the Tribunal. Such determiaation of claim. by tlie Tribunal will be enforceable aad the nioney found due to the tasurer froin tiie iasured wUl be recoverable on a certificate issued by fhe Tribunal to fhe Collector m fhe sanie raaaner under section 174 of fhe Act as arrears of laad revenue. The certificate will be issued for the recovery as arrears of laiid revenue only if, as required by sub- section (3) of Section 163 of fhe Act fhe iasured fails to deposit fhe amount awarded ia favour of fhe iasurer withia 30 days froia fhe date of aojioiincenient of fhe award by fhe Tribunal." However, present is not tihe case offhird party, rafher it is fhe case where the deceased was engaged ia fhe said vehicle as a labour aad was aUowed to sit aad travel io. fhe vehicle and as such, his status ia fhe said vehicle was of gratuitous passenger aad as per Section 147 of the Act fhe gratuitous passengers sitting ia a goods vehicle are not required to be covered under fhe statutory poUcy. Further, the Tribunal has held that fhe owner aad driver have breached the policy conditions aad fhe driver of the vehicle was not haviag valid aiid effective driving Ucense. Therefore, the impugned award ofthe Tribiinal dircctiag the Insuraace Conipany to first pay fhe conipensation to claimaats aiid thereafter recover froia the owner, is erroneous. ;-:^^?^. 8. In the result, we aUow tliis appeal, set aside fhe impugned award dated 07.03.2009 passed by the Tribunal ia Claim case No. 34/2006 so far as it relates to fasteniag ofliabUity on fhe appeUaat-Insiiraace Coinpao.y and hold that the Appellant Insurance CoinpaD.y is not Uable to pay coinpensation to fhe clamiants and fhe same shall be paid by ttie owner of fhe vehicle ia question. In case aay amoiuit deposited by fhie appeUant Insuraace Coinpaay has been witih-drawn by fhe claimaats, it wIU be open for it to recover tih-e same froin fhe owner of fhe vehicle, However, tf tlie amount, so deposited, has not beeu wifhdrawn so far, the Insurance Conipaay shaUL be aUowed to wifhdraw fhe saaie. Rest of fhe conditions and findings of fhe impugned award are hereby confirmed, It is raade clear titiat fhe clamiant is entiUed to execute the award against fhe owner of fhe veliicle. No order as to costs. _ Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Rao