IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR r, c~ MISC.APPEAL FC1 N0. V; TM/2009 MISC. APPEAL UNDER SECTION 173 OF THE MOTOR ^^fEHICLES ACT. 1988 APPELLANT INSURER \:e^ ^Jhe New India Assurance Company '\''r<i°t"^V^l!'<^"umited, through - Divisional Manager ^!^ •<\Vn('/l ....-"; <^'( ^.-•".^^\^ ^-!^^ ^y t,«-1 ^ >»''• the New India Assurance Company Limited, Bilaspur, 2nd Floor, Rama Trade Centre, Opposite- Rajeev Plaza, Bus Stand, Bilaspur [C.G.]. VERSUS RE^PONDENTS :- 1< :laimants WNER ^ ^ ? Parasram Yadav Yadav S/o Late Fatturam Yadav Aged about 50 years Smt. Budhabai Yadav W/o Shri Parasram Yadav, Aged about 45 Years Kumari RajkumariD/o Shri Parasram Yadav, aged about 18 Years Respondent No. 1 to 3 R/0 Village- Maasul, P.S. Dhumka, District Rajnandgaon (Chhattisgarh) Gauratan Damale S/o Shri Jaimal ^ Damale I, Aged about 30 years, R/o ^' Stationpara, Below Over-Bridge District Rajnandgaon (Chhattisgarh) ^- CLAIM IN APPEAL VALUED AT RS. 1.6B.800/- ^f-r^ /_J_ 'lp^. ft ;>','-'—^, '^ ff 1 HIGH COURT OF CHHATTISGARH, BILASPUR Misc. Anoeal (Ct No. 873 of 2009 APPELLANT Insurer The New India Insurance Company Limited RESPONDENTS Clainiants Versus Chintaram Yadav and others Misc. AppealJC) No. 87^_o! 2009 APPELLANT Insurer The New India Insurance Company Limited Versus RESPONDEKTS Claimants Parasram Yadav and others AWARD Post for pronouncement of Award 1*7 -10-2011 Sd/- N.K. Agrawal Judge \jl» '^;'-, .'^'. . ""'th^ '^ :,'. ' ' ^ ; ^-"•'^?"^. •V1' u' •-?/ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT Insurer Misc. Appeal (C) No. 873 of 2009 The New India Insurance Company Limited RESPONDENTS Claimants Versus Chintaram Yadav and others. APPELLANT Insurer Misc. Appeal (C) No. 874 of2009 The New India Insurance Company Limited RESPONDENTS Claimants Versus Parasram Yadav and others. APPEAL UNDERS^ECTIQN 173 OF THE MOTOR VEHICLES ACT. 1988 SB: Hon'ble Shri Justice N. K. Agarwal. Present : Shri Sourabh Sharma, Advocate for the appellant. Shri Basant Dewangan, Advocate for the owner - Guaratan Damale (respondent No.7 in MAC No.873/2009 and respondent No.4 in MAC No. 874/2009). AWARD (Passedon (7 .10.201ti) 1. The appellant herein is insurer of motor cycle Bajaj KB4S Champion bearing registration No. C.G.07 ZM/5996. 2. On 07.09.2006, Ramsukh Yadav and Santosh Yadav were going to village Somni by the above motor cycle, owned by Gauratan Damale and insured by the appellant. Ramsukh A .^-r? Yadav was driving the motor cycle whereas Santosh Yadav was sitting as pillion rider. While returning from village Somni, motor cycle was dashed by some unknown Sumo, as a resutt of which, Santosh Yadav died on the spot and Ramsukh Yadav died in the Government Hospital, Rajnandgaon during his treatment. In claim case No.4/2009, the unfortunate parents, younger brother and sister of deceased - Santosh Yadav claimed Rs. 14,43,0007- as compensation by filing claim petition under Section 163A of the Motor Vehicles Act, 1988 (for short 'the Act') before the Additional Motor Accidents Claims Tribunal (F.T.C.), Rajnandgaon for his death due to motor accident on 07.09.2006. In claim case No.5/2009, the unfortunate parents and younger sister of deceased - Ramsukh Yadav claimed Rs.6,05,000/- as compensation by filing claim petition under Section 163A of the Act for his death in the motor accident on 07.09.2006. The Tribunal, on a close scrutiny of evidence led, held: motor cycle in question was involved in the said accident; Santosh Yadav and Ramsukh Yadav died on account of injuries sustained by them in the said accident; appellanVthe New India Insurance Company Limited liable for payment of compensation as it could not establish violation of policy conditions; under Section 163A of the .J- u^\ 8. Act, claimants are not required to prove negligence on the part of the driver of the vehicle; claim petitions preferred under Section 163A of the Act are maintainable and awarded Rs.1,63,800/- in claim case No.4/2009 and Rs.1,60,800/- in claim case No. 5/2009 along with interest at the rate of 6% per annum from the date of applications and if not paid within a period of two months, then along with interest @ 8% per annum. Feeling aggrieved and dissatisfied with the above award, both the appeals i.e. M.A.C. No.873/2009 and M.A.C.No.874/2004 have been preferred by the insurer of the motor cycle in question. Since both the appeals arise out of same accident involving common question of laws and facts, are being disposed of by this common order. Shri Sourabh Sharma, learned counsel appearing for the appellant, placing reliance upon the judgments in the cases of Ningamma and another vs. United India Insurance Company Limited, (2009) 13 SCC 710 and Oriental Insurance Company Limited vs. Sudhakaran K.V. and others, AIR 2008 SCW 4549, would submit: policy of insurance was an act policy and the risk that is covered only is in respect of persons contemplated under Section 147 of the Motor Vehicles Act. The deceased was not owner of the motorcycle in question. He borrowed the v\l 9. motorcycle from its real owner. The deceased cannot be held to be an employee of the owner of the motorcycle although he was authorised to drive the said motor cycle by its owner and, therefore, he would step into shoes of the owner of the motorcycle and legal representatives of deceased - Ramsukh Yadav could not have maintained a claim petition in terms of Section 163A of the Act. It was further contended that the policy being act only policy, risk of deceased - Santosh Yadav i.e. pillion rider was also not covered under the policy and the Tribunal has wrongly fastened the liability of payment of compensation upon the appellant/insurance companyin both the cases. It was further contended that the Tribuna!, without following the procedure prescribed under Rule 237 of M.P. / C. G. Motor Vehicles Rules, 1994, required to be followed in connected cases, has recorded the appellant's evidence in one case only without certifying that it will also apply to the other case. The above procedural lapse on the part of the Tribunal goes to the root of the matter and the matter may be remitted to the Tribunal for deciding the case afresh. On the other hand, Shri Basant Dewangan, learned counsel appearing for the owner - Gauratan Damate supported the award impugned. u £ 10. I have heard the learned counsel for the parties and also perused the record of the Tribunal including the award impugned. 11. Indisputably, no order has been passed by the Tribunal under Rule 237 of the M.P. / C.G. Motor Vehicles Rules that the evidence recorded in one claim case will also apply to the other case. In such drcumstances, the evidence adduced by the appellant in one case cannot be read in other case. This procedural illegality goes to the root of the matter. 12. Further, the Tribunal has not considered the case of the appellant in the light ofjudgments of the Supreme Court in the cases of Ningamma and another vs. United India Insurance Company Limited, (2009) 13 SCC 710 and Oriental Insurance Company Limited vs. Sudhakaran K.V. and others, AIR 2008 SCW 4549 cited and relied upon by the appellant. 13. Considering the above aspect of the matter, without entering into merits of the case, this Court is of the opinion that a case for remitting the matter back to the Tribunal is made out. 14. In view of above, the awards impugned being not sustainable in law, deserve to be and are hereby set aside. The matter is remitted back to the Tribunal for deciding the claim petition filed by the claimants afresh. 15. Needless to mention that the Tribunal shall provide proper and sufficient opportunity to both the parties to adduce evidence and to file additional documents, if any. 16. The records of the Tribunal be sent back foriihwith. Parties are directed to appear before the concerned Tribunal on 21.11.2011. 17. No order as to costs. Sd/- N.K. Agrawal Judge