ll<~~»X-a?-'. ^•-&! r Tp-^, ~!'ES'^-^.»^. ,?•)' •^t-fS, i ,! IN THEHIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH MIS.ELLANEOUS APPEAL (C) N0. - S ^ \ OF 2()11[||^|§|| (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) APPELLANTS CJiAlMANTS f .^v^/^ / sv / / RESPONDENTS NON-CLAIMANTS Smt. Kuleshar Bai Verma, W/o Late Jawahar Lal Verma, aged about 42 years, Ku. Durga Verma, D/o Late Jawahar Lal Venna, aged about 14 years, [Appellant No. 2 being minor on behalf of through her legal guaidian mother appellant No. 1 Smt. Kuleshar Bai Venna] Both U/o- Village - Tor, Post Office - Barbanda, Police Station - Dharsiwa, District - Raipur (C.G.) VERSUS Smt. Sumitra Bai Verma, W/o- Poshan Lal Verma, R/o- Village- Tor, Post Office -Barbanda, Police Station - Dharsiwa, District - Raipur (C.G.) [Registered Owaer of vehicle Motor Cycle bearmg registration No. C.G. 04- CU/1476 ] The Reliance General Insurance Company Limited, through Manager, Branch Office, Shop No. 412/413, 4th Floor, Ravi Bhawan, Jaistambh Chowk, Raipur, Tahsil & District - Raipur (C.G.) [Insurer of vehicle Motor Cycle bearing registration No. C.G. 04- CU/1476 ] MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTORVEmCLES ACT, 1988 -fs"" HIGH COURT OF CHHATTISGARH. BILASPUR DB: HON'BLE I. M. QUDDUSI & HON'BLE G. MINHAJUDDIN, JJ M.A(C| No. 591 OF 2011 APPELLANTS RESPONDENTS Sint. Kuleshar Bai Verma & aaother Vs. Sxat. Sumitea Bai Venaa & another MISCELLANBOUS APPEALUNDER SBCTION 173 OF THE MOTOR VEHICLES ACT. 1988 Preseat: Mr. Shwendu Paadya, counsel for fhe appeUants. Mr. Saurabh Shanna, cotuisel for respondent no.2. ORAL ORDER (21.11.2011) Per I.M. QUDDUSI. J. I. Heard on I.A.No. 1/2011, This appeal has been filed at a belated stage. Therefore, appUcation for condonation of delay has been filed. However, since the coiuiected appeal i.e., M.A(C). No. 143/2011 has been remaaded to fhe Tribuiial concemed by order dated 22.3.2011 and having heard learaed counsel fo:r the parties, we are of the opiaion that while condoniug the delay, this appeal inay also be reinitted back. Therefore, fhe delay ia filtug fhe appeal is condoned. -c This appeal has been filed by fhe clauaants ^auist fhe impugned award dated 29.8.2008 passed by VII Addl. Motor Accident Clauas Tribuaal Raipur (C.G) in Claim Case No. 15/2008, dismissiag fhe claim petition filed by the claimants. 3. 5. Brief facts of the case as per the version of fhe claiinants are fhat on 09.11.2007 at about 11 p.ru. ia fhe night, deceased Jawharlal Venna was driviag his inotorcycle beanag Regn.No.C.G.04-CU/1476 slowly aad steadily. His two sons aamely Poshan Lat Venna and Jitendra Venna were the piUion riders. They were conung fi-oia village Tor to Saddu. At about 11.00 p.ni. iu fhe ir^ht, his vehicle was slipped and they fell down, due to which fhey sustamed grievous injuries. At fliat time, one iinknown vehicle dashed the inotorcycle aad Qed fi-om. fhe scene as a result ofwhich aU the three persons died, The inatter was reported to poUce station Pandri, Raipur. Non- appUcant no.l was fhe owaer aad non-appUcant no.2 was fhe iasurer offhe vehicle. At the tune ofaccident, fhe deceased was aged about 43 years, he was working as driver and was eaming Rs.40,000/- per annuin. The claimaats beiag dependents/legal representatives have ffled Claim Petition u/s 166 ofthe Motor Vehicles Act for the award of a total coinpeusation of Rs. 4,97,000/- on various heads. Leamed Clauns Tribunal has held that the niotorcycle of fhe deceased was dashed by an unknowD. Truck, as a result of which he died, but the claiiuauts are not entitled to receive any coiupensation froiu non-applicaats and the claim. petition is not inaintauiable. . •f'" EarUer M.A.C.No. 143/2011 has been ffled agaiust the itnpugned award dated 02.11.2010 passed by the Xth MACT, Raipur iu Claim Case No.55/2010 whereby fhe claim regardia^ deafh of piUion riders was rejected. The said appeal was ($) disposed of bv fhis Court vide order dated 22.3.2011 wherin fhis Court has observed in paras 3 & 4- as under: (3) The deceased was pillion rider. Under the instructions of Insurcmce Regulatory and Development Authority (IRDA), the risk of piWion rider is covered if the policy is package policy whzch is also oalled comprehensive policy. (4) Since the policy is rwt available on record, we are of the opinioi^ ihai before disnussing the award the Clcdms Tribunal shauld have conducted an enquiry as pTovided in Section 168 cmd 169 ofMotor Vehides Act and Rule 226 ofC.G. Motor VehicSes Rufes, 2994, but that has not been done, therefore, the matter requires reconsideration at the end ofthe Tribunal. ° 6. The principle is fhat fhe iasurance coinpauy should pay whichever is higher amouiit of coinpensation of various awards, and the lesser pa5rm.ent would be fhe liability of the owner as two piUion riders died ia the same accident and uader fhe law, one was perraissible and therefore for fhe second piUiou rider flie insurance coinuanv cannot be held Uable. However, here is fhe question of negligence ia driviag. If the Tribunal does not come to fhe conclusion fhat there was aav negUgence on the part of the driver of the two wheelers in fhat case, iffhere were two piUion riders it cannot be said that there was auy negl^ence aad t&erefore, fhe principle laid down ia -<s''~ JVatfonaI Jnsuruncc Compcuig Iriniifed -ws- An^eina Shgeun and others (2007) 7 SCC 445, is appUcable. In fhat case, Hon'ble the Apex Court has laid down fhe prmciple that the higheram.oi.mt of conipensa.tion should have been paid by fhe Insurance Coinpaay aad reiaaining persons liabilily was of the owner aud in case of deafh of owner their lesal representatives. In fhe said case, Honlale the Apex Court has ixi sum. and substance held vide Paras 20 Ss 21 that in spite of the relevaut provisions of the statute, iasuraace stiB reiuaias a contract between fhe owner and the iasiirer aad the parties are goverued by the terms oftheir contract. The iasured is covered only to the extent of the passengers pemiitted to be insured or directed to be insured by the statute aad actually covered by the contract. The Insuraace Coinpaay can be inade liable only ia respect ofthe uumber ofpassengers forwhoin iasuiance can be taken under the Act aad for whoia insuraace has been taken as a fact and not iu respect of fhe ofher passengers involved in fhe accident iu a case ofoverloadiag. Furfher iu para 22 it has been held as folloiws; 22. Then arises tfae question, how to deteruune the coinpensation payable or how to quaatLfy fhe coinpensation since fhere is no uieans of ascertainiag who out of the overloaded passengers constitute tiie passengers covered by the Insurance Policy as pennitted to be canied by fhe pennit itself. As this Court has indicated, the purpose oftlie Act is to bruig benefit to fhe third parties who are eifh.er iujured or dead in aa accident. It serves a social purpose. Keepiag that la miud we thiak that the practical and proper course would bd to hold that the Insurauce Coinpany, ia such a case, would be bound to^cover fhe higher of fhe various awards aad wUl be cpmpeUed to deposit fhe higher ofthe ainounts of fhe coinpensation awarded to fhe extent of fhe number of passengers covered by the uisurance poUcy." 7. In view of the above discussion, the inatter requiies reconsideration at fhe end of fhe Tribunal. Therefore, we aUow fhis appeal ia part, set aside fhe iinpugned award dated 29.8,2008 passed in Claim Case No. 15/2008 and remit the inatter back to the Tribunal for decidiag fhe claim petition a&esh at the earliest in the light of the observations niade above. 8. Needless to inention fhat wlule decidiag fhe claiai petition afresh the parties shaU be aUowed to file or amend fhe pleadin.gs, adduce further evidence file documents or get fhe ^~, documcnts verified etc., and thereafter claun petition shaU be decided. 9. The parties shall appear before the Tribiiual on 14.12.2011. Sd/- 1-M.Quddusi Judge Sd/- G. Mmhajuddin Judge Rao