c<\r . ^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C) No. ..1..^.:^ OF 2008 !@aE?&! 'il^ (APPEALVALUED AT Rs. 1.62.000/-) ^~~ Sim APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACTS. 1988. APPELLANT RESPONDENT N0.3 \^- Q^-r^ 1?': ^. ••A-t" -.-'' ....^. i1.-1 -• ^-K's:^^ fRESPONDENTS) APPLICANT N0. 1 APPLICANT N0. 2 APPLICANT N0. 3 APPLICANT N0. 4 NON-APPLICANT N0. 1 The New India Assurance Company Limited, Kankaria Building, Kamptee Line, Rajnandgaon, Distt.- Rajnandgaon (C.G.)^'' VERSUS :1. Hamida Begum, W/o - Abdul Rasid, aged 55 years, - - :2. Asgari Begum, D/o - Abdul Rasid, aged 40 years, -- ^ :3. Abdul Abid, S/o - Abdul Rasid, aged 20 years, :4. Abdul Javed, S/o - Abdul Rasid, aged 14 years, ^ Respondent No. 4 is minor, thorough: his Mbther - Hamida Begum (Respondent No. 1) All are R/o - Kashmiri Para, Ajad Ward No. 1, Dongargarh, Distt. Rajnandgaon (C.G.) :5. Kewal Raai Sahare, S/o Nandlal Sahare, aged 35 years, R/o - Ward'No. 18, Ramnagar, Jail Ro^d, Dongargarh, Itajnandgaon|C.G.) NON-APPLICANT N0.2 :6. Advin Haidar, S/o Alevgender Haidar, aged 42 years, Occupation— Truck Owner, R/o Tikrapara ward No. 3, Dongargarh, Distt. Rajnandgaon (C.G.) c;: HtGHCOURTOF CHHATTISGARHATBILASPUR ;DIVISIONBENCH HON'BLE SHRI N.K.AGARWAL & HON!BLESHR!R.L.JHANWAR,JJ. APPELLANT RESPONOiENTNO.3 RESPONDENTS .A.(C)NQ.14S50F2008 The New India Assurance CompanyLimited. Versus Farida Bsgum and others. Present : Shri Dashrath Gupta, counsei fbr theappellant. . Shri Amiyakant Tiwari, counsel for respbndehts No. 1 to6.:: . " , -: . ; .:.,.• >NoneforrespondentsNo.7&8,thoughserved. M.A.rClN0.1S200F2008 {RESPONDENT N0.2) RESPONDENTS The New Indja Assurance CompanyLimited . Mohammad Irfan and others. Present : Shri Dashrath GyptarCounselfpFlheaRpeljanf. ; Shri Amiyakant Tiwari, counsel for respon^nts No; 1. : . • • : ' :::';';"'%:%:;:.:'^ : None for respondents No. 2 & 3, thougft served. M.A.fC) N0.1521 OF 2008 'RF 1. The; New India ASsurance CdmpanyLIMItEd Versus HamidaBegum and others. : Shri Dashrath Gupta, counsel for {(-^ appiettgtnt; NoneforttieTespondents,thoughservedg|l^ J-i. ^_...L.,.-*T-tu.;..i. ,;^-J €• 1- ftPPEALSUNDERSECTION1730FTHEMOTORVEH!CLES '^ACT.WSS.'':' -:':;<...:.••;:::' ::^ (Division Bench: Hont>leShriN.K;Aaarwal& Hon'ble Shri R.L. Jhcmwar,,y.) ith (Passed on 18'" dayof November, 2i J. The above appeals ,i.e. MA.(C) Nos. 1520/2008 & 1521/2008, arising out ofthesame beingdisposed ofbythiscommon order. . 2. These are Insurer's appeals filed against the ayvard dated 18-07-2008 'passed by Additional Motpr Accidents Clain-is Tribunal, Camp Court at Dongargarh, Dlstrict Rajnandgaon .(fpr short the Tribunal') in Claim Gase Nos. 30/2007,34/2007 acKl 32/2007 whereby and whereunder aithough the Insuranee Company has been exonerated frem its liability to pay comperisation but the direction has been passed against the Insurance Company to first pay the award amQunt to the claimantsand then to recover it from the driver/owner. 3. Brief facts of the case are that Wahabdin Khan & Bablu (since deceased) (IR M.A.(C) NQ.1465/200&& in MA. (C) No. 1521/2008 respectively)and Mohd. IrfanKhan (in M.A.(C}. Njo, 1520/2008); on 26-11 -2004, while coming from Nagpur by Truipk bearing registration No. C.G.08ZC/Q279,metwithanaccident by rash and negligent driving of drlver ofthe offendsng yehiq !e (Truck), as a result of whfch Wahabdin Khan S Bat^lu ••t-S "\^ ^; a'lf a^ succumbed to the injuries sustained in the said accident and Mohd.lrfanKhansustainedmuttipleinjuriesinthesaidaccident. 4. The learned Tribuhal on closescrutiny oftheevidence led, material placed and submissions made by the parties, held Wahabdin Khan(inM.A.(C) No;1465/2008) andMohd.lrfan(in M.A.(C)No.1520/2008) were sitting in thegoods carrying vehicle i.e. Truckas gratuitous passengers and the deceased Bablu was sittingasaconductorinthesaidTruck.Further,!twasheldthat the owner of the truck has breached the condition of perm , inasmueh as, the permit was issued to ply thesaid vehicle within the limit of Chhattisggrh and the State of Madhya Pradesh whereas, thesaid vehiele was being plied atthetime pfaecident in Kuhi Siwar, Nagpur (Maharashtra). However, learned Tribunal app!ied the ratio of judgment of Supreme Coyrt in the case of Hational Insurance Co. Ltd. vs. Swaran Singh and Others, reported in (2004) 3 SCC 297 and directed the appellant/lnsurance Company to first pay the amount to the claimants and then to recover itfrom the ownerofthe vehicle. i 5. Shri Dashrath Gupta, learned counsel for the appellant would contend that so far as gratuitoys passengers are concerned, neither the rlsk is required to be covered under Section 147 of the Act nor the same has been covered by entering specific contract therefor by taking extra premium andi therefore, the direction to first pay the award amount to the claimants and then to recover it from the owner of the vehicle is-t' illeaal which deserves to be setaside. He would further contend l^ n"' '''''8!!''''!^''"^'i^il{[sRiH u!^^l^i;SKi! •4 s ;!E\ that in M.A.(C) N0.1521/2008 also since the leamed Tribunal categorically recorded a finding that the owner has breached the condition of policy, inasmuch as, plied the vehicle contrary to the eondition of the pernnit, therefore.in that case, the Searned Tribunal has erred in directing the appellant to first pay the amount to the claimants and then torecover if from the owner which also deserves to be setaside. 6. Shri Amiyakant Tiwari, learned counsel appearing for the respondents in !VI.A.(C) NOs.1465/2008 ^nd 1520/2008could not disputethe groundsraised byleamed counsel forfhe appellant. 7. We have heard learned counsel for the parfies and perused the award impugned and record of the Tribunal. • 8. The learned Tribunal has recorded categorical findingsf that Wahabdin Khan (in M.A.(C)No.1465/2008) and Mohd. Irfan (in M.A.(C)No. 1520/2008) weresittingin the goods carrying vehicle i.e. Truck as gratuitous passengers, and the deceased Bablu (in M.A.(C) No. 1521/2008)was sitting inthe truck as conductor, the above findings have not been disputed by the parties and the same has attained flnality. 9 Wehaveseenthepol!cyoflnsurance(Ex. D-1). As pen Ex. D-1, noextra premium has been taken to cover therisk of gratuitous passengers sitting in the Truck. It has also not been i disputed that theappellant/lnsurance Company is notstatutorily liable to cover the risk of sueh passengerssitting in the goods carriage vehicle. In such circumstances, in our considered :!:..'-aPa'5Sa, ;.A'''': •[.v:vis^ .-^~^, opihion, the djrectiorT to flrst pay theaward amount to the claimants and thefr to recbver it from the owner of the Truek is notsusfainableintheeyeoflaw, inasmuGhas,suchrJskisnotat all required to be covered under the policy. However, in M.A.(C) No. 1520/2008, learned Tribunal has exonerated the appellant/tnsurance Companyori fhe ground that the owner has breached the condition of permit and has ptied the vehicle jn the area fbr which permit was not granted and having found the appellant/lnsurance Company successfully proved its defenee, the Insurance Company has been exonerated and in such a case, in our considered opinioH, the leamed Tribunal has not committed any iilegatity in directing the appellant to flrst pay Ihe award amount to the claimants and then to recover it from the ownerof the Truck. W. For the foregoing, we allow the appeals i.e. M,A.(C) Nos. 1465/2008 and 1520/2008 and set aside ttie direction of the leamed Tribunal by whiehthe learned Tribunal has directed the appellant/lnsurance Gompany to firet pay the amount of eompensation to thethird party i.e. claimants and then to recovep it from the owner. 1-lowever, if any part of amount of compensation has already been deposited by the appellant/lnsyrance Company, the same has been disbursed tq the Glaimants, fbr that, the appellant/lnsurance Company is free to recover the same from the owner by filing execution petitioni before theconcemed Tribunai. Mi-'ysw.^^ BiiMK" I|i|siE.!::.hli'S?;^l"%i: l^iS-i^' Kvr ^. 6 11. So farasthe case |VI.A.(C)No. 1521/2008 isconcerned, the same stands dismissed. No order astoeosts. 12. copyoftheorderbeplacedinM.A.(C)Nos.152Q/2QQ8& 1521/2008.! SdA N.K.Agarwa! *• Judge Sd/- R.L.Jhanwar -k-&,, »S|