'-c' -^ f N THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR /f ^" M.A. (C) No.- <2^^_ /2010 APPELLANT THE ORIENTAL INSURANCE COMPANY, BRANCH OFFICE MAIN ROAD, JAGDALPUR; TEH. JAGDALPUR DISTRICT BASTAR (C.G.) (INSURANCE COMPANY) Vrs. RESPONDENTS/CLAIMANTS:- .^•". %'..- aVy<" ^.- •?<' |_ 1. SMT. TARABAI WIDOW OF LATE JOKHULAL PATELAGE 39YEARS. i. 2. MINOR MAHADEV S/0 LATE JOKHULAL PATEL AGE -15 YEARS. ^-3- MINOR RAMDAYAL S/0 LATE JOKHULAL PATELAGE-10 YEARS N0. 2 AND 3, TROUGH MOTHER AND LEGAL GUARDIAN SMT. TARABAI WIDOW OF LATE JOKHULAL PATEL, SARVJATI KURMI, RESIDENT BAZAR PARA, KODENAR, THANA- KODENAR, TEHSIL 1AGDALPUR DISTRICT BASTAR (C.G.) RESPONDENTS/NON-APPLICANTS <,>- KARTIK LAKHESHWAR S/0 HARI GOND, AGE-24 YEARS, PARMANENT RESIDENT- KALIAGUDA DISTIRCT GANJAM WAD SONABEDA, DITRICT KORAPUT, ORISSA, PRESENT ADDRESS- MOTI-TALAB PARA, NEAR, NARENDRA TALKIES, JAGDALPUR THANA- JAGDALPUR DISTIRCT BASTAR (C.G.) (VEHICLE DRIVER) DEEPCHAND JHANWAR S/0 CHATURBHUJ AGE- 38 YEARS RESIDENT HIKMI PARA, MOTI-TALAB PARA, SANJAY MARKET, NEAR OLD NARENDRA TALKIES, JAGDALPUR, DISTRICT BASTAR (C.G.) (VEHICLE OWNER) A^/ .^.. lu .^.. MEMOOFAPPEAL APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 APPEALVALUED Rs. 2,04,000/- (APPEAL BY INSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNAL Rs. 10,75,000/- - AWARDEDAMOUNTBYTRDBUNALRs. 2,04,000/- . HIGH COURT OF CHHATTISGARH AT BILASPUR M.A(G)No. 212/2010 APPELLANT The Oriental Insurance Company Versus RESPONDENTS Smt. Tarabai and others SB:- HON'BLE SHRI N.K. AGARWAL^J. PRESENT:- L. Shri Sudhir Agrawal with Shri P. Datta, Advocates for the appellant. None for respondents. ORAL ORDER (15-11-2010) Per N.K. Agarwal, J. 4. The matter is called fhrice, even then, none appears for the respondents. Therefore, the matter is heard finally in the absence of the respondents. This is insurer's appeal against the award dated 24-10- 2009 passed by fhe IIIrd Additional Motor Accidents Claims Tribunal, Bastar at Jagdalpur in Claim Case No. 378/2009. Facts of the case in brief, are that on 13-4-2003 Jokhulal Patel (since deceased) was travelling in a truck bearing registration No. CG 17 ZC /0261. Near village Kodenar, he fell down from the truck and died. The claimants being legal heirs of the deceased filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs. 10,75,OOO/- as compensation for the death of fhe deceased. Learned Tribunal awarded Rs. 2,04,000/- to the claimants and after coming to a conclusion that the deceased was sitting in fhe goods vehicle as owner of the goods, also 6. <L . 7. fastened liability of payment of compensation upon tl^\ appellant /Insurance Company. Shri Agrawal would contend that ^there is no iota of evidence in the case to suggest that the deceased was sitting and travelling along with his goods in the goods vehicle as owner of the goods, therefore, learned Tribunal has seriously erred in fastening liability of payment of compensation upon the Insurance Coinpany as the Insurance Company cannot be held liable in case of death of gratuitous passenger sitting in the goods vehicle. I have perused the record of the Tribunal and the award impugned. Although the claimants have pleaded in the claim petition that the deceased was travelling in the goods vehicle along with his goods but this fact was totally denied by the owner of the vehicle in his written statement. I have perused the F.I.R. (Ex. P-1), Merg Intimation (Ex. P-2) and seizure memo (Ex. P-3) filed by the claimants themselves. As per F.I.R. (Ex. P-1), the deceased was travelling in the said truck along with Uday and Nakul of village Kodenar. The deceased fell down and succumbed to the injuries sustained in the accident. There is nothing in the F.I.R. suggesting that the deceased was travelling in the said truck along with his goods as owner of the goods, rather the F.I.R. is suggestive of the fact that the deceased was travelling in the said truck along with other persons as gratuitous passenger. There is no seizure memo suggesting seizure of any such goods alleged to be trarisported in the said truck owned by the deceased. 8. I have seen the evidence of Tarabai (A.W.l). She has not seen the incident. Ram Singh (A.W. 2) alleged to be eye- witness of the accident has not stated anything suggesting that the deceased was sitting in the said truck along with his goods. The owner of the vehicle Deepchand Jhanwar I SJI !\ has in fact denied the accident in his statement. One more fact is relevant, the deceased was sitting in the Dala of fhe truck. 9. In National Insurance Co. Ltd. -v- Cholleti Bharatamma & others reported in (2008) 1 SCC 423 the Supreme Court held that so far as the goods carriage is concemed, passengers travelling in goods carriage whether gratuitous or otherwise were not covered under Section 147 of the Motor Vehicles Act, 1988. It further held that the owner of the goods must travel only in the cabin of the vehicle and not with the goods so as to be covered under Secdon 147 of the Motor Vehicles Act and it was necessary to prove that the deceased was travelling in the Lorry (goods carriage) along with the driver or the cleaner as the owner of the goods. Traveling with the goods itself would not entitle anyone to protection under Section 147. 10. In view of the evidence available on record, I am of the considered opinion that learned Tribunal has erred in holding that the deceased was sitting in the truck as owner of the goods being carried in the said vehicle, rather he was a gratuitous passenger sitting in the Dala which is not permitted and thus the Insurance Company is not liable to pay compensation to the claimant. 11. In view of the above, the above finding is set aside. The appeal is allowed. So far as liability of payment of compensation fastened upon the Insurance Company is concemed, is setaside. However, the claimants are free to execute the award against the other respondents. 12. No orders as to costs. Sd/- N K. Agarwal Judge ..)