IN THE HON'BLE HIGjLCOURT OF CHHATTISGARlT^ AT BILASPUR M.AJQ No. / 04 of 2010, ^- APPELLANT ::^The United India Insurance NON-APPLICANT Co.Ltd., Branch Manager, Near No.3 Ram Mandir, Ambikapur, District Sarguja (Chhattisgarh). ) RESPONDENTS :1) ^^- ^': ..• ..^' v'v€^-- ^*- " "^ ^ i Versus Chandan, son of Sukhdev Singh, Caste Gond, aged about 30 years, resident of Village Gokulpur, Thana Ramanujnagar, Tahsil Surajpur, District Sarguja (Chhattisgarh), CLAIMANTS Shanker Prasad Patel, son of Kanhai Ram Patel, Caste Kunbi, aged 60 years, Occupation Agriculture, resident of Village Patrapali, Thana Ramanujnagar, Tahsil Surajpur, District Sarguja (Chhattisgarh), NON-APPLICANT No. 1 j3) Indrapal, son of Harmangal / Ram, aged about 27 years, resident of Village Nakna, Thana Ramanujnagar, Tahsil Surajpur, District Sarguja (Chhattisgarh) NON-APPLICANT No.2 APPEAL UNDER SECTION f73 OF MOTOR VEHICLES ACT. /^SSrt^S,; \^^€/ HIGH COURT OF CHHATTISGARH AT B8LASPUR M.A.CNo. 104 of 2010 APPELLANT RESPONDENTS The Unlted India Insurance Co. Ltd. VERSUS Chandan & others (APPEAL UNDER SECTION 173 OF THE MOTQR VEHICLES ACT) (SB: Hon'ble Mr. N.K. Aaarwal. J.1 Present 1. Shri HB Agrawal, Sr. Advocate with Shri Pankaj Agrawal; Advocate for the appellant. Shri DN Prajapati, Advocate for respondent No. 1. Shri Shakti Raj Sinha, Advocate for respondent No. 2 & 3. ORAL ORDER (Passedon 12.10.2011) This is insurer's appeal against the award dated 3.12.2009 passed by the llnd Additional Motor Accident Clalms Tribunal (FTC), Surajpur, Distt. Surguja (for short 'the Tribunal') in claim caseNo. 160/07. As against compensation of Rs. 7,00,000/- claimed by father of deceased Guru Ghasidas Durgam Singh by flling applteation before the Tribunal under Section 166 of the Motor Vehicies Act, 1988 (for short 'MV Act') for the death of deceased in the motor accident on 11 .6.2007, the Tribunal awarded a total sum of Rs. 90,000/- along with jnterest @ 7.5 percent per annum from the date of application till its actual payment against the appellant as well as owner and driver of Tractor-Trolley bearing registration No. MP-27-B-5297 & MP-27-B-5318. The Tribunal, on a close scrutiny ofthe evidence led, held : the accident had occurred due to rash and negligent driving of l^s^i 6. driver of Tractor in question; Guru Ghasidas Durgam Singh, aged five years, djed on account of injuries sustalned by him in the said accident; deceased was not gratuitous passenger sitting in the Tractor-Trolley therefore held the appeiiant/ United India Insurance company liable for payment of compensation to the claimants; assessed and awarded aforesaid amount of compensation in favour of claimants. Shri HB Agrawal, learned Sr. counsel appearing for the appellant would submit : although it was the specific case of the claimant that deceased was sitting in the Tractor-troiley with the driver of the Tractor at the time of accident. evidence is also led by them to the same effect, but ignoring the pleadings and evidence of the claimant, the Tribunal has wrongly held the appellant/insurance company liable for payment of compensation to the claimant which is perverse and deserves to be set aside. On the other hand, Shri DN Prajapati and Shri Shaktj Raj Sinha, learned counsel appearing for the respondents vehemently argued that the Tribunal has rightly fastened the liability of payment of compensation upon the appellant holding deceased was playing in-front of Tractor in question at the tlme of accident and was not sitting in the Tractor as gratuitous passenger and the above findings deserve to be upheld. 1 have heard the counsel appearing for the parttes and perused the order impugned including records of the Tribunal. ,y ,,.y''''"-^ % %.^"&, ^; 7. It is settled law that provisions of the MV Act do not enjoin any statutory liability on the owner of the vehlcle to get his vehicte insured for any passenger traveiing in a goods carriage vehicle and the insurer would have no liability therefor. However.an owner of a vehicle intends to cover hjmself from other risks; it is permissible to enter into a contract of insurance in which event the insurer would be bound to reimburse the owner of the vehicle strictly in terms thereof. A contract of insurance which is not statutory in nature should be construed like any other contract. 8. In the instant case, undisputedly, risk of gratuitous passengers sittjng in the Tractor is not covered by the appellant/insurance company by entering into special contract with the owner of (he Tractor in this regard and by taking premjum therefor. 9. The main controversy in the instant case therefore revolves around the fact whether or not the deceased was sittjng in the Tractor as gratuitous passenger. 10. A bare perusal of claim petjtion para 11, statements of Chandan (AW-1) & Manjhi Ram (AW-2) would reveal deceased was sitting in the Tractor along with its driver at the time of accident. Statement of Dilip Singh (NAW-3) and investigation report (Ex. D/2) also reveals the same fact. 11. Shri Sinha, learned counsel appearing for the respondent No. 2 & 3, by referring statement para 8 & 9 of Chandan (AW-1) contended deceased was playing in-front of the Tractor but the !3S ?;:: statement given by Chandan that deceased was sitting in the Tractor with its driver was given by him on misrepresentation made by insurance persons. In para 9, Chandan has stated person from insurance company has come to him two month's after flling of claim application. Investigator Dilip Singh examined by the appellant/insurance company was not cross- examined by the owner suggesting him that for the benefit of company Chandan was misrepresented by him to make such statement. Owner did not dare to enter into witness box. In the written statement owner had denied the factum of accjdent. 12. When the matter is examined in the context of above evidence and pleadings of the parties, there is no iota of doubt in my mind that the findings of Tribunal that deceased was not sitting jn the Tractor but was playing in-front of Tractor at the time of accident is erroneous and Is not sustainable in law. Deceased being gratuitous passenger sitting in the Tractor at the time of accjdent, the appellant/insurance company has been wrongly held liable for payment of compensafion by the Tribunal. 13. For the forgoing, the appeal is allowed in part. Part of the award by which the liabilfty has been fastened upon the appellant/The United India Insurance Co. Ltd. to pay compensation to the claimants is set aside. Award js modified to the above extent. Rest of the conditions mentioned in the award shall remain intact. 14. The respondent No. 1/claimant is entitled to execute the award against the respondent No.2 & 3. Appellant/insurance company is also entitled to recover the amount deposited by it & disbursed to the clajmant from respondent No. 2 & 3 by filing execution petition before the concerned claims Tribunaf. No order as to costs. Sd/- N.K. Agarwal Judge Sahu fc