•c^~ / IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ^)3^1<gi^(^S7~~ MISC.^^&C<C^@BNo. ^tl! OF2007 APPELLANT : R5SPONDBNT No. 2 ^Phe Oriental Insurance Conipany Ltd., Divisional Office-I, Madina Manzil, Kachahari Road, Raipur (CG) -VERSUS- pESPONDENTS: 1, ^ ^ Devwantin Bai, W/o Baharuram Sahu, Aged about 45 years. i Kuniari Dularin Bai, D/o Baharuram Sahu, Aged about 17 years. >C7 Rishi Kumar Sahu, S/o. Baharuram Sahu, Aged about 14 years, Under the gnardianship/ Legal representative of Mother, Dev^vantin Bai,^^ P<^>>i> 2.^3 ViUage - Pendri, iS^w^,- PO: Rajpur, Durg (CG>, Hall-Mukam: Hirapur^ District/Talisil -Raipur(CG) Sanjeev Kuraar S/o Baharuraxn, Sakin Pendri, PO: Rajpur, Tahsil-Dhamdha, Distt: Durg (CG) ...2 '\ r'" i^ ;^te.«*^fcK.»wte^ @ (^ -2- MISC. APPEAL UNDER SBCTION {73 OF MOTOR VEHICLE AfT 1988. ,^ ^^ HIGH COURT OF CHHAmSGARH, BILASPUR DB: HON»BLEI.M. QUDDUSI fis HON»BLEPRASHANT KUMAR MISHRA, JJ, M. A(C1. No. 541 of 2007 Vs. M.A(Ct. No. 542 of 2007 Vs. MISC. APPBAL U/S 173 OF THE MOTOR VEHICLBS ACT. 1988 APPBARAN^: Mr. Sudhir Agrawal, counsel /for the appeUant(s) Oriental Insuraiice Company Limited, Mr. S. C, Venna, learaed coilnsel for respondents 1 to 3 ia M.A.(C).No.541/2007 and respondents 1 to 7 in M.A(C). No.542/ 2007. ORDER (ORALt (27.04.2011) PerLM. QUDDUSLJ, These are fhe two appeals ffled by fhe Insuraace Compaay agaiast the two separate impugned awards passed on 31.01.2007 by the XI Additional Motor Accident Claims Tribunal, BUaspur (FTC), Raipur, (C.G) m Claim Case No.78/2006 & Claim Case No.77/2006. \ Brief fafefs of fhe case as per the version of the clairaaats are \, fhat on 0^.06.2005 deceased Baharurani was returauig to his village Pendri from Khah'agarh by driviag motorcycle beariug Regn.No,C,G,007-LA/4413. Arjunlal Vishwakarma was sitting as a piUion rider. Ou fhe way at about 5^00 p.Bi. APPELLANT The Oriental Insuraace Comipaiiy Ltd RESPONDENTS Dewaiitia Bai and otihiers APPBLLANT The Oriental Insurance Coxnpany Ltd RBSPONDBNTS Malti Devi aad others iiear a turaiag of vlllage Duda fhe front wbeel tire of fhe niotorcycle was suddenly burst and fherefore, the vehicle was inibalaaced and struck against a tree, as a result of which, bofh fhe driver Baharuram aad piUion rider Arjunlal Vishwakanna died. The dependents/legal representatives of deceased Baharuram have filed Claim Case beiag No.78/2006 (Dewantin Bai and others -vs- Sanjeev Kumar and anoiher) whereas fhe dependents/legal representatives of Arjunlal Vishwakaraia have filed Clami Case bemg No.77f 2006 (Malii Bai & others -vs- Saryeev Kumar and another) u/s 163-A of the Motor Vehicles Act, 1988 for fhe award of conipensations. The Clamis Tribunal awarded conipensatiou to the claimaats m respect of fhe two deceased persons who were piUion riders. i Mr. Sudhir Agrawal, learaed counsel for fhe appeUaat subniits fhat deceased Baharu Rara and Arjunlal Vishwakarma both were Uie piUion riders and fhere was findiag ofthe Tribunal ia fhe inipugned award. He coutends that fhere was one seating capacity for piUion rider whereas fliere were two piUion riders sitting on the niotorbike, therefore, fhe iasuratlce coiapaay is not Uable to pay compensation to bofh fhe piUion riders, He has also reUed in case of NGtlonal Insurance Company I/td. -Vs- Anfana Shgetm and othcrs, (2007) 7 SCC 445 m which Hon'ble fhe Apex Court has in suni aad substaiice held vide paras 20 & 21 that iaspite offhe relevaat provisions ofthe statute, msiiraace stiU remams a contract between fhe owner aad fhe uisurer and fhe parties are govemed by fhe terms of their contoract. The iasured is covered only to fhe extent of fhe passengers permitted to be insured or directed to be insured by fhe statute aiid actuaUy covered by fhe contract The Insuraace Coinpaay caa be niade Uable only ui respect of the nuinber of passengers for whora iasuraace caa be faken under fh.e Act aad for whom iasuraace has been talcen as a fact aad not ia respect of fhe ofher passengers iavolved in fhe accident ia a case ofoverloadiag. | ;!l Further ia para 22 it has been held as foUows: -'s-.. "22. Then arises fhe question, how to detennuie fhe coinpensation payable or how to quantify fhe coiapensation since tiiere is no nieaas of ascertamiag who out of fh-e overloaded passengers constitute fhe passengers covered by the Insurance Policy as permitted to be carried by the pennit itsetf. As fhis Coiirt has iadicated, the purpose of fhe Act is to bring benefit to fhe fhird parties who are either injured or dead m an accident. It serves a social purpose. Keepiag that ia iniad we think that fhe practical aad proper course would be to hold that fhe Insuraiice Compaay, ia such a case, would be bound to cover fhe higher of fhe various awards aad wiU be conipeUed to deposit the higher of fhe aoiounts of the coinpensation awarded to fhe extent of fhe number of p<assengers covered by fhe iasuraace policy.w 6. In view of fhe above, fhe Insuraace Compaay is Uable to pay the conipensation to fhe claunaats ia respect of one of fhe piUion riders to whoni the higher aiaount of com.pensation has been awarded by the Tribuual, The higher amount of coiapeusation has been awarded to the clamiaats Malti Devi and ofhers in ClaLm Case No.77/2006 which is fhe subject matter of M.A(C).No.542/2007. The Tribunal has awarded Rs.4,99,000/- as compensation to fhese claimants. Therefore, fhe appeUaat(s) are not Uable to pay compensation to clainiaiits Smt. Dewaiitm Bai aiid ofhers ia claun Petition No.78/2006 which is the subject matter of MA(C). No.541/ 2007 in which fhe compensation has been awarded to fhe tune of Rs.3,73,000/-. The claim petitions were filed u/s 163-A- of fhe Motor Vehicles Act, fherefore, Second Schedule provided m fhe Motor Vehicles Act would be applicable. In the clairh petition of Malti Devi and ofhers, it has been \ Bientioned \that fhe annual iacoxae of fhe deceased was Rs,40,000/- per annum. 7. Learaed counsel for fhe appeUaiit(s) also contends fhat the amount awarded by tiie Tribunal is on higher side. The w^ -^??—^3;3—— ^^^.., /•^ "^ ii^i^3^ A :t3 ^ z appellaat has got permission u/s 170 of fhe Motor Vehicles Act to chaUenge fhe quantuin. Therefore, we are iaclmed to consider fhe question of determiaation of compensation ia accordaace wifh fhe Second Schedule appended to Section 163-A ofthe Motor Vehicles Act 8. The Tribunal has assessed tihe iacoine @ Rs.130/- per day, which is not correct and the Tribunal has also ignored fhat it witl exceed fhe inaxtoiura Uinit of Rs,40,000/- when ia fhe claiin petition itsetf it has been raentioned fhat fhe annual iacoine of fhe deceased was Rs.40s000/- axid there was no question of assessiag fhe iacoine of fhe deceased raore fhan Rs.40,000/- by fhe Tribiuial. However, we take fhe iaconie ofdeceased as Rs.100/- per day aad Rs.3000/- per nionfh. Thus fhe aanual uicoine coines to Rs.36,000/-. After deducting l/3rd towards personal aad Uviag expenses, fhe reniamder conies to Rs.24,000/- that is total los? ofaanual dependency. The age of fhe deceased was 32 years, fherefore, niultipUer 17 would be appUcable and fhus fhe total loss ofdependency coines to Rs,4,08,000. Besides fhis, as aientioned ia Second Schedule, Claimao.t No.l Malti is entitied to get Rs.5000/- for loss ofconsordum;Rs.2000/- for funeral expenses and Rs.2500/- for loss ofestate which ia all com.es to Rs.9500/- under ofh.er heads, After addiag this amount to fhe total loss of dependency, fhe total amount of coinpeusation comLes to Rs.4,17,500/-. Accordiagly, the award passed by fhe Tribunal ia Claim Case No.77/2006 is modified. 9. Therefore, in the result, M.A(C ).No.541/2007 is aUowed. The Insuraace Conipany is exonerated froin its UabUity to pay coinpensation to Claioiaats Srat. Devaatin Bai aad others ia Claun Petition No.78/2006. However, these clainiacits would be entitied to recover the conipensation froin the owner offhe vehicle. \ 10. M.A(C}.No.5^2/2007 is aUowed in part. The amount of compensatioub is reduced to Rs.4,17,500/- aad the award is Eaodi&ed to tiie above extent. The said ainount shaU also cany simple uiterest @ 6% per annuni froni fhe date of filmg offhe claim petition tUl its payiiient is inade. r- -4f '< "'^ •k.. ^^ 11. If aiiy amiount has been deposited ia respect of M.A(C).No.541/2007 filed by appeUant Devaatm Bai adsing out of Clauii Petition No.78/2006 fhe saine shaU be refunded to it. However, tf the aniount has already been paid, it wiU be open for the Iusuran.ee Conipaay to recover fhe said amount froin the owner offhe vehicle. Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Rao n: ^^'---. Ai-