^. ^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) N0. 1 { ^^ / 2009 ^ . _ _ j SJRgfe 13URER/ PELLANT / RESPONDENT N0. 3 ^ ICICI Lombard General Insurance Co. Ltd., ICICI Towers, Bandra Kurla ^v (•e^]^,2^;> Complex, Bandra (East) Mumbai, ^''y^<yT>r ., Through it's Legal Manager, 3rd Floor, r^;-^ ^.-•"^ ^^' RESPONDENTS // CLAIMANTS Lal Ganga Shopping Complex, G.E. Road, Raipur, Chhattisgarh VERSUS ^ 1. Smt. Khorbahrin Bai, wife of Late Shri Shekhar Singh, aged about 47 years, 2 Kailash, son of Late Shri Shekhar Singh, aged about 20 years Both residents of Khamhi (Kurmi), Post Farhada, Thana Jarhagaon, District Bifaspur, Chhattisgarh 3. Kamal Kumar Tandon, son of Shri ^ Ajablal, age not known to the appellant [ DRIVER ] 4, Virendra Kumar Tandon, son of Shri ^ Ajablal, age not known to the appellant [VEHICLEOWNER] Both respondent No. 3 and 4 residents of Village Bodari, Thana Chakarbhata, Tehsil Bilha, District Bilaspur, Chhattisgarh w^"' MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT1988 RESPONDENT N0. 1 teS-ft^&f^? /^-2- ^ ^ H10H CGURT OE1 CKHATTISGARH AT BILASPUR MISC. APPBAL (Cl N0. 1153 OF 2009 --•:- '< APPBLLANT/ INSURER/ RBSPONDBNTN0.3 RESPONDBNTS ICICI Loxnb<^id Geixei'al Iu»ui'auce Co. Ltd. Versias Siiit. Kliorbahriii Bai aud ofhers. APPBAL UNDER 8BCTION 173 OF THE MOTOR VBHICLE8 ACT. 19B8 Slaffle Beaeh: Hon^ble Slui G. Miahaiuddin. J. Presex&t: Shri AmLrito Das^ couiisel for fhe appellaiit, None for the respondente, fhough served. ORALORDBR (Passed on 29tb day ofSeptember, 2011) List is beliig revised. Case is caUed out tavice. No one appeais for flie respondents. Therefore, fhey ai'e proceeded ex-paite, However, leamed couiisel for fhe appellaat is heaid fiDiaIIy. 2, This appeal has been filed by fhe appeBaat - ICICI Lombard General Insurance Co. Ltd. uiider Sectioii 173 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') agauist the impugiied awai'd dated 19-01-2009 passed by Additional Motor Accident Claliiis Tribunal, Mungell^ Distrlct Bllaspur (for short <ffae Claims TriburAal5) lii Claiixi Case No.43/2008 whereby aad whereuader the liabUity to pay coiioipeasatioii of Rs.69,500/- along with iiiterest @ 6% per amium, to tlie ciaimants, fiom tlie date of preseiitatioii offlie claim petition till its payisieiit has been fastened upoii the appellaat/Insuraiice Com.paay joiiifly arid severa31y aloiig with tlie owner oftlie veliicie i.e. respoxident No.4 - Vireiidra Kuiaar Taiidon. 3, Brief facts of the case accordmg to fhe versioa of flie clainiants are that fhe claimants/respoadents are wlfe aiid soa of fhe deceased Shekh.ar Siagh. They ai'e solely depeiideiits oa the deceased. Non-applieajtite No, l and 2 were dnver, owner aiid noii- applicaiit No.S/appeUaiit was insurer of fhe offeiidlag veliicle Tractor-ti'oney beai'ing registraUon No. C.Q 10-D/ 1499 and C.G. 10- D/1500 (heremafter referred to as <the offendiag veliiele'). On 11- 05-2007^ fhe deceased Shekhar Siagh was gftiag to Kota along wifh 3U ^ 2-3 labourers to bring aiaaure. Near vlHage Ghoriiiar, on account of flie rash axid negligent driviiig of flie driver of the offendio.g vehicle, deceased Shekliar Si&gh liad fallen dowii ao.d was crushed uiider the wlieels of tlie ojBTending veliicle (tractor). TIiereafter, he was taken to liospital^ Kota where lie was declared as brought dead. Repoil of fhe IncideAit was glven to the Pollce Statlon, Kota and a crimLe was regiatered against fhe rAon-applicant No.l/driver and after iiwestigatioii, charge-sheet was ftfcd ia tfae Court of Judlclal Magistrate First Class, Bilaspur, 4. The clalmaAite being heira of the deceased Iiad filed a claim petitiori under Section 166 offhe Act, 1988 claimio.g a total amourit ofcoBipensatioAiofRs. 11,53,OOO/- Ibr flie death offhe deceased. 5. The learned Tribuiial on a close serutmy of fhe evideiice led, niaterial placed and subiGLissions made by flie parties, has awai'ded an amount of Rs.69,500/- ia favour of applicant No,l aad agamst fhe respondents. 6. Heaiid learned counsel for the appellant/Insurajice Coiiaipaiiy aiid perused the recoixl of flie Claiins Tribunal as well as tfae impugued award. 7. The contention of the learsied counsel fi>r the appeUaixt/ Insui'oiice Coiiipaay is fhat as fhere was breach of terms a&d conditlons of the itisuA'ance policy because paseenger^ were beiag traiisported iii flie troUey of fhe tiactor aiid fhe driver/respondent No,3, Kamal Kumai" Taiidon was not haviiig a valkl aiid effective drwlag licence, fherefore, fhe appeUaiit/Insurasice Couaipaiiiy is not liable to pay tlie coiiiipeAisation aiid has been wroiigly fastened wlth fhe MablUty. 8. FrouoL perusal ofthe record ofthe Clairos Tribunal, it is found that clalQiaats/respondents No. 1 & 2 have tiled documents of criminal ease pendiag agaio.st tihe drlver/iespondent No.3 Kamal Kuinar Taadoii, in respect of flie accident iii question for offence tiader Section 304-A ofIPC. Altliough the claiinaats have averred ia the claim petitioii fhat at tlie tmie ofaccident, fhe deceased SIiekliar Siiigh was traveUiig ia the ti'olley of tlie tractor aloixg with 2 to 3 other labourei's for briagiiig maiim'e but fixjm perusal of the dociiQients of flie crmiio.al case which Iias been filed by the t^A 1 3^ <. clamiants theiiaiselves, It Is clear fliat at fhe tlme of accideiit, fhe deceased Shekhar Sliigh along with 25 to 30 persons were returiung after attendiiig fhe Chautliia ceremouy an.d 011 way back because of rash aad Aiegl^ent driviag by the clriver of the tractor, respondent No. 3 Kamal Kuniar Taiidon, fhe deceased Shekliar Siiigh who was sittiiig by the side of the erxgiae niost piobably on the Biud-guaixl had faU.eu down aad was crushed under fhe wheels of tlie tractor, as a result ofwliich he died on the spot Froiii fhe above fact, it is clear that fhei'e Iias beeu a clear cut violation of fhe ternis arid conditiojis of fhe liisurance policy aiid as auch the appellaiit/Insuraiice Compaay could iiot have been ^Aeld llable for payment of comperAsation. 9. in flie result, Uie appeal is allowecl. The fmding regarding Uie liablllty of fhe appellaat/Insurance Compao.y recorded by fhe ClakiOLS Tribunal is set aside aiid tlie appellarit/ Iiisui'aace Coiaipao.y is exonerated froni its Uablllty to pay compeiisatiou. However, fhe clauiiarits/responderAts No. 1 & 2 shall be entifled to recover fhe ainount of coiapeusation froua tljie owner aad drwer i.e. Virendra Kuixiar Taiidon and Kamal Kuiiiai Tandon. 10, The aaiount of Rs,25,000/- whieh has been deposited by flie appellaiit/Insuraiice Coiapaiiy in coiiipliance of tiiie provisioas of Section 173 of the Act, 1988, shall be refunded back to fhe appeUaat/ Insurance Conipany forfhwifli, 11. No order as to c-osts. Sd/- G. Minhajuddin Judge Kvr