1 c- r IS/-^'^ M.A.(C.) No....l.>.?..J.../2008 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR AppeHant y^A No.2 ^.^&. ..^-l- Harikesh Yadav S/o R.P. Yadav Aged about 42 years, R/o Tulsi Nagar, Korba, Tahsil & District Korba (C.G.) Versus Respondents ,AIMANTS 1 & 2 c< ^) N.A. No.l 3) Sukul Singh S/o Late Itwar Singh Caste ; Gond, Aged about 43 yrs Shiv Prasad S/o Late Tir Singh Aged about 25 years, Both are R/o ViBage Rajkamina Post: Rajkanuna, PoEce Station SB Tahsil PaU, District Korba (C.G.) Jaiprakash Prasad Verma S/o Jit Narayan Venna, Aged about 31 years, R/o Qr.No. 1/M.P. Housing Board Colony, Balco Korba Tahsil 85 District Korba (C.G.) The Senior Divisional Manager The New todia Insurance Coinpany Ltd., Tlirough : Divisional OfBce Sada Coinplex, Transport Nagar Korba, Tahsil & District Korba (C.G.) hsf" MISCELLANEOUS APHEAL U/S 173 OF M. V. ACT 1988 N.A. No.3 4) <1 HIGJ-1 COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Honlble Shri Justice Prashant Kumar Mishra Appellant Miscellaneous ApDeaj (C.) No.1350 of 2008 Harikesh Yadav versus Respondents Pardeshi and others Present: Shri Parag Kotecha, counsel for the appellant. Shri Sourabh Sharma, counsel for respondent No.4/insurance company. No oneappears for other respondents. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 Miscellaneous Appeal (C.) No.1351 of 2008 Appeltent Harikesh Yadav versus Respondents Sukul Singh and others Present: Shri Parag Kotecha, counsel for the appellant. Shri Sourabh Sharma, counsel for respondent No.4/insurance company. No one appears for other respondents. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORAL ORDER :th (Passed on 25'" August, 2010) By this common order, Miscellaneous Appeals (C.) \. No.1350/2008 and 1351/2008 are disposed of. 11 2. In an accident involving appellant's Truck bearing registration No.CG 12 ZC 1883 deceased Devkumar and Kisun, after suffering fatal injuries, died on 29-10-2006. 3. These two appeals have been preferred by the owner of the vehiclechallenging the award passed by the Claims Tribunal, whereby the insurance company has been exonerated from the tiability of payment of compensation. 4. Learned counsel for the appellant/owner would submit that the deceased Devkumar and Kisun were employed in the Truck and were covered under the policy of insurance inasmuch as extra premium for two labourers was paid to thejnsurance company. Learned counsel would submit that the statement made in the claim petition as well as in the deposition on behalf of the claimants would clearly point out that the deceased were labourers and that the finding recorded to the contrary by the Claims Tribunal is perverse. Relying on the judgment o( this Court in Smt. Rambati Madiya and others vs. Budanti @ Danteshar Rao and others, 2008 (3) CGLJ 413 (DB) and The New India Assurance Company Ltd. vs. Raju alias Prasanna Rao and others, Miscellaneous Appeal No.572/1998 decided on 6th August, 2010, learned counsel would submit that the Claims Tribunal should have held that the insurance company is liable to satisfy the award. Learned counsel for the appellant/owner has also urged that the contents of the F.1.R. should not have been used against the appellant/owner because in the said F.1. R. the registration number of the present vehicle was not mentioned. The argument appears to be that when the incriminating statement was recorded in the F.1.R., the involvement ofthe appellant's vehicle was not mentioned in the F.1.R. 5. Learned counsel for respondent No.4/insurance company has argued that in the reply filed by theowner of the vehicle, the owner has not made any statement that the deceased were employed as Majdoor by the owner of the vehicle and that when the documents available in the criminal case have been used for one purpose, correctness of the other part of the documents cannot be challenged by the appellanVowner. According to learned counsel, since in the charge- sheet filed against the driver, it has ultimately been found that the appellant's vehicle was involved, the other statements recorded in course of investigation shall have to be relied upon. Relying on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Premlata Shukla and others, 2007 AIR SCW 3591, learned counsel would submit that the Claims Tribunal has not committed any illegality in fastening the liability on the owner. 6. The question to be decided in these appeals is whether the deceased Devkumar and Kisun were employed as Majdoor in the subject Truck and were under the employment of the appellant so as to be covered under the policy of insurance. 7. It is not disputed that the policy of insurance covered two employees. The part of the policy, wherein extra premium has been endorsed, reads as "WC to employee 2 — Rs.50/-". 8 . In the claim petition preferred by the claimants ofthe deceased Devkumar, it was mentioned that the deceased was working as ! 17.", .'••^^ •^:::y' ^ labourer in the vehicle, whereas in the claim petition preferred by the claimants of the deceased Kisun, it was mentioned that the deceased was a labourer and was also earning livelihood by selling Chana- Murra. In his reply to the claim petition, theappellant/owner has denied that the deceased were employed or were working as labourers in the vehicle. In the written submission filed by the appellant/owner before the Claims Tribunal, it was again mentioned that the deceased were not at all connected with the vehicle and the deceased were neither Majdoor nor were travellers in the vehicle. 9. In the statement of Sukul Singh, who is one of the dependents of the deceased Devkumar, it is mentioned that the deceased was earning Rs. 1,000—1,200per week and had gone to load boulders, however, he has not made any statement that the deceased was employed in the vehicle under the owner of the vehicle. In his cross- examination, he admits that he does not recognize the person under whom Devkumar was working. According to him, Veer Singh is his elder son, who was also present in the vehicle inside the cabin at the time of accident. Denying the suggestion made to him in his cross- examination to the effect that the deceased persons had boarded the Truck on a pleasure trip, he says that they had gone to load the boulders. 10. Pardesi is the other witness who is the father of the deceased Kisun. In his examination-in-chief, he has not stated that the deceased was employed in the vehicle under the appellant/owner. r ! J <a^'^ -'^"* ~\ t .. \ s» ft 11. In the Dehati Nalishi recorded by the concerned police officer, it has been stated that the said officer was informed by Veer Singh (son of Sukul Singh), who is the brother of the deceased Devkumar, that he along with Injore Singh and Heera Singh had gone to load the boulders, whereas Kisun and Devkumar had boarded the vehicle just for a pleasure trip. 12. On the basis of the evidence available on record, it would be apparent that the deceased might have boarded the Truck for loading- unloading, there is no material on record to prove that the deceased were employed by the owner of the vehicle so as to cover them in the policy of insurance. Further, from the statement of Shri Tirkey, the witness examined by the insurance company, it appears that premium for covering two employees would mean the driver and the cleaner and, thus, according to him, no other person except the driver and the cteaner were covered underthe policy of insurance. t 13. In view of this and taking into account the entirety of the evidence on record, this Court is satisfied that the Claims Tribunal has not committed any error in absolving the insurance company from payment of liability or to satisfy the award. 14. Miscellaneous Appeals (C.) No.1350/2008 and 1351/2008 fail and are hereby dismissed. ———-- - Sd/- Prashant Kumar Mishra Judge 1 .(Ij)ltl