mOH CQURTQFCHHATTISGA38HATBHASPIJR DIVISION BENCH: HON*JtLB ^imJI.K^AGRAWAL & HON»BLESHRI R.L. JHANWAR. JJ. Misc. Appeal (Ct No. 970/2009 APPBLLANT (Nca AopUcasait No.21 RESPONDElffTS 1 (AppUcaat No. 1) (Applicant No.2) 2 (AppUcaat No.3) 3 National Insurance Conipaay Limited Through : Ite Divisional Maiiager, Divisional OjBSce, G.E. Road, Raipur, District Raipur (CG) Versiss KaushiU Bai, W/o Late Deonath Sahu, aged about 28 years, Yugesh S/o Late Deonafh Sahu, aged about 02 years Ku. Mifhlesh D/r Late Deonafh Sahu^ aged about 06 years (AppUcant No.4) 4. (Applicaat No.5) 5. (Applicant No.6) 6. (Non-Applicant 7. No.l) Ku. Kirti D/o Late Deonafh Sahu, aged about 04 years, Respondent No. 2 to 4 are miaor, Through fheir motib.er KaushU Bai (Respondent No. 1) Shyam Lal, S/o Lachhaa Sahu, aged about 54 years, Raoi Bai, W/o Shayaxa Lal Sahu aged about 52 years, Respondent No. 1 to 6 atl are R/o viUage & P.0. Sasha, District Raipuf (CG) Vijay Kuinar s/o Tijauram Sori at present R/o Zone 2 Khursipar BhUai, Sector 2, Distnct Diirg (CG) Permaaent address viUage - BifkuM, P.S. Bellia, Distdct Bilaspur (CG) (Owner ofTmck No. CG 07 ZC 0326) APPBAL U/S 173 QF THB MOTOR VEHICLB8 ACT.1988 Present: Shri Dashrath Gupta, coiinsel for fhe appeUant. None for fhe respondents. QRAL-_ORDBR (18.11.2010) Per N.K.Agrawal, J. Heard fmally. 2. This is Insurer's appeal agaiast award dated 22,1.2009, passed by fhe 9tb Additional Motor Accidents Claims Tribunal, (FTC) Raipiir in Claim Case No. 131/2007. 3. Brief facts of the case are that on 12.4.2007, Deonath Sahu by loadiag vegetables along wiffat owner of fhe vegetables m fhe Miai Door, bearing registration No.CG 04J-9823, was gomg to sale the vegetables ia fhe Jarve Market On the way near Palari College, front tyre of the Miai Door got burst, as a result of which, Miai Door got uncontroUed; in fhe meaii time, driver of the Tmck bearing registration No. CG 07 ZC 0326, by driving it rashly aad negligenfly, came from opposite side aiid dashed the Miai Door, due to which, Miai Door aad fhe Truck collided aad Deonafh Sahu (Driver aad owner ofthe Miai Door) aad the driver of fhe torack had died on the spot and other persons, sittiag ia fhe Mird Door also received serious iajuries. 4, The learaed Claims Tribunal on the close scrutiny of fbie submissions made, evidence led aad material placed, held fhat the deceased was himself negUgent m drivmg fhe Mini Door iaasmuch as he lost his contool over tiie vehicle aad coUided with the tnick, commg from opposite side, which was also beiag driveu by its driver rashly/assessed the conipensation payable to fhe claioiants as Rs.4,14,500/- along wifh fhe interest@ Rs.7.5% /f^ ffcs® ..v-^ per aaniiin from fhe date of fiUng of the claim petition tiU its reaUzation aad appoitioned fhe sarne equally between fhe iion- appUcaixts/appellaat aad respondent No,7 herein. 5. Shri Dashrafh Gupta, learaed counsel appearuig on behatf of fhe appellant/National Insxiraiice Conipaiiy would eontend fhat fhe deceased beiag owner ciixa driver of fhe Miiii Door was uot a tliird party and the clami of legal representatives of fhe deceased-owner is not inaiatainable agahist fhe appellant/ National Insurao.ee Compaay. It was further submitted ftiat ftie NaUonal Insiirance Gompaay has only assumed the risk ofowner cum driver of the vehicle i.e. Deonath Sahu to the extent of Rs,2,00,000/- only by takiag extra premium of Rs.lOO/-, fhereof aad ttierefore, in aay case, fhe appellanfs Uabiltty is confmed to the extent of Rs.2,00,000/ - for owner cum driver, It was further contended fhat fhe above amount of Rs<2,00,000/- had already been paid by fhe appeUaiit/National Insurance Compaay to tlie claimants vide 2 cheques, bearing Cheque No.923594 dated 31.3.2008 and Cheque No. 923711 dated 11.4.2008 and fherefore, in any case, the clahn of legal representatives of fhe deceased Deonafh Sahu agaiast the appeUant being already satisfied, deseryes to be disiaissed aad fhe appeal deserves to be aUowed. 6. We have heard Shn Dashrafh Gupta, leamed counsel appearing on behalf of fhe appeUaat, perused the record of ftie Claims Tribuiial and fhe poUcy oflnsuraace m question, 7. A bare perusal of the policy Ex, D/1 would reveal fhat tiie appellaat had assunied fhe risk ofdeceased- Deonafh Sahu, Le. owner-cuni-driver offh.e Miai Door to fhe extent ofRs.2»00,000/- only by takiag extra premium of Rs. 100/- in fhis regard. So far as fhird party UabUity is conceraed, deceased bemg fhe owner of ^.,.^^^^ ../:::^""%, ^ ^..// '^3i!y titie vehicle was not a third party aad fhe legal representatives of fhe deceased are not entitied for any coinpensation under fhird party clahn. However, certaialy fhe appeUant owed liabitity of payinent of coinpensation to fhe legal representatives of the deceased to fhe extent of Rs.2,00,000/- ia view of specific contract by which fhe appeUaat had undertaken the nsk of owner cuin driver to fhe extent of Rs,2,00,000/-, therefore, we have no hesitation to hold fhat fhie appellanfs Uabilily is confined to Rs.2,00,000/- m the mstaat case. 8. Por the foregomg, fhe award passed by the Claims Tribunal is raodi&ed to the above extent Now the appeUaat is Uable for payment of compeusation to the extent of Rs.2,00,000/- only. However, the executing Court may ascertam the fact whether or not fhe said aBiount of Rs.2,00,000/- has already been paid by fhe appellaat to the clamiaats by 2 cheques referred herem above aad inay pass suitable orders ia fhis regard. Rest of fhe conditions of fhe award are iatact 9. The appeal is atlowed ia part. 10. No order as to costs. Sd/- N.K. Agrawal Judge Sd/- R.L. Jhanwar Judge 9^'^