HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.CNo. 712 of 2008 APPELLANTS : Sachin Swarnakar & another VERSUS RESPONDENTS : Shekhar Day @ Chhotu & others & hfl.A.C No. 342 of 2008 APPELLANTS : Shekhar Day @ Chhotu & others VERSUS RESPONDENTS : Purnima& others AWARD For consideration y> • 1 0.2011 Sd/- N.K.Agarwa! Judge Hon'ble Shri Raieev Gupta. J^^y^^ Sd/- Chief Justice Postfor:2-( .10.2011 Sd/- N.K. Agrawal Judge B a, 0.1 ^ \, HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.CNo.712of2008 -' APPELLANTS 1. '•^St' RESPONDENTS 2. 1. 2. 3. 4. 5. Sachin Swarnakar, S/o Jatin Swarnakar, aged about 56 years, R/o Village Sanjay Nagar (Mahabirpur), At present Silphili, Police Station Jainagar, Tahsil Surajpur, District Surguja (CG). Savitri, W/o Sachin Swarnakar, Aged about 46 years, R/o At present Silphili, Police Station Jainagar, Tahsil Surajpur, District Surguja (CG). Versys Shekhar Day @ Chhotu, S/o Suryakant Day, aged about 32 years, Shambhu Day, S/o Suryakant Day, aged about 40 years. Niranjan S/o Bharat Wine, Aged about 45 years. Smt. Budhni, W/o Shri Baldev, aged about 43 years, Shivlal S/o Shri about 40 years Mahato, Aged Allabove R/o Village Mahabirpur, Post Ajabnagar, Police Station Jainagar, Tahsil Surajpur, District Surguja (CG). 6. Branch Manager, New India Insurance Company Limited, Raigarh, District Raigarh (CG). 7. Purnima W/o late Aseem Swarnakar, Aged about 21 years, R/o village Sanjay Nagar (Mahabirpur) Police Station Jainagar, Tahsil Surajpur, District Surguj'a (CG). Present : Shri Vikram Dixit, Advoeate for the appellants. Shri Sunil Tripathi, Advocate for respondent No.1to5&7. Shri HB Agrawal, Sr. Advocate with Smt. Meera Jaiswal, Advocate for respondent No. 6. •'y-' "'t-s & M.A.C No. 342 of 2008 APPELLANTS 1. RESPONDENTS Shekhar Day @ Chhotu, son of Suryakant Day, aged about 32 years, occupation-owner-cum- driver. 2. Shambhu Day, son of Suryakant Day, aged about 40 years (Vehicle Owner). 3. 4. 5. Niranjan son of Bharat Bayeen, Aged about 45 years (Vehicle Owner). Smt. Budhni, wife of Shri Baldeo, aged about 43 years (Vehicle Owner). Shiv Lal son of Shri Mahto, Aged about 40 years (Vehicle Owner). All are Caste-Bengali, resident of Village Mahabeerpur, Post Ajabnagar, PS Jainagar, Tahsil Surajpur, District Surguja (CG). Versys 1. Purnima widow of late Aseem Swarnakar, Aged about 21 years, Caste Bengali, resident of vitlage Sanjay Nagar (Mahabeerpur) PS Jainagar, Tahsil Surajpur, District Surguja (CG). 2. Sachin Swarnakar, son of Jateen Swarnakar, aged about 50 years, caste-Namashoodra (Swarnakar) occupation- agriculturist, resident of Village Sanjay Nagar (Mahabeerpur), presently at Silphili, PS Jainagar, Tahsil Surajpur, nistrict Surauia (CG). '"\ \ ^'-. .....^ vS£.S^j •<»-^. ^ ^ ;w Surajpur, Distt. Surguja (CG). 4. Branch Manager, New India Insurance Company Limited, Raigarh, Distt. Raigarh (CG). APPEAL UNDER SECTION 173 OF MOTOR VEHiCLES ACT^[988 DB: Hon'ble Shri Rajeev Gupta, CJ & Hon'ble Shri N.K. Agarwal, J. Present : Shri AN Bhakta, Advocate for the appellants. Shri Rishi Mahobia, Advocate for respondent No. 2 & 3. Shri AK Athaley, Advocate for respondent No.4. AWARD (Delivered on_2_/10/2011) Per: N.K. Agarwal, J 1. Both the appeals i.e. MAC No. 712/2008, filed by the claimants for enhancement of compensation, and MAC No. 342/2008, filed by the driver and owner against the award dated 24.01.2008 passed by llnd Addl. Motor Accidents Claims Tribunal (FTC), Surajpur in claim case No. 150/07 are being disposed of by this common award as the common facts and issues are involved in both the appeals and are arising out same accident. 2. As against compensation of Rs. 14,20,000/- claimed by unfortunate widow and parents of deceased Aseem Swarnakar by filing claim application under Section 166 of the Motor Vehides Act, 1.988 (for short 'the MV Act') for the '•\ ^--~."^-: ^ '.^, ^ ^i^p—lj ^-' ^.^sy •£:'. offending vehicle along with interest @ 7 percent per annum from the date of application till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to rash and negligent driving by driver of Tractor-trolley bearing registration No. MP-27- B-4394 (New Number CG15-ZC-1209); respondent/New India Insurance Co. Ltd. not liable for payment of compensation as the Tractor in question was insured for agrieulture purpose but the same was used for commercial purpose at the time of accident and deceased was sitting in the Tractor as gratuitous passenger; awarded a total sum of Rs. 2,82,OQO/- as compensation in favour of claimants along with interest @ 7 percent per annum from the date of application till its actual payment holding owner and driver of Tractor liable for payment of compensation. 4. Shri Vikram Dixit, learned counsel appearing for the claimants vehemently argued: the Tribunal has erred in assessingthe income ofdeceased and thereby in awarding low amount of compensation which deserves to be suitably enhanced. 5. Shri AN Bhakta, tearned counsel appearing for the owners •V ^•^'fc\ Xi' it? 6. Per contra, Shri HB Agrawal, learned Sr. counsel along with Shri AK Athaley and Smt. Meera Jaiswal, appearing for respondent/New India Insurance Co. Ltd. supported the award and submitted since deceased was sitting in the Tractor as gratuitous passenger, insurance company is not statutory liable to cover the risk of such passenger. The Tractor was also being used for commercial purpose in violation of policy conditions, therefore, the Tribunal has rightly exonerated the insurance company from its liability to pay compensation and the award needs no interference. 7. We have heard the counsel appeanng for the parties, perused the order impugned and records of court below. 8. It is settled law that provisions of the MV Act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger traveling in a goods carriage vehicle and the insurer would have no liability therefor. However, an owner of a vehicle intends to cover himself from other risks; it is permissible to enter into a contract of insurance in which event the insurer wouid 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. 9. We have noticed the terms of the contract of insurance. The policy issued in the case is miscellaneous special type •^'•'.'~'- -S.!~WK S: ..^s^ <? \; nn' of vehicles package policy which covers the risk of third party and driver only, and for that purpose a total premium of Rs. 1185/- has been charged. 10. In the absence of any contract covering the risk of gratuitous passenger, the insurance company cannot be held liable for payment of compensation to the claimants for the death of passenger sitting in the Tractor as gratuitous passenger. 11. Now reverting to the facts of the case, FIR Ex. P/1, filed and relied upon by the claimants shows deceased Aseem Swarnakar was sitting in the Tractor along with other persons as gratuitous passenger. To claim compensation, the elaimants have pleaded deceased was an Electrician. Fact pleaded by the claimants that deceased was working in the granary at the time of accident has been denied by the driver and owners of the vehicle in their written statement para 7. Driver and owners of vehicle have admitted that Jainagar Police has lodged criminal case against the driver under Section 304-A of Indian Penal Code without explaining the fact mentioned in the FIR that deceased along with other persons were sitting in the Tractor as gratuitous passenger. 12. As per statement of Sumant Mandal (AW-2), at the time of accident, the vehicle was being used in the granary of Sharad and was in operaiion of separating paddy <rom dry grass. In ^^^' gg •%" .Si.-S.i;. ^ ^'^ •ASu»y statement para 9, he has further deposed Tractor was hired by Sharad from Shekhar i.e. owner-cum-driver of vehicle in question. 13. The Supreme Court in case of Oriental Insurance Co. Ltd. v. Premlata Shukla & others has held : once the part of the contents of the document is admitted for evidence, the party bringing the same on record cannot be permitted to turn round and content that the other contents contained in the rest part thereof, had not been proved. 14. When the matter is examined in the context of above broad features of the fact and in the light ofjudgment of Supreme Court as referred hereinabove, in our opinion, the Tribunal has rightly held deceased Aseem Swarnakar was sitting in the Tractor as gratuitous passenger and the Tractor was being used for commercial purpose at the time of accident and has rightty exonerated the insurance company from its liability to pay compensation on the above ground. 15. Now, we shall examine sufficiency or otherwise of the amount of compensation awarded by the Tribunal in the facts and circumstances of the case. 16. The Tribunal assessed income of the deceased as Rs. 2000/- per month i.e. Rs. 24,000/- per annum on the basis of evidence adduced by claimant's witness Sumant Mandal ' 2007 (13) SCC 476 ".,^^',^ :; ^ .^'' ^ ^.i: 17. 18. (AW-2); after deducting 1/3rd of it towards personal expenses of the deceased claimant's dependency was assessed as Rs. 16000/- perannum;looking to the age of deceased as 23 years applied multiplier of 17 as prescribed in the Second Schedule appended to Section 166-A of the MV Act and awarded Rs. 2,72,000/-towards loss of dependency. The Tribunal further awarded Rs. 10,000/- on other heads and thus awarded a total sum of Rs, 2,82,000/- as compensation to the claimants along with interest @ 7 percent per annum from the date of application till its actual payment. Shri Dixit, learned counsel appearing for the claimants failed to point out any manifest error in the approach of Tribunal in assessing the amount of compensation. We also do not find any such error in the amount of compensation awarded by the Tribunal in its discretion warranting interference of this court. For the forgoing, both the appeal i.e. MAC No. 712/08, filed by the claimants, and MAC No. 342/08, filed by the driver and owner's of Tractor, being devoid of substance, are liabte to be and are hereby dismissed. No order asto cost. Sd/- Chief Justice Sd/- N.K.Agarwa! Judge o Sahu