Chattisgarh High Court
The New India Assurance Company Limited vs Smt. Ram Kumari And Ors on 6 September, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MA(C) No.389 of 2015
The New India Assurance Company Limited Through Authorized Authority,
Divisional Office, Iind Floor, Rama Trade Centre, Above Axis Bank Opp.-
Rajiv Plaza, Bus Stand Road, Bilaspur, Tah. and Distt. Bilaspur
Chhattisgarh.
---Appellant(s)
Versus
1. Smt. Ram Kumari W/o Wd/o Late Jay Singh Gond Aged About 30 Years
2. Pradeep S/o Late Jay Singh Gond Aged About 9 Years
3. Kuldeep S/o Late Jay Singh Gond Aged About 6 Years
4. Sajna D/o Late Jay Singh Gond Aged About 3 Years
5. Agasiya W/o Wd/o Late Firtu Gond Aged About 70 Years
Respondents No.2 to 4 are Minor Through Mother Smt. Ram Kumari Wd/o
Late Jai Singh Gond, aged 30 years.
Respondents No. 1 to 5 are all R/o village Budhwara, PS Lormi, Tah. Lormi, Distt. Mungeli (CG).
6. Chatur @ Raju Nisad S/o Ganga Ram Nisad Aged About 34 Years R/o Ranwabhata, Raipur Near Banjari Mandir, Raipur, Tah. And Distt. Raipur Chhattisgarh Hal Mukam Gandhidih Lormi P.S. Lormi, Distt. Mungeli Chhattisgarh.
7. Vivek Agrawal S/o Shri Vishnu Prasad Agrawal Aged About 25 Years R/o Main Road Lormi, P.S. Lormi, Distt.- Mungeli Chhattisgarh.
---Respondents MA(C) No.390 of 2015 The New India Assurance Company Limited Through Authorized Authority, Divisional Manager, Divisional-Office, Iind Floor, Rama Trade Centre, Above Axis Bank, Opp.- Rajiv Plaza, Bus Stand Road, Bilaspur, Tah. and Distt.- Bilaspur, Chhattisgarh.
---Appellant(s) Versus
1. Smt. Parvati Yadav D/o Wd/o Late Mannu Yadav Aged About 30 Years
2. Kumari Anupa S/o D/o Late Mannu Yadav Aged About 6 Years
3. Rahul S/o S/o Late Mannu Yadav Aged About 4 Years
4. Achan Bai S/o Wd/o Late Baisakhu Yadav Aged About 75 Years Respondents No.2&3 are minor through their mother Smt. Parvati Yadav, Wd/o Late Mannu Yadav, aged 30 years.
Respondents No. 1 to 5 are R/o Village- Budhwara, P.S. - Lormi, Tah.- Lormi, Distt.- Mungeli, Chhattisgarh, District : Mungeli, Chhattisgarh
5. Chatur @ Raju Nisad S/o S/o Ganga Ram Nisad Aged About 34 Years R/o Ranwabhata, Raipur Near Banjari Mandir, Raipur, Tah. And Distt.- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
6. Vivek Agrawal S/o S/o Shri Vishnu Prasad Agrawal Aged About 25 Years R/o Main Road Lormi, P.S. - Lormi, Distt.- Mungeli Chhattisgarh.
Respondent(s)
For Appellants : Shri Dashrath Gupta, Advocate.
For Claimants : Shri Anand Kesharwani, Advocate.
For Driver & Owner : Shri Sangeet Kumar Kushwaha, Advocate.
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Hon'ble Shri Justice P. Sam Koshy
Order on Board
06.09.2022
1. Since the two appeals arise out of a common award passed by the 6 th Additional Motor Accident Claims Tribunal, Bilaspur, in claim case No.3/2014 and 6/2014, the grounds of appeal on the part of the appellants being common, the two appeals are being proceeded and decided by this common order.
2. The respondents No.1 to 5 in MAC No.389/2015 and respondents No.1 to 4 in MAC No.390/2015 are the widow, children and parents of the deceased Jay Singh Gond and Mannu Yadav respectively. The facts of the case is that on 18.10.2013 when the Dumper Truck bearing registration No.CG-12-ZC-0350 driven by Chatur @ Raju Nishad and owned by Vivek Agrawal carrying boulders on it along with a couple of workers including the two deceased persons namely Jay Singh and Mannu Yadav met with an accidental death when it is said that the said Dumper turned turtle. The two deceased persons were crushed under the boulders loaded in the said Dumper which fell upon the deceased persons.
3. The claimants filed the claim applications seeking for compensation under Section 166 of the Motor Vehicles Act. The appellant-The New India Assurance Co. Ltd. was the insurance company which had insured the offending Dumper i.e. CG-12-ZC-0350. The nature of the policy was commercial vehicle liability only policy covering the risk of Driver, Conductor, Cleaner and the third party.
4. There is no dispute so far as the vehicle involved in the accident, the vehicle having a valid policy, so far as the driver and owner of the offending vehicle is concerned that is also not in dispute. An accident that took place on 18.10.2013 is also not in dispute. It is also an admitted fact -3- that in the course of accident the two persons namely Jay Singh Gond and Mannu Yadav died of the injuries sustained from the said accident.
5. After the pleadings were concluded and the evidences were recorded, the Tribunal vide its impugned award quantified the compensation in the two cases assessing the compensation at Rs.11,00,000/- each to both the claimants in two cases with interest @ 7.5 percent per annum and in default 9 percent per annum. While awarding the compensation, the Tribunal has held the insurance company liable to pay compensation in respect of one of the claimant and so far as the other claimant is concerned, the insurance company has been directed to pay the amount and to recover the same from the owner of the offending vehicle. It is this liability which has been fastened upon the insurance company in the making of the payment by the Tribunal which is under challenge in these two appeals.
6. According to counsel for the appellants-insurance company, the policy in the instant case was a commercial vehicle liability only policy. The premium paid was covering the risk of the Driver, Conductor and the Cleaner employed by the owner and third party. Therefore, since no extra premium has been paid by the owner of the offending vehicle covering the risk of any other persons travelling in the said vehicle, the insurance company cannot be fastened with the liability of payment of compensation. It was the further contention of the counsel for the Insurance company that from the plain reading of the contents of the FIR as also the documents related to the criminal case it would reveal that the entire accident occurred because of the rash and negligent driving of the driver Chatur @ Raju Nishad.
7. It would be evident that the accident occurred when the Dumper because of the driver's rash and negligent driving turned turtle causing death of the -4- two deceased persons and also injuring many other persons. It was also the contention of the appellant that from reading of the contents of the FIR and other documents it would reveal that the two deceased persons and other workers were also travelling on the said Dumper sitting at the back of the Dumper. Further, that there was no premium paid for covering the risk of those persons other than the Driver, Conductor and the Cleaner. Therefore, the award of the Tribunal fastening the liability upon the insurance company is per se illegal and liable to be set aside.
8. So also, it is the contention of the appellant the finding of the Tribunal so far as covering one of the persons as a passenger of the vehicle indemnifying the owner for one of the passenger again is per se bad as the policy, Exhibit NA-3 itself is evident that the coverage was only so far as the Driver, Conductor and Cleaner. Therefore the order of the fastening of liability upon the insurance company so far as one of the claimants are concerned, is liable to set aside/quashed.
9. Having heard the contentions put forth on either side and on perusal of records what is evidently clear is that in addition to the aforesaid admitted factual matrix of the case as narrated in the preceding paragraphs, undoubtedly the vehicle was insured at the relevant point of time and the policy was commercial vehicle liability only policy. The risk covered was only that of the Driver, Conductor, Cleaner and third party. The FIR of the said accident was reported on 19.10.2013 at Police Station, Takhatpur, Distt. Bilaspur vide Crime No.375/2013 wherein the Driver of the said vehicle was prosecuted for the offence punishable under Sections 279, 337 and 304-A IPC. In the FIR the accident has been summarized and informed that an accident did take place on 18.10.2013 from the offending vehicle CG-12-ZC-0350 driven by Chatur @ Raju Nishad owned by Vivek Agrawal. However, during the course of the evidence the claimants in -5- addition to their respective deposition have also adduced an evidence of one Chandrahas Rathore, PW-2 and Naresh Kumar Maravi, PW-3, both of whom have stated before the Tribunal that the accident occurred when the Dumper got stuck in a pit and in the course of pulling the Dumper out of the said pit the Dumper turned turtle and in the process the deceased persons and other who were standing surrounding the Dumper sustained injuries and the two persons died of the injuries sustained.
10. Of the aforesaid two witnesses, Chandrahas has been examined as an eyewitness. He has also been extensively cross examined by the insurance company. Nothing could be extracted out of the cross examination of the said witnesses with which he could be disbelieved of his version. In his deposition he has concurred with the contents of the FIR so far as the accident having occurred on 18.10.2013 and the two persons Jay Singh and Mannu Yadav succumbing to the injuries sustained by them. There was no material available before the Tribunal whatsoever to disbelieve the statement of Chandrahas Rathore, an eyewitness to the incident. Nowhere in his deposition before the Tribunal has he disagreed with the contents of the FIR that has been lodged except the fact that in his deposition before the Tribunal he has given further minute details as to how the accident occurred. The providing of minute details in the deposition before the Tribunal cannot be said to have been made with any malafide intention or with any oblique motive as there is no evidence led by the appellant-insurance company to show that the said witness Chandrahas Rathore, PW-2 and Naresh Kumar Maravi, PW-3 had any prejudice with the appellant insurance company. Neither is there any material to show that these two witnesses have approached the court with an ulterior motive of helping the claimants in any manner. -6-
11. The contention of the appellant that the vehicle turned turtle when the deceased and the other injured persons were sitting on the rear portion of the Dumper does not seem to have been established either in the FIR or from the evidence that has come before the Tribunal. The FIR corroborates the version of the eyewitness Chandrahas Rathore to the extent of an accident having occurred on 18.10.2013 and the two deceased persons died out of the said accident.
12. So far as the judgment of Supreme Court in case of Oriental Insurance Company Ltd. Vs. Premlata Shukla and Others, 2007(13) SCC 476 which is relied upon by the appellant Insurance Company, this court is of the opinion that the said judgment in the given factual circumstances of the present case is quite distinguishable for the reason that nowhere is there any averment, contentions, evidence or proof of the vehicle having turned turtle while it was moving. On the contrary, there is an eyewitness examined before the Tribunal himself who had said that these persons were on the track admittedly, however, at the time of accident since the vehicle got stucked in a pit, all these workers had come down from the vehicle and were standing and assisting the Driver in ensuring that the vehicle moves out of the pit and it is in that process that the Driver lost control and the vehicle turned turtle.
13. As per the version of the eyewitness and the witnesses examined before the Tribunal, the deceased persons sustained injuries when the boulders loaded on the Dumper fell upon them as they were standing near the Dumper at the time of accident. Since they were standing on the ground when the incident occurred, they would fall within the ambit of a third party.
14. However, as regards the finding of the Tribunal in fastening the liability upon the insurance company so far as one of the deceased person is concerned, this court is of the opinion that the said finding is contrary to -7- the evidence on record. There is no pleading or evidence on record to show that either of the deceased persons who was engaged by the owner and it was in the course of his employment as the Driver, Conductor or Cleaner that the accident has occurred. Neither is the claim of the claimants that the two deceased persons were employed by the owner of the vehicle for operating the said vehicle being insured under the appellants. In the absence of any specific pleading or proof, the direction to indemnify one of the persons treating them to be a passenger by the Tribunal is also contrary to the evidence which has come on record and is per se illegal.
15. As regards the liability of pay and recovery applied by the Tribunal so far as the other claimant is concerned, this court is of the opinion that there is no strong material warranting interference with the said finding.
16. Learned counsel for the appellants submits that the finding of the Tribunal in the other matter so far as not applying the principle of pay and recover is concerned, is bad in law.
17. Considering the fact that the Motor Vehicle Act and Section 166 of the Motor Vehicles Act are all welfare legislature enacted for the benefit of the claimants and the vehicle admittedly being insured though with a limited liability only policy, it would be more appropriate if the insurance company is held liable for the payment of compensation at the first instance and further granting them the liberty to recover the amount from the owner of the said offending vehicle namely Vivek Agrawal.
18. The appellant insurance company has also challenged the findings of the Tribunal so far as imposition of penal interest in the default of non payment of the awarded amount within the stipulated period.
19. Considering the specific judgment of the Supreme Court in the case of National Insurance Company Ltd. Vs. Keshav Bahadur and Others, -8- 2004(2)SCC 370, the imposition of penal interest does not seem to be proper, legal and justified. The rate of interest applicable would be that which has been assessed by the Tribunal at the rate of 7.5 percent per annum without any penalty for the entire period.
20. Both the appeals i.e. MAC Nos.389 of 2015 and MAC No.390 of 2015 therefore stand allowed in part. The insurance company would be liable to pay the compensation in respect of claimants in both the appeals, however, they would be at liberty to recover the same from the owner- Vivek Agrawal and Driver-Chatur @ Raju Nishad.
Sd/-
(P. Sam Koshy) Judge inder