Ghanshyam Sahu Vs Pramila Bai

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 1523 of 2016

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Ghanshyam Sahu S/o Ishwar Sahu, Aged About 38 Years R/o Village Lahod, Police Station Kasdol, District BalodabazarBhatapara, Chhattisgarh. (Driver of Offending Vehicle Tractor No. C.G.04-DT-3844 and Trolly No. C.G.-04-ZG-2604).

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Kholbahra Wrongly Mentioned As Khorbahra Since Deceased Through Legal Heirs and Supurddar Jagmat Bai, Wd/o Kholbahra Sahu, Aged About 50 Years, R/o Village Lahod, Police Station Kasdol, District Balodabazar-Bhatapara, Chhattisgarh. (Legal Heir and Supurddar of Offending Vehicle Tractor No. C.G.04-DT-3844).

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Hetram Sahu S/o Bhauram Sahu, Aged About 50 Years R/o Village Lahod, Police Station Kasdol, District BalodabazarBhatapara, Chhattisgarh. (Sanchalak and Supurddar of Offending Vehicle Tractor No. C.G.04-DT-3844 and Trolly No. C.G.-04-ZG-2604).

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---- Appellants

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Versus

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Pramila Bai Wd/o Heerasingh Vishwakarma, Aged About 28 Years R/o Village Lahod, Police Station Kasdol, District Balodabazar-Bhatapara, Chhattisgarh.

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Amrit Bai Wd/o Khorbahra Vishwakarma, Aged About 65 Years R/o Village Lahod, Police Station Kasdol, District BalodabazarBhatapara, Chhattisgarh.

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Rakesh S/o Late Heerasingh Vishwakarma, Aged About 10 Years Minor Through Natural Guardian Mother Pramila Bai, Wd/o Heerasingh, R/o Village Lahod, Police Station Kasdol, District Balodabazar-Bhatapara, Chhattisgarh.

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Jageshwari D/o Late Heerasingh Vishwakarma, Aged About 7 Years Minor Through Natural Guardian Mother Pramila Bai, Wd/o Heerasingh, R/o Village Lahod, Police Station Kasdol, District Balodabazar-Bhatapara, Chhattisgarh.

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Branch Manager, S.B.I. General Insurance Company Limited, Branch Office At 4th Floor, Pachpedi Naka, Near Pujari Park, Dhamtari Road, Raipur, District Raipur, Chhattisgarh. (Insurer of Offending Vehicle Tractor No. C.G.-04-DT-3844 and Trolly No. C.G.-04-ZG-2604).

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---- Respondents

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MAC No. 1433 of 2016

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S.B.I. General Insurance Company Limited Through Branch Manager, Pujari Park Complex, 4th Floor, Pachpedi Naka, Police Station Tikrapara, Distt. Raipur, Chhattisgarh. (Insurer of Vehicle Tractor No. C.G.-04-DT-3844).

---- Appellant

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Versus

Pramila Bai Wd/o Late Hirasingh Vishwakarma, Aged About 28 Years R/o Village Lahod Police Station Kasdol Dist. Balodabazar-Bhatapara, Chhattisgarh.

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Minor Rakesh S/o Late Hirasingh Vishwakarma, Aged About 10 Years Minor Represented Through Pramila Bai Respondent No.1, R/o Village Lahod Police Station Kasdol Dist. BalodabazarBhatapara, Chhattisgarh.

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Jogeshwari D/o Late Hirasingh Vishawakarma, Aged About 7 Years Minor Represented Through Pramila Bai Respondent No.1, R/o Village Lahod Police Station Kasdol Dist. BalodabazarBhatapara, Chhattisgarh.

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Ghanshyam Sahu S/o Ishwar Sahu, Aged About 38 Years R/o Village Lahod Police Station Kasdol District BalodabazarBhatapara, Chhattisgarh. (Driver of Vehicle Tractor No. C.G.-04DT-3844).

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Jagmat Bai W/o Kholhara Sahu, Aged About 50 Years R/o Village Lahod Police Station Kasdol District BalodabazarBhatapara, Chhattisgarh.

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Hetram Sahu S/o Bhauram Sahu, Aged About 50 Years R/o Village Lahod Police Station Kasdol District BalodabazarBhatapara, Chhattisgarh. (Legal Heirs of Vehicle Owner Late Khorbahra S/o Bhauram Sahu, Vehicle Tractor No. C.G.-04-D T-3844).

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---- Respondents

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For Appellant(s)	: Mr. Dasrath Kushwaha, Adv. in MAC No. 1523/2016. Mr. Tanmay Rai, Adv. on behalf of Mr. N.K. Thakur, in MAC No. 1433/2016.
For Respondent No. 5	: Mr. Tanmay Rai, Adv. on behalf of Mr. N.K. Thakur, in MAC No. 1523/2016.
For Respondents No. 4 to 6	: Mr. Dasrath Kushwaha, Adv. in MAC No. 1433/2016.
For Other Respondents	: None.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment o n Board

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02/ 05/ 2024

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MAC No. 1523/2016 has been preferred by the Driver/Owner of the offending vehicle and MAC No. 1433/2016 has been preferred by the Insurer of the offending vehicle. As both appeals

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arise out of the same judgment, they are being heard and disposed of by this common order.

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Both the appeals filed against the award dated 30.07.2016 passed by the 3^rd Additional Motor Accident Claims Tribunal, Balodabazar, District – Balodabazar-Bhatapara (C.G.) in Motor Accident Claim Case No. 143/2014.

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As against compensation of Rs.11,76,000/- claimed by the claimants by filing claim application under Section 166 of the Motor Vehicles Act (henceforth ‘the Act’) for death of Heerasingh in the motor accident on 18.09.2014, the Tribunal awarded a total sum of Rs.6,92,000/-along with interest at the rate of 7% per annum till its actual payment.

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The Tribunal, on due consideration of the evidence, held that the accident had occurred due to rash and negligent driving of tractor bearing registration No. CG-04-DT-3844 by its driver Ghanshyam Sahu, i.e. appellant No. 1 in MAC No. 1523/2016 and respondent No.4 in MAC No. 1433/2016; deceased Hirasingh sustained grievous injuries and died in the said accident; further, the Tribunal found in para 33 that deceased Hirasingh was sitting on the mudguard of the tractor along with other 4-5 persons and 20-25 persons were also sitting in the trolley, thus the tractor was driving with the breach of policy condition, hence the driver and owner of the vehicle/tractor were held liable to pay compensation and the tractor was insured with the appellant/insurance company in MAC No. 1433/2016, therefore, Tribunal has directed to pay the awarded compensation to the insurance company and also directed to

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recover the same from the driver & owner of the said vehicle/tractor as the tractor was driving in the breach of policy condition.

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Learned counsel appearing for the appellant in MAC No. 1523/2016 submits that the learned claims Tribunal has erred in fastening the liability upon the appellants herein, despite there being sufficient evidence available on record to fasten the liability upon the respondent No. 5/insurance company. He further submits that the learned claims Tribunal has failed to see that the policy is covered and the appellants No. 1 to 3 have not committed any breach of policy, therefore, liability should go on the head of the Insurance company, the appeal may be allowed, and the appellants are entitled to be exonerated to pay compensation.

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Learned counsel appearing for respondent No. 5/Insurance Company, on the other hand, so far as the liability of payment of compensation is concerned, supported the award impugned and submitted that in the facts and circumstances of the case, the Tribunal has rightly fastened the liability of payment upon the driver and owner of the tractor/vehicle as the tractor was driven by its driver in the breach of policy conditions, which does not call for any interference.

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Learned counsel appearing for the appellant/insurance company in MAC No. 1433/2016 submits that the learned Tribunal itself found that the vehicle was being used on hire and the deceased and many persons were travelling in tractor and trolley which was also attached with the tractor in which 20-25

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persons were travelling but held that the deceased is a third party and hence directed that the appellant is liable to pay compensation first and then recover it from the respondents No. 6 & 7. The Tribunal has ignored the basic principle of the Evidence Act. The order of the Tribunal is prima facie bad in law. The entire approach of the Tribunal is arbitrary. The deceased does not fall within the scope of a third party and admittedly he was travelling in a tractor and many persons were also travelling in a trolley. He further submits that the Tribunal has ignored the provision of Section 147 of the Act. The Tribunal ought to have held that as per the provision of Section 147 of the Act, the risk of the deceased is not covered and the deceased does not fall within the definition of a third party. Hence, the order in question is liable to be set aside and the owner and his legal heirs are liable to pay compensation to the claimants directly.

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Learned counsel for respondents No. 4 to 6 in MAC No. 1433/2016, so far as the liability of pay and recover is concerned, supported the impugned award and submits that the vehicle/tractor is covered with the policy, therefore, in the facts and circumstances of the case the Tribunal has rightly held liable to the insurance company to pay compensation.

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I have heard learned counsel for the parties and perused the record of the Tribunal including award impugned.

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Recently, in the matter of Amrit Paul Singh and another v.

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Tata AIG General Insurance Company Limited and Others , reported in (2018) 7 SCC 558 , Hon’ble Supreme Court has held as under:

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“We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.”

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Considering the aforesaid principle of law laid down by the Hon’ble Supreme Court in the subject matter and also considering the facts and circumstances of the case in hand, the finding of the Tribunal is correct on the basis of the evidence available on record Accordingly, I do not find any scope of interference in the award impugned.

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For the reasons mentioned hereinabove, these appeals filed by the appellants, on the face, is devoid of merit and the same is accordingly liable to be and is hereby dismissed.

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Sd/- (Sanjay Kumar Jaiswal) Judge

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H. L. Sahu

Ghanshyam Sahu v. Pramila Bai

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Ghanshyam Sahu v. Pramila Bai

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