Icici Lombard General Insurance Company Limited, Vs Smt. Ramkali Dhiwar

4 - Khemraj Dhiwar S/o Late Shri Tilak Dhiwar, Aged About 2 Years No.2 to 4 all are Minor, Represented Through Mother Smt. Ramkali Dhiwar / Respondent No. 1

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5 - Hukum Dhiwar, S/o Late Shri Budhuram Diwar, Aged About 46 Years All are R/o House No.-591, Bajrang Chowk, Doomar Talab, Amanaka, Police Station Mohba Bazar, District Raipur Chhattisgarh.

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6 - Mayur Khute, S/o Shri P.R. Khute, Aged About 29 Years R/o House No. A/10, Arjun Vihar, Hirapur Road, Mohba Bazar, Police Station Amanaka, District Raipur Chhattisgarh. (Owner- Cum - Driver)

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….Respondents

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For Appellants : Mr. Sourabh Sharma, Advocate along with Mr. Sourabh Gupta, Advocate For Respondents : None present though served.

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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22/07/2025

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BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.08.05 10:55:43 +0530

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Appellant/Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) challenging the impugned award dated 07.03.2020, passed in Claim Case No. 53

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of 2016, whereby the learned 8^th Additional Motor Accident Claims Tribunal, Raipur, District – Raipur (C.G.) (for short ‘the Claims Tribunal’) has awarded compensation of Rs.11,27,272/- to the claimants in death case.

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Facts relevant for disposal of this appeal are that claimants filed an application under Section 166 of the Act of 1988 claiming total compensation of Rs.36,20,000/- under different heads on account of the death of Tilak Dhiwar, who died in the road accident, pleading therein that on 11.05.2014, while Tilak Dhiwar was going to get the diesel filled in the offending vehicle bearing No.C.G.-04-ZD-5383 (hereinafter referred to as ‘the offending vehicle’), owned and driven by non-applicant No.1 it met with an accident due to rash and negligent driving of offending vehicle by non-applicant No.1. As a consequence, Tilak Dhiwar sustained fatal injuries. He was initially taken to the Government Hospital at Berla, due to severity of his condition, was referred to Suyash Hospital at Raipur. He was admitted there on 12.05.2014 and succumbed to his injuries on 16.05.2014 during treatment. It was further pleaded that at the time of the accident, deceased was a 33-year-old able-bodied man employed as a driver, earning monthly income of ₹10,000.

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Non-applicant No.1 filed his reply to the claim application denying the averments made therein. It was pleaded that claim was filed on false and fabricated grounds exaggerating the amount of compensation. It was further pleaded that on the date of accident, offending vehicle was insured with non-applicant No.2.

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Non-applicant No.2 also filed its reply to the application resisting the claim. It was pleaded that the deceased died in a accident; however, this has been falsely presented as a road accident. Deceased was sitting in the platform of the vehicle, whereas there is no sitting arrangement in the platform of the said vehicle, hence, the accident is due to self negligence of deceased himself. At the time of accident, non-applicant No.1 was not possessing valid and effective driving license as such offending vehicle was being plied in breach of conditions of insurance policy without any license, fitness and permit.

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The learned Claims Tribunal, upon considering the pleadings and evidence brought on record by the respective parties, partly allowed the claim application in part and awarded compensation of ₹11,27,272/- and fastened liability upon the appellant/Insurance Company holding that there was no breach of conditions of insurance policy.

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Learned counsel for appellant/Insurance Company submits that this appeal is filed challenging the impugned award on the ground that learned Claims Tribunal erred in fastening liability upon the appellant/Insurance Company recording a finding on Issue No.2 that there was no breach of policy conditions. He contended that as per the facts and the evidence available on record, it is clearly appearing that the offending vehicle which Tata Ace No. C.G.04—JD-5383 is goods carriage vehicle and at the time of accident, deceased was travelling on the platform (backside) of the vehicle, where there was no sitting space as such there was breach of policy conditions. The appellant/Insurance Company has not accepted any premium towards

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the passenger travelling in goods vehicle. In support of his contention, he placed reliance upon the decision in case of National Insurance

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Co. Ltd. v. Cholleti Bharatamma, (2008) 1 SCC 423.

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I have heard learned counsel for the parties and also perused the records of the claim case.

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Perusal of the pleadings made in the claim application would show that deceased was traveling on the platform of the offending vehicle, which was driven by non-applicant No.1, driver of the offending vehicle rashly and negligently due to which, deceased fell down from the offending vehicle, suffered grievous injuries and later on succumbed to the injuries.

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In the evidence, Ramkali (A.W.-1) has clearly admitted that at the time of accident, her husband was travelling on the platform of the offending vehicle. In the FIR, Ex.P-8, also it is mentioned that at the time of accident, deceased was travelling on the platform of the offending vehicle. From the facts submitted in the claim application and the evidence of the Ramkali (A.W.-1) as also the document (Ex.P8), copy of FIR it is apparent that at the time of accident, deceased was traveling on platform of offending vehicle. Copy of insurance policy is filed as Ex.D-2, wherein, the premium was charged for basic third party liability, legal liability for the employee and own damage. Premium covering risk for other person is not paid or is mentioned. There is no obligation upon the owner or the insurance company to pay or to accept the premium with respect to the passenger at the time of insurance of the goods vehicle.

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Hon’ble Supreme Court in case of Cholleti Bharatamma (supra) has observed that even if the owner of luggage if travelling in the vehicle he must travel only in cabin of vehicle and observed thus :

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17. In the aforementioned case, accident took place on 24-121993. The respondents herein filed a claim petition claiming compensation for the death of one Kota Venkatarao who had allegedly paid a sum of Rs 20 for travelling in the lorry. The Tribunal held:

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“In the absence of rebuttal evidence from the deceased and some others who travelled in the said vehicle in the capacity of owner of the luggage which was carried by them at the time of accident, it cannot be said that it is a violation of the policy, since it is not fundamental breach so as to afford to the insurer to eschew the liability altogether as per the decision in B.V. Nagaraju v. Oriental Insurance Co. Ltd. [(1996) 4 SCC 647 : AIR 1996 SC 2054] ”

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18. The High Court, however, relying upon Satpal Singh [(2000) 1 SCC 237 : 2000 SCC (Cri) 130 : 2000 ACJ 1] opined:

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“This issue raised in this appeal is covered by the decision of the Supreme Court in New India Assurance Co. Ltd. v. Satpal Singh [(2000) 1 SCC 237 : 2000 SCC (Cri) 130 : 2000 ACJ 1] wherein Their Lordships held that under the Motor Vehicles Act, 1988 all insurance policies covering third-party risks are not required to exclude gratuitous passengers in the vehicles though the vehicle is of any type or class. Following the same, the appeal is dismissed. No order as to costs.

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19. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle.

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In the case at hand even the deceased was not owner of the goods, but he took lift in the vehicle which also shows that he was not traveling in the vehicle as an employee. He was travelling on the platform of the vehicle. Therefore, the risk of deceased was not covered under the policy and in fact at the time of accident, the vehicle was being driven in breach of conditions of insurance policy.

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For the foregoing discussions, the appeal is allowed and the appellant/Insurance Company is exonerated from the liability to indemnify the insured.

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Now the liability to satisfy the amount of compensation is upon the respondent No.6/Non-applicant No.1 (owner) of the offending vehicle.

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At this stage, learned counsel for appellant submits that pursuant to the interim order passed by this Court on 13.04.2021, the appellant Insurance Company has deposited 75% of the compensation awarded by the learned Claims Tribunal, therefore, the appellant/Insurance Company be permitted to recover the said amount from the owner of the offending vehicle/non-applicant No.1.

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Considering the submission of learned counsel for appellant/Insurance Company and interim order dated 13.04.2021, in the facts of the case, the appellant would be at liberty to recover the amount so deposited pursuant to the interim order from the non-applicant No.1, owner of the offending vehicle.

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Accordingly, this appeal is allowed.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Icici Lombard General Insurance Company Limited, v. Smt. Ramkali Dhiwar

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Icici Lombard General Insurance Company Limited, v. Smt. Ramkali Dhiwar

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