Shyam Kumari @ Shyambai Patel Vs Hichchharam Nishad

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NAFR

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Digitally VISHAKHA signed by BEOHAR VISHAKHA BEOHAR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 229 of 2018

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1 - Iffco Tokiyo General Insurance Company Limited, 2nd Floor, Shop No. 205, M. M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 1, Raipur, District- Raipur, Chhattisgarh. ...................(Insurer)., District : Raipur, Chhattisgarh

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--- Appellant

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versus

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1 - Hichharam Nishad S/o S/o Tularam Aged About 55 Years R/o Village Tarkela, Tahsil, And District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh

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2 - Balmati W/o W/o Hichharam Nishad Aged About 50 Years R/o Village Sarwani, Post- Naurangpur, Tahsil And District- Raigarh, Chhattisgarh. ................(Claimants)., District : Raigarh, Chhattisgarh 3 - Shyam Kumar @ Shymbai Patel W/o W/o Sunderlal Aged About 42 Years R/o Village Tarkela, Tahsil, And District- Raigarh, Chhattisgarh. .................(Owner)., District : Raigarh, Chhattisgarh

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--- Respondent(s)

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MAC No. 310 of 2018

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1 - Shyam Kumari @ Shyambai Patel W/o Sundar Lal Aged About 42 Years R/o Village Tarkela, Tahsil And District Raigarh, Chhattisgarh (Owner Of Tractor Bearing No. C.G./13 D-1988), District : Raigarh, Chhattisgarh --- Appellant

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Versus

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1 - Santlal Sidar S/o Dukalu Aged About 42 Years Occupation Dependent, R/o Village Sarvani Post Nourangpur, Tahsil And District

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2

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Raigarh, Chhattisgarh (Applicant No.1/ Claimant), District : Raigarh, Chhattisgarh

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2 - Pulkitmati W/o Santlal Sidar Aged About 39 Years Occupation House Wife, R/o Village Sarvani Post Nourangpur, Tahsil And District Raigarh, Chhattisgarh (Applicant No.2/ Claimant), District : Raigarh, Chhattisgarh

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3 - Branch Manager Iffco Tokio General Insurance Company Ltd. 3rd Floor Shop No. 47, Lalganga Mool, G.E.Road, Raipur, Tahsil And District Raipur, Chhattisgarh (Non-Applicant No.2), District : Raipur, Chhattisgarh --- Respondent(s)

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MAC No. 297 of 2018

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1 - Shyam Kumari @ Shyambai Patel W/o Sundar Lal Aged About 42 Years R/o Village Tarkela, Tahsil And District Raigarh, Chhattisgarh (Owner Of Tractor Bearing No. C.G./13 D-1988), District : Raigarh, Chhattisgarh --- Appellant

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Versus

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1 - Hichchharam Nishad S/o Tularam Aged About 55 Years Occupation Dependent R/o Village Sarvani Post Nourangpur, Tahsil And District Raigarh, Chhattisgarh (Claimant), District : Raigarh, Chhattisgarh

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2 - Balmati W/o Hichchharam Nishad Aged About 50 Years Occupation House Wife, R/o Village Sarvani Post Nourangpur, Tahsil And District Raigarh, Chhattisgarh (Claimant), District : Raigarh, Chhattisgarh

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3 - Branch Manager Iffco Tokio General Insurance Company Ltd. 3rd Floor Shop No.47, Lalganga Mool, G.E.Road, Raipur, Tahsil And District Raigarh, Chhattisgarh (Insurer), District : Raigarh, Chhattisgarh

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... Respondent(s)

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For Appellant(s) : Mr. Pravesh Sahu, Advocate on behalf of Mr. P.R. Patankar, Advocate. For Respondent No. 3 : Mrs. Kiran Jain, Advocate For Respondents No. 1 & : Mr. Manoj Kumar Jaiswal, Advocate

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Hon’ble Mr. Justice Amitendra Kishore Prasad

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Order on Board

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17/11/2025

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Since all the above-captioned arise out of the same accident that occurred on 27.10.2009, they are being heard together and disposed of by this common judgment.

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All these appeals have been filed by the Insurance Company and owner of the offending vehicle respectively under Section 173 of the Motor Vehicle Act, 1988, against the award dated 25.07.2017 passed by the 3^rd Additional Motor Accidents Claims Tribunal to the Court of 1^st Additional Motor Accident Claims Tribunal, District Raigarh (C.G.), in Claim Case No. 32/2014 whereby an amount of Rs.7,50,000/- with interest @ 9% per annum has been awarded while fastening liability upon the Insurance Company and owner of the offending vehicle jointly and severally. The Tribunal further held that the Insurance Company shall first pay the amount of compensation to the claimants and then recover the same from the owner of the offending vehicle.

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As per averments made in the claim petition, on 27.10.2009, deceased- Birbal along with other persons was travelling in a tractor for the purpose of unloading bricks at village Tundri and while returning to village Sarwani, the tractor bearing registration number CG13-D-1988 (hereinafter called as ‘offending vehicle’) driven by Laxmi Narayan (died) in a rash and negligent manner,

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fell down from the bridge at village Lityapali, as a result of which, deceased- Birbal sustained grievous injuries and died on the spot. Thereafter, the claimants, being the father and mother of the deceased and his legal representatives, filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs. 29,35,000/- under various heads on account of death of their son Birbal. At the time of the accident, the offending vehicle was owned by non-applicant No.1- Shyam Kumari @ Shyambai Patel and insured with the non-applicant No.2- Insurance Company.

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The learned claims Tribunal, after considering the evidence led by both the parties, passed an award as mentioned in para 1 of this judgment.

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Learned counsel for the Insurance Company in MAC No. 229 of 2018 submits that the Tribunal has erred in fastening liability upon the Insurance Company despite clear and established breaches of the terms and conditions of the insurance policy. It is urged that at the time of the accident, the offending vehicle was being plied in violation of policy conditions, as the deceased was travelling on the engine of the tractor, which has no seating capacity. Such an act constitutes a fundamental breach, rendering the insurer not liable for compensation. It is further contended that although a premium of ₹100/- had been paid, but the policy coverage was limited only to labourers or authorized persons to the extent of

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₹2,00,000/-, and no additional premium had been paid for any other occupants. He also submits that the deceased was an unauthorized occupant and that there was no coverage under the policy for such a person. Hence, the Tribunal ought to have saddled liability exclusively upon the owner and driver of the offending vehicle. He also submits that the Tribunal failed to appreciate that the insurer had not undertaken any contractual liability beyond the statutory limit of ₹2,00,000/-, and therefore, fastening full liability upon the Insurance Company is per se illegal. Accordingly, it is prayed that the impugned judgment be modified and the liability of the Insurance Company be restricted only to the extent of ₹2,00,000/-.

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Learned counsel for the owner of the offending vehicle in MAC No. 297 of 2018 and MAC No. 310 of 2018 submits that the learned Claims Tribunal has wrongly fastened liability upon the owner jointly and severally along with the Insurance Company. It is contended that, at the time of the accident, the offending vehicle was duly insured, and therefore the primary liability to satisfy the award ought to rest with the Insurance Company.

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I have heard learned counsel for the parties and perused the record.

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Upon perusal of the record, it is evident that the Tribunal has rightly held that the driver- Laxminarayan was in possession of a valid driving licence at the time of the accident. The Insurance

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Company failed to adduce any evidence to rebut this finding or to demonstrate that the driver was not duly licensed. With regard to the other grounds urged by the Insurance Company, particularly the contention relating to non-payment of premium, the record shows that a premium of ₹100/- had been paid by the owner of the offending vehicle, and the insurance policy provided coverage only to the extent of ₹2,00,000/-. It is also clear that no premium was paid for any additional or unauthorized occupants beyond those expressly covered under the policy. In this backdrop, the Tribunal erred in fastening full liability upon the Insurance Company and directing it to pay the entire compensation and thereafter recover the amount from the owner, particularly when the deceased was found to be sitting on the engine of the tractor, which has no seating capacity, thus constituting a clear breach of the policy conditions. Since no additional premium was paid for labourers or unauthorized passengers, the Insurance Company cannot be held liable and the breach of the insurance policy stands duly established. Consequently, the owner of the offending vehicle has been rightly saddled with liability and no interference with this finding is warranted. However, considering the overall facts and circumstances of the case, and in view of the principles laid down by the Hon’ble Supreme Court in several decisions, the Insurance Company is directed to pay only ₹2,00,000/-, being the maximum coverage available under the policy, at the first instance and thereafter recover the same from the owner of the

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offending vehicle. The remaining compensation amount of ₹5,50,000/- along with interest as awarded by the learned Claims Tribunal, shall be paid by the owner of the offending vehicle.

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Accordingly, all the above-captioned appeals filed by the Insurance Company and owner of the offending vehicle are allowed in part. Rest of the conditions of the impugned award shall remain intact.

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sd/- (Amitendra Kishore Prasad)

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Judge

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Vishakha

Shyam Kumari @ Shyambai Patel v. Hichchharam Nishad

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Shyam Kumari @ Shyambai Patel v. Hichchharam Nishad

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