Chhattisgarh High Court
MAC/1601/2009 of UNITED INSURANCE CO LTD Vs DINESH YADAV AND OTHERS on 16 December 2011
CP "" ^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAUC) N0^ ' OF 2009 b ^c.-$! ^' 1' ^^ MISCELLANEOUS APPEAL UNbER SECTION 173. MOTOR VEHICLES ACT. 1988 (? Appellant Non-Applicant No. 3 ^Ar^ Respondents ^ 1. ^; United India Insurance Co. Ltd. Branch Office,
(?
^
"-""njEisp^'CPCP
1'bc.-$! ^ ^' CHHATTISGARH AT AT^^' OF 2009 2009
IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT ATBILASPUR'MISC. APPEAUC) N0^ OF 2009 2009
MISCELLANEOUS APPEAL UNbER SECTION 173.MOTOR VEHICLES ACT. 1988
(Sl.No.[3][ to][ 4][ R/o][ Village][ Chandrapur,]Tahsil babhra, Distt. Janjgir-Champa)
Claimants
Presem^
Mr. Sanjay S Agarwal, Advocate for the appeilant in ait the appeais.Mr»Amit Kumar, Advocate for respondent Nos.l d 2 in ail the appeals.Mr, Basant Dewangan, Advocate for respondsnt-claimants in a!l the appeais.
.OR.i^RjOrd).(16th December. 2011)
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
2
Decisions referred to
In this index
1
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
1. M.A. (C) No.1599/09 arising of out of Ciaim Case No.12/09,. M.A. (C)No.1600/09 arising out of Claim Case No.13/09 and M.A. (C) No.1601/09arising out of Claim Case No.14/09 are being disposed of by this cornmonorder as all these appeais arose out of the same accident.2, Chalienge in the above appeals is to the awards dated 22.10,2009 passedby the learned Additionai Motor Accidents Claims Tribuna! Sakti, DistnctJanjgir-Champa (for short 'the Claims Tribunai'') in Claim Cases NoJ2/09,13/09 <& 14/09 thereby partly Gliowing claim applications of the ctaimants,awardina fts.4,35,000/-, Rs.1,32,000/-<& Rs.1,32,000/- respectively ascompensation and directing the appeiiant herein to first pay the amount ofcompensation to the cbimants then recover the same from the owner &the driver of the offending vehicle.No.1600/09 arising out of Claim Case No.13/09 and M.A. (C) No.1601/09arising out of Claim Case No.14/09 are being disposed of by this cornmonorder as all these appeais arose out of the same accident.2, Chalienge in the above appeals is to the awards dated 22.10,2009 passedby the learned Additionai Motor Accidents Claims Tribuna! Sakti, DistnctJanjgir-Champa (for short 'the Claims Tribunai'') in Claim Cases NoJ2/09,13/09 <& 14/09 thereby partly Gliowing claim applications of the ctaimants,awardina fts.4,35,000/-, Rs.1,32,000/-<& Rs.1,32,000/- respectively ascompensation and directing the appeiiant herein to first pay the amount ofcompensation to the cbimants then recover the same from the owner &the driver of the offending vehicle.
3. Facts, in nutshell, are that on 3,1.2009 few persons were going in thetractor-trotiey bearing registration number C&11-A-6433 & C611-A-6434respectively towards Timariaga from Viiiage Chandarpur.On the way,when they were crossing Mahanadi River Bridge, the said tractor-troiieyfell in Mahanadi River due to rash and negiigent driving of its dnver as aresult of which three persons travelfing in the said truck died and otherstractor-trotiey bearing registration number C&11-A-6433 & C611-A-6434respectively towards Timariaga from Viiiage Chandarpur.On the way,when they were crossing Mahanadi River Bridge, the said tractor-troiieyfell in Mahanadi River due to rash and negiigent driving of its dnver as aresult of which three persons travelfing in the said truck died and othershave sustained grievous injuries.Report of the accident was iodged in thePo!ice Station Chandarpur.The dependants of deceased fiaribo Uraon,Santosh Uraon<& Shyamo Uraon, who diedin the said accident, fiiedseparate claim applications under Section 166 of the Motor Vehicies ^ct,1988 (for short[lthe]Act, 1988') seeking compensation to the tune ofKs.29,70,000/-, Rs.30,30,000/- & 30,30,000/- respectively /'nfer aiia onthe ground that they were dependent on the deceGsed, who was the soleearning member in the family, and due to his death, they have sufferedloss of income.Santosh Uraon<& Shyamo Uraon, who diedin the said accident, fiiedseparate claim applications under Section 166 of the Motor Vehicies ^ct,1988 (for short[lthe]Act, 1988') seeking compensation to the tune ofKs.29,70,000/-, Rs.30,30,000/- & 30,30,000/- respectively /'nfer aiia onthe ground that they were dependent on the deceGsed, who was the soleearning member in the family, and due to his death, they have sufferedloss of income.
4, Leamed counsel for the appeiiant-Insurance Company has submitted thatin the facts and circumstances of case the deceased persons cannot betreated as third party and thus, the Claims TribunGJ has erred In passingthe direction regarding pay and recover.
5,On the other hand, learned counsel for the respondents have supportedthe impugned awards.
6. We have heard learned counsel for the parties, perused the record of theClaims Tribunal as wel! as the impugned awards.
7. Itis true that theHon'bleApex Courtin thematter of NationaiInsurance Company Vs. Swarn Singh & others reported in (2004) 3 SCC297 has directed that the Insurance Company shail first pay the amountof compensation to the claimants and thereafter recover the same fromthe owner of vehicle.The judgment of the Hon'ble Supreme Court in thematter of Swarn Singh (supra) is related to third party accident, whereasthe present is not a case of third part/ accident, In the present case thedeceased[^persons]were occupants of the tractor-troliey which was beingpiiedin[violation][ of][ conditions][ of][ the][ insurance]poiicy[as][ at][ the][ time][ of]accident the deceased traveling in the vehicle in question, whereas there ^^^ &.'^,'^ °^^^/
.-.•<^
was no sitting capacity in the vehicle in question, Therefore, the principtesiaid down in the Swarn Singh's case (supra) would not be appSicable in thefacts of the present cas©.Even otherwise,in the case of Ncits@nal£nsuranc@ CQ.Ltd. vs.Parvathnens and another reported in (2009) 8SCC 785 the question regarding[ipay]and recover' has been referred tothe Larger Bench of the Hon'ble Apex Court for decision.
8. Thus, the impugned award of the Claims Tribunal, at one hand exoneratingthe Insurance Company from its liability and at the sarne time directing topay[the][ claimants][ and][ thereafter][ recover][ from][ the][ owner,][ is][ erroneous.]
9< In the resuit, the appeais are allowed and the impugned awards directingtheappellant-InsuranceCompanyto firstthecompensationandpaythereafter recover the same from the owner A driver of vehicle-in-question[is][ herebyset][ aside][ and][ it][ is][ he!d][ that][ the][ appeiiant][ "][ Insurance]Company is not liable to pay any compensation involved in the impugnedaward to the cbimants and the same shatl be paid by the owner & driver ofvehicie-in-question only.In case any amount deposited by the appeliant-Insurance Company has been withdrawn by the cbimants/ it wili be openfor the Insurance Company to recover the same froiri the owner of vehicle,However, if the amount, so deposited, has not been withdrawn so far, theInsurance Company shail be aliowed to withdraw the same.Rest of theconditions and findings of the impugned award are hereby confirmed. It ishereby clGrified that the ciaimants are free to execute the award aaainstthe owner & driver of the vehicle-in-question. No order as to costs, lO.Certified copy as per ruies.
Sd/-G. MinhajuddinJudge
Sd/-LM.QuddusiJudge