THE PR. COMMISSIONER OF INCOME TAX vs. SMT.HEERA DEVI NEMICHAND

2024:CGHC:38181 AFR HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 413 of 2018 H.D.F.C. Ergo General Ins. Co. Ltd. Through Branch Manager, Office- Hanif Nepier Town, In Front Of Income Tax Office Jabalpur District Jabalpur (M.P.) Through Branch Office Near Chawla Complex, Devendra Nagar Road, P.S. Devendra Nagar, Tahsil And District Raipur, Chhattisgarh (Insurer Of Vehicle Tractor Registration No. C.G.10-D.A.-3749), District : Raipur, Chhattisgarh

... Appellant versus 1 - Smt. Belabai W/o Mangluram Aged About 43 Years R/o Talapar, Thana And Tahsil Pali, District

Korba,

Chhattisgarh,

District

Korba,

Chhattisgarh 2 - Mangluram S/o Rabhu Singh Aged About 46 Years R/o Talapar, Thana And Tahsil Pali, District Korba, Chhattisgarh (Claimants), District : Korba, Chhattisgarh 3 - Mukesh Kumar S/o Gopal Singh Aged About 24 Years R/o Khondhara, Thana Sipat, District Bilaspur, Chhattisgarh (Driver Of Vehicle Tractor Registration No. C.G.10-D.A.-3749 And Trolley

No.

C.G.10-D.A.-3753),

District

Bilaspur,

Chhattisgarh 4 - Rajendra Kumar S/o Ramsingh Raj R/o Khondhara, Thana Sipat, District Bilaspur, Chhattisgarh (Driver Of Vehicle Tractor Registration No. C.G.10-D.A.-3749 And Trolley No. C.G.10-D.A.-3753) ... Respondents For Appellant : Mr. Shokie Yadav, Advocate For Respondent No. 1&2 : Mr. Pravin Kumar Tulsyan, Advocate Hon'ble Shri Justice Arvind Kumar Verma Judgment on board 26.09.2024 1. Appellant/insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'Act of 1988') challenging

2 the impugned award dated 05.12.2017 in Claim Case No. 89/2016 passed by the learned Additional Motor Accident Claims Tribunal Katghora District Korba (C.G.) , whereby Tribunal allowed application filed under Section 166 of the Act of 1988 in part, calculated total compensation of Rs.5,57,000/- on account of death of Ramayan Singh/deceased. 2. Facts relevant for disposal of this appeal are that on 08.04.2016 at around 5’o clock in the evening deceased Ramayan Singh was returning from village Khondhra after leaving the para in the tractor trolley and after washing hands and face in the pond near village Chepa, he was standing to sit in the tractor when the respondent Mukesh Kumar/driver of the offending vehicle caused the accident by driving the tractor bearing registration no. as CG 10 DA 3749 and cast no. CG 10 DA 3753 rashly and negligently due to which he got seriously injured and was taken for treatment where he died during the treatment. A crime was registered against the respondent no. 3 Mukesh Kumar/driver of the offending vehicle at Police Station, Pali. 3. Respondent No. 1 mother of the deceased and Respondent No. 2 father of the deceased have filed an application under Section 166 of the Act of 1988 seeking total compensation of Rs.23,80,000/- pleading therein that on the date of accident, deceased was 16

3 years of age, earning Rs. 8,000/- per month as 'laborer'. They were dependent upon income of deceased. 4. Respondent No. 3/ driver of the offending tractor as well as Respondent No. 4/ owner of the offending tractor in their written submission submitted that the accident didn’t took place due to the rash and negligence driving of the driver of the tractor, however, it took place due to the carelessness of the deceased himself. At the time of accident the driver of the tractor/respondent no. 3 was having a valid and an effective driving licence and the respondent no. 4/owner of the tractor stated that at the time of incident, his tractor was insured with appellant/insurance company. Hence, if any amount of compensation arises out of the said accident, then they are not liable to pay the compensation amount to the appellants. Only the insurance company/appellant is liable to pay the amount of compensation. Hence prays for dismissal of the appeal. 5. Whereas appellant/ Insurance Company has filed its written statement stating that at the time of accident the driver of the offending tractor was not having a valid and effective license, permit, fitness and registration and the trolley was not having the sitting capacity. Hence, appellant in his written statement has pleaded to keep it aside from any kind compensation that arises out

4 of this incident. He further stated that at the time of incident, the deceased was not earning anything. 6. Upon appreciation of pleadings and evidence placed on record by respective parties, Tribunal held that deceased died on account of rash and negligent driving of the tractor driver due to which he suffered grievous injuries and as a consequence died on the spot. Accordingly, Tribunal allowed application in part, awarded Rs.5,57,000/- with interest @ 7% per annum, fastened liability upon Appellant/Insurance Company to pay the amount of compensation. 7. Learned counsel appearing for the appellant submits that the findings of the learned tribunal as mentioned in the award is bad in law, the risk of the deceased was not covered under the insurance policy and this has not been challenged neither by the claimants nor by the driver/owner of the vehicle. 8. He further contended that the deceased is not falling within the scope of third party as he was traveling in the offending vehicle. The learned tribunal ought to have exonerated the appellant as the deceased was traveling in the offending vehicle. The offending vehicle is not a private car and nobody can travel on it except the driver. The trolley was not insured by the appellant. The learned tribunal has also ignored the provision of Section 147 of the Act. The tribunal ought to have held that as per the provision of Section

5 147 of the act, risk of deceased is not covered and the deceased is not falling within the definition of a third party. 9. Learned counsel appearing for the respondent No.1 and 2 opposes the prayer made by the learned counsel for the appellant and the decision rendered by the Trial Court with respect to the insurance policy coverage is legal and fair, rather it is just and proper in the given facts and circumstances of the case and does not call for any interference. 10. Learned counsel for respondent no. 3 and 4 filed a cross objection/cross appeal under Order 41 Rule 22 of Civil Procedure Code for setting aside the award dated 05.12.2017. However, learned counsel for respondent no. 3 and 4 did not appeared when the matter was called up for hearing. 11. I have heard learned counsel for the parties at length, considered their rival submissions and perused the records with utmost circumspection. 12. Section 147 of the Motor Vehicles Act 147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - (a)is issued by a person who is an authorised insurer; and (b)insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i)against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods

6 or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place; (ii)against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place. Explanation. - For the removal of doubts, it is hereby clarified that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place .(2)Notwithstanding anything contained under any other law for the time being in force, for the purposes of third party insurance related to either death of a person or grievous hurt to a person, the Central Government shall prescribe a base premium and the liability of an insurer in relation to such premium for an insurance policy under sub- section (1) in consultation with the Insurance Regulatory and Development Authority. (3)A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected, a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4)Notwithstanding anything contained in this Act, a policy of Insurance issued before the commencement of the Motor Vehicles (Amendment) Act, 2019 shall be continued on the existing terms under the contract and the provisions of this Act shall apply as if this Act had not been amended by the said Act. (5)Where a cover note issued by the insurer under the provisions of this Chapter or the rules or regulations made thereunder is not followed by a policy of insurance within the specified time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority or to such other authority as the State Government may prescribe. (6)Notwithstanding anything contained in any other law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. 12. PW-02 Mannu Lal(eye witness) has clearly stated in his statement

7 that on the day of incident he was on a motor cycle and was going from Pali to Bilaspur, at the same time deceased Ramayan Singh was standing near the road in Gram Chepa. The driver of the tractor coming from Bilaspur to Pali dashed Ramayan Singh. The driver was driving the tractor in a rash and negligent manner and hit the deceased due to which he received severe injuries and was consequently took to hospital for treatment. Ramayan Singh was not crossing the road, neither the accident took place due to the fault of Ramayan Singh. 13. From the deposition made by the eye witness PW-02, it is crystal clear that the deceased was not trying to sit in the tractor, in fact he was standing near the road and due to the rash and negligent driving of the driver of the tractor the deceased got dashed and received grievous injuries. Therefore, the deceased was a third party, his risk was covered under Section 147 of the Motor Vehicles Act. 14. So far as of Section 2(21) in The Motor Vehicles Act, 1988 is concerned: (21) light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilo grams; [(21-A) manufacturer means a person who is engaged in the manufacture of motor vehicles;] Section 2(16) in The Motor Vehicles Act, 1988 (16) heavy goods vehicle means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilo grams;

8 15. On bare perusal of the record it transpires that the learned counsel for the appellant does not produced any kind of evidence which can depict that the offending vehicle was a Heavy goods Vehicle whose weight exceeds 12,000 kilo gram. Even it is also not evident that the offending vehicle exceeded 7,500 kilo gram. Tribunal has admitted the fact that the driver of the offending vehicle was possessing the valid and an effective driving license at the time of accident. Therefore, the offending tractor is in the category of light motor vehicle, hence it cannot be said that there has been a breach of policy. Thus, the liability on the appellant cannot be said to be contrary to the law. 16. Thus, the present appeal deserves to be and is hereby dismissed. 17. Accordingly, the miscellaneous appeal is disposed of on being dismissed. No order as to cost(s). Sdsd/-

(Arvind Kumar Verma)

Judge

Alfiza