Chattisgarh High Court
Branch Manager, Shriram General ... vs Smt. Reshma Bai Dheemar on 7 January, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.01.08
10:31:22 +0530
2025:CGHC:922
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1232 of 2016
Reserved on 02.01.2025
Delivered on 07.01.2025
Branch Manager, Shriram General Insurance Company Limited
4th Floor, Maruti Heights, Sky Automobiles, G.E. Road, Raipur,
Chhattisgarh, Head Office Shriram General Insurance Company
Limited, E-8, EIIP SICO Industrial Area, Sitapur, Jaipur, Rajasthan
......... Insurer
... Appellant
versus
1. Smt. Reshma Bai Dheemar W/o Late Bhagwati Prasad Dheemar,
Aged About 25 Years R/o Village Dhamdha, (Dheemar Para
Dhamdha) District- Durg, Chhattisgarh
2. Ku. Heteshwari Dheemar D/o Late Bhagwati Prasad Dheemar,
Aged About 8 Years Minor Through Natural Guardian Smt.
Reshama Bai Dheemar W/o Late Bhagwati Prasad Dheemar
Respondent No.1, R/o Village Dhamdha, Dheemar Para
Dhamdha, District- Durg, Chhattisgarh
3. Ku. Bhojeshwari Dheemar D/o Late Bhagwati Prasad Dheemar,
Aged About 3 Years Minor Through Natural Guardian Smt.
Reshama Bai Dheemar W/o Late Bhagwati Prasad Dheemar
Respondent No.1 R/o Village Dhamdha, Dheemar Para Dhamdha
District- Durg, Chhattisgarh .................. Claimants
4. Gajadhar Chandel S/o Dashrathlal Chandel, Aged About 30 Years
Occupation- Driver, R/o Village Dhamdha, Post Dhamdha, P.S.
And Tehsil, District- Durg, Chhattisgarh ................. Driver
5. Pyarelal Dheemar S/o Derharam Dheemar, Aged About 56 Years
Occupation- Transporting, R/o Village Dhamdha, Rajendera
Prasad Ward (Ward No.3) Post Dhamdha, P.S. And Tehsil-
Dhamdha, District- Durg, Chhattisgarh ............... Owner
... Respondent(s)
For Appellant : Mr. Sourabh Sharma, Advocate, along with
Mr. Sourabh Gupta, Advocate
For Respondent(s) 1 to 3 : Mr. Goutam Khetrapal, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal
CAV ORDER
1. This appeal has been preferred by the Insurance Company under
Section 173 of the Motor Vehicles Act, 1988, challenging the award
dated 20.06.2016 passed by 6th Additional Motor Accident Claims
Tribunal, Durg, Chhattisgarh in Claim Case No.39/2015.
2. The facts necessary for disposal of the present appeal, in brief, are
that on 26.04.2012, deceased Bhagwati Prasad Dheemer who
worked as a helper (cleaner) in the offending vehicle i.e. Mahindra
Pickup bearing registration No. CG 04 J 1505 was coming from
Kugda to Dhamdha in the said vehicle. Respondent No.4 Gajadhar
Chandel while driving the said Mahindra Pickup in a rash and
negligent manner caused an accident near Chorha Nala by hitting
vehicle No. CG 04 T 9412 coming from the front, as a result of
which, Bhagwati Prasad Dheemer suffered grievous injuries. He
was immediately taken to Govt. Hospital Durg for treatment where
the doctor declared him dead. Upon report being made in this
regard, crime was registered against driver Gajadhar Chandel at
PS Kumhari, District-Durg (CG). The claimants who are the wife &
daughters of the deceased preferred an application before the
Tribunal claiming total compensation of Rs.39,05,000/-. Learned
Tribunal, after considering the evidence and documents brought on
record, calculated the total compensation as Rs.12,53,000.
However, considering 50% contributory negligence on the part of
driver of the offending vehicle in which the deceased was travelling
as a cleaner, the Tribunal awarded 50% of the total compensation
i.e. Rs.6,26,500/- in favour of the claimants with interest @ 9% per
annum, from the date of application till its realization against which,
the present appeal has been filed by the Insurance Company.
3. Learned counsel for the appellant Insurance Company submits that
on the date of incident the driver did not have a valid and effective
driving licence as the vehicle in question was a transporting vehicle
whereas the driver was holding a licence of light motor vehicle
(LMV). The next argument of the Insurance Company is that the
owner of the offending vehicle respondent No.5 Pyarelal Dheemar
is the father of the deceased and the claimants party have failed to
prove the fact that the deceased was working in the offending
vehicle as a cleaner. He submits that as the deceased was
travelling in the offending vehicle as an unauthorised passenger, he
would not fall within the category of third party. Hence, the
Insurance Company is not liable for payment of compensation.
4. On the other hand, learned counsel appearing for the claimants
submits that the finding of the Tribunal regarding liability is just and
proper and does not require any interference.
5. Heard learned counsel for the parties and perused the record.
6. It is undisputed that the vehicle in question was insured and its
insurance policy has been exhibited as Ex. D-3. The first argument
of the appellant insurance company is that the driver did not have a
valid driving license. The driver Gajadhar Chandel had a driving
license of LMV and as per policy Exhibit D-3, the weight of the
vehicle in question is stated to be 2820 kg. As per the provisions of
Section 2(21) of MV Act, all vehicles whose weight is less than
7500 Kgs. are to be treated as 'Light Motor Vehicle'. Therefore, the
offending vehicle would fall under LMV category and the driver at
the time of accident did have a licence to drive Light Motor Vehicle
(LMV). Hence, it would be covered by the decision of the Hon'ble
Supreme Court in the case of Mukund Dewangan v. Oriental
Insurance Company Limited reported in (2017) 14 SCC 663. The
first objection of the insurance company that the insurance
conditions were violated due to the absence of a valid driving
license is not acceptable. Therefore, the first objection is rejected.
7. The second objection of the insurance company is that the
claimants party has concealed the fact in the pleadings that the
deceased Bhagwati Prasad was the son of Pyare Lal Dheemar i.e.
the owner of the vehicle Mahendra Pickup. The burden of proof
was on the claimants to establish that the deceased Bhagwati
Prasad was employed as a worker in the offending vehicle and was
working as a cleaner because he does not fall in the category of
third party and the claimants have failed to prove this fact.
Therefore, the insurance company is not responsible for payment
of the compensation amount. The risk of the deceased is not
covered as per the policy. In support of its argument, the judgment
dated 21/07/2023 passed by the Hon'ble Andhra Pradesh High
Court in M.A.C.M.A. No. 1759 of 2012 (Bandarla Naveen Kumar v.
B. Suguna & Anr.) has been relied upon, wherein in paragraphs 11
to 13 it has been held as follows:-
"11. Therefore, the only legal ground that has to be
considered in this appeal is, whether the exoneration
of the Insurance company from payment of
compensation to the claimant is legally sustainable or
not?
12. The contention of the claimant is that he was
travelling in the offending lorry as a cleaner. The
pleadings of the claimant are that he was travelling in
the offending lorry and the driver of the offending lorry
drove the same at high speed and dashed another
lorry. Though the relationship of the claimant with the
1st respondent/owner of the offending lorry is silent in
his pleadings, but he admitted in his cross-
examination that the 1st respondent is his mother.
The evidence of the claimant as P.W.1 goes to show
that on the instructions of the 1st respondent, brinjals
wee loaded into the offending lorry and the lorry was
proceeding towards Chennai, at that time, the
accident occurred. As per the evidence of P.Ws.2 and
4, the claimant was residing at Madanapalle for
pursuing his further studies after Intermediate. The
case of the claimant is that due to misunderstandings
between him and his mother, he came out of the
house, but the same is not proved by the claimant. As
it is the case of the claimant that he was engaged as
a cleaner of the lorry of the 1st respondent, the entire
burden is on the claimant to prove that he used to
work as a cleaner in the offending lorry of his
mother/1st respondent.
13. Ex.B.1-copy of insurance policy shows that the
risk of third party is only covered and the risk of the
claimant, who is son of the 1st respondent/owner of
the offending vehicle, is not covered. A reliance is
placed by the learned counsel for the 2nd
respondent/Insurance company on the decision of the
Hon'ble Supreme Court in New India Assurance
Co.Ltd. Vs. Sadanand Mukhi1 wherein it is held that
"where the claimant is not third party in relation to
Insurance company, the liability of the Insurance
company to compensate the said claimant does not
arise". Another reliance is also placed on the decision
of the Hon'ble Apex Court in United India Insurance
Company Limited Vs. M. Om Prakash wherein it is
held that "the claimants in all the three original
petitions are not third parties either under the Act or
under the terms and conditions of the policy and the
Tribunal below has no jurisdiction to entertain the
claim petitions filed by them and the appellant
Insurance company is not liable to pay compensation
to the claimants". Therefore, the law is well settled
that the claimant has to prove that he is a third party
and his interest is protected under Ex.B.1-policy, but
he failed to do so. The material on record reveals that
the risk of the claimant is not covered under Ex.B.1-
policy, the claimant is not a third party and he is none
other than the son of the owner of the offending
vehicle/1st respondent. Therefore, the 2nd
respondent cannot fasten the liability of the 1 st
respondent. It is for the 1st respondent alone to
compensate the claimant for the loss sustained by
him due to the accident. The Tribunal, by giving
cogent reasons, came to the conclusion that the 2nd
respondent/Insurance company is not liable to pay
any compensation and the 1st respondent alone is
liable to pay the compensation to the claimant. No
appeal is filed by the 1st respondent against the said
finding."
8. Learned counsel for the claimants argues that as per the insurance
policy Exhibit D-3, the premium of Rs.25/- has been paid for the
cleaner. Thus, the cleaner's risk is covered. In such a situation, the
Tribunal is justified in concluding that the risk of deceased
Bhagwati Prasad as a cleaner is covered. Therefore, the objection
raised by the Insurance Company in this regard is not acceptable
and the appeal preferred by the company is liable to be dismissed.
9. In this case, the claimant party has clarified in their pleadings that
the deceased used to work as a cleaner in the offending vehicle
and this has been confirmed from the court statement of the wife of
the deceased Smt. Reshma Bai Dheemar. However, salary
register or appointment letter etc. regarding payment of Rs.6,000/-
per month to the deceased has not been produced. But from the
pleadings and evidence of the claimant party, it has been prima
facie established that the deceased used to work as a cleaner in
the offending vehicle and take care of it. This evidence could not be
refuted. On the contrary, in accordance with its pleadings, no
evidence has been presented by the insurance company in this
regard that the deceased was travelling in the offending vehicle as
an unauthorized passenger at the time of the accident.
10. In such a situation, due to the difference in facts, the insurance
company would not get the benefit of the judgment relied upon by
them because in the said case, the claimant party had to establish
that he falls in the category of third party, whereas in the case
under consideration, it was to be established that the deceased
Bhagwati Prasad was working as a cleaner of the offending vehicle
and this fact has also been established by the claimant party on the
basis of evidence, which the insurance company could not refute
and could not even present evidence in this regard that the
deceased was travelling in the offending vehicle without
authorization at the time of the accident.
11. In such a situation, the argument of the appellant insurance
company that the risk of the deceased was not covered as per the
policy is not found acceptable.
12. Thus, both the objections raised by the insurance company are not
found acceptable and the appeal preferred by them is dismissed.
Cross-Appeal
13. The claimant party has filed the cross-appeal challenging the
finding of the Tribunal, under which the Tribunal has found 50%
contributory negligence on the part of the offending vehicle and has
held it liable for only 50% of the compensation amount.
14. According to the argument of the claimants, on perusal of the entire
record, it becomes clear that the Mahindra pickup is said to be the
offending vehicle and the claim was filed against its driver,
registered owner and insurer. The Police had filed charge-sheet
against its driver only, which collided with the Mexico Mini Van. The
driver, owner or insurer of that Mexico Mini Van was not made a
party in the claim application. In paragraph-16 of its award, the
Tribunal has held that the deceased was working as a helper
(cleaner or maintainer) in the offending vehicle Mahindra pickup
and a criminal case was registered against the driver Gajadhar
Chandel as the accident occurred due to his rash and negligent
driving. Since the duty of supervision was also of the deceased, it
has been considered as a contributory negligence, which in itself is
completely vague/unclear.
15. From the pleadings and evidence presented in the case, it is clear
that the claim was filed against the driver of the offending vehicle
Mahindra Pickup No. CG-04-J-1505 Gajadhar Chandel, the vehicle
owner Pyarelal Dheemar and the insurer Shriram General
Insurance Company Limited. The deceased Bhagwati Prasad
Dheemar is said to be working as a cleaner in this vehicle. This
offending vehicle collided with another Mexico Mini Van. Neither
any claim application was filed against the driver, registered owner
or insurer of that Mexico Mini Van nor was any crime registered by
the Police against them, rather the crime was registered by the
Police against the driver of this offending vehicle Mahindra Pickup,
Gajadhar Chandel, in which the deceased was also travelling.
16. In such a situation, when there is no clear evidence regarding the
negligence or rashness of the deceased and there is no statement
in this regard, the conclusion of the Tribunal to determine the
contributory negligence of driver Gajadhar Chandel along with
someone else appears to be baseless. Hence, that conclusion is
not found to be sustainable.
17. Thus, the cross-appeal of the claimants party is accepted and the
conclusion of the Tribunal that there was only 50% negligence on
the part of driver Gajadhar Chandel is set aside. Instead, it is held
that the accident occurred due to the complete negligence and
rashness of driver Gajadhar Chandel. Hence, the liability of
payment of the entire compensation amount i.e. Rs.12,53,000 as
determined by the Tribunal will be upon the insurer of the offending
vehicle Mahindra pickup.
18. In the result, the appeal of the appellant Insurance Company is
dismissed. The cross-appeal of the claimants is allowed and it is
concluded that the appellant insurance company is liable for
payment of total compensation amount of Rs 12,53,000/- to the
claimants as determined by the Tribunal.
19. The remaining conditions of the impugned award are kept
unchanged.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai
