1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 230 of 2016 Judgment Reserved on : 01/04/2026 Judgment Delivered on : 07/04/2026 Oriental Insurance Company Ltd. Branch Office Manendragarh Road, Ambedkar Chowk Ambikapur, District Sarguja, Chhattisgarh, Through The Divisional Manager, Oriental Insurance Company Ltd. Rama Trade Center Near Old Bus Stand Bilaspur, Chhattisgarh........Insurer, ... Appellant versus 1-Randheer Singh S/o Laln Singh, Aged About 40 Years, 2-Sarita W/o Randheer Singh, Aged About 35 Years, Respondent No.1 & 2 are R/o Rajkheta Tehsil Wardfnagar, District Balrampur- Ramanujganj, Chhattisgarh........Claimants, 3 - Shivpujan Kushwaha S/o Rampratap Kushwaha, R/o Village Songara, Post Songara, District Surajpur, Chhattisgarh.......Owner, 4 - Anil Kumar Kushwaha S/o Basudeo Kushwaha, R/o Village Kotrahipeth Wardfnagar, District Balrampur-Ramanujganj, Chhattisgarh........Driver, ... Respondents For Appellant : Mr. Ghanshyam Patel, Advocate For Respondent No.1 to 2 : Mr. Pushpendra Kumar Patel, Advocate For Respondent No.3 & 4 : Mr. Sunil Tripathi, Advocate Hon’ble Shri Justice Radhakishan Agrawal CAV Judgment PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2026.04.07 15:16:57 +0530 2 1. This appeal has been filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988 against the award dated 07.11.2015 passed by the learned Additional Motor Accident Claims Tribunal, Ramanujganj, District Balrampur-Ramanujganj (C.G.) in Claim Case No.18/2014, whereby the Tribunal awarded total compensation of Rs. 5,00,000/- with interest @ 9% per annum from the date of application till its realization, fastening the liability upon the Non-Applicants jointly and severally. The Tribunal further held that Non-Applicant No.1, being the Insurance Company (Appellant herein) is primarily liable to pay the compensation. 2. As per the averments made in the claim petition, on 21.06.2014, Tularam, aged about 13 years, had gone to village Shardapur along with D.J. Party and other persons to attend marriage party in a vehicle Pick-up bearing registration No.UP-64-T-1293 (hereinafter referred to as the “offending vehicle”). While returning from there, at 04:00 AM, Anil Kumar Kushwaha – driver of the offending vehicle drove the same in a rash and negligent manner due to which the offending vehicle hit the tree, as such, Tularam (deceased hereinafter) sustained grievous injuries and during course of his treatment, he died. At the time of accident, the offending vehicle was owned by Non-applicant No.2 - Shivpujan Kushwaha and insured with Non-applicant No.1 – The Oriental Insurance Company Limited. 3. Upon the claim petition being filed by the claimants under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs. 5,52,000/-, it was, inter alia, pleaded that at the time of the 3 accident, the deceased boy was aged about 13 years and he was studying in school. The learned Claims Tribunal, after considering the evidence adduced by both the parties, passed the award as mentioned in paragraph 1 of this judgment. 4. Learned counsel for the appellant/Insurance Company (Non- Applicant No.1) submitted that the impugned award passed by the learned Claims Tribunal, fastening liability upon the appellant/Insurance Company without proper appreciation of the evidence and material available on record, is erroneous and unsustainable in law. It is further submitted that although the offending vehicle was duly insured with the appellant/Insurance Company on the date of the accident, but the said offending vehicle was a goods carrying vehicle and the sitting capacity of the said vehicle is two persons (1 + 1) but the same was being plied on road with 7-8 passengers on it who were returning after attending the marriage ceremony and the said fact is also evident from the final report (Ex.P-1), as such, there was clear violation of terms and conditions of the insurance policy. The deceased was allegedly sitting on the DJ set loaded in the offending vehicle as a gratuitous passenger, therefore, he was not covered under the terms and conditions of the insurance policy, amounting to a breach of the policy conditions. With regard to the compensation awarded by the Tribunal, he submitted that the same has been awarded on a higher side, which needs to be reduced suitably. He further submitted that personal expenses should have also been deducted. Hence, the 4 appellant/Insurance Company cannot be held liable to pay the compensation. In support of his contentions, reliance has been placed on the decision of Supreme Court in the matter of National Insurance Company Ltd. Vs. Cholleti Bharatamma and Others reported in (2008) 1 SCC 423. 5. Learned counsel appearing for the claimants while admitting that no separate appeal has been filed by them, submitted that the learned Tribunal after considering the materials available on record has rightly awarded the compensation, which needs no interference by this Court. 6. Learned counsel appearing for the owner and driver of the offending vehicle submitted that on the date of accident, the offending vehicle was duly insured with the insurance company/Non-Applicant No.1. He further submitted that the deceased Tularam was not travelling on the offending vehicle as a gratuitous passenger, but was travelling as a representative of the owner of the DJ set. He further submitted that Sanjay Kumar is not the eye-witness to the accident and he has not disclosed the number of persons who were travelling in the offending vehicle and according to him, deceased was sitting inside the cabin of the offending vehicle along with the driver. Learned counsel further contended that the driver, Anil Kumar, had not permitted the deceased to sit in the offending vehicle; rather, the deceased himself forcibly entered the said vehicle. In these circumstances, the learned Tribunal has rightly fastened the liability upon the insurance company, which warrants no interference by this 5 Court. In support of his contentions, reliance has been placed on the decision of Supreme Court in the matters of Uttar Pradesh State Road Transport Corporation Vs. Kulsum and Others reported in (2011) 8 SCC 142 and United India Insurance Company Limited Vs. K.M. Poonam and Others reported in (2015) 15 SCC 297. 7. Heard learned counsel for the parties and perused the material available on record. 8. The question that arises for consideration is whether the learned Claims Tribunal was justified in fastening the liability upon the appellant/Insurance Company. 9. It is not in dispute that at the time of the accident, the deceased Tularam, who was aged about 13 years old, studying in class 9, died while travelling in the offending vehicle. NAW-3, Anil Kumar Kushwaha, driver of the offending vehicle has stated that on 21.06.2014, he had been instructed by the owner of the vehicle, Shivpujan Kushwaha, to transport the DJ equipment and musical instruments belonging to Rajesh Nag from Shardapur to Ramanujganj, and that he was engaged only for carriage of the said goods and had not been authorized to permit any other person to travel in the said vehicle along with the goods. He further stated that during transit, when some of the musical instruments started slipping/falling, Tularam attempted to board the vehicle for safeguarding the goods, whereupon he objected and informed him that he had been specifically instructed to carry only the goods and not any passenger; however, despite such objection, Rajesh Nag 6 compelled him to allow the deceased to sit in the vehicle for protection of the goods. Thus, from the statement of the driver, it is evident that the deceased was sitting with DJ set placed in the offending vehicle. This apart, although the driver/NAW-3 claimed that he had warned the deceased not to climb onto the said vehicle, but later, he allowed him to sit in that and continued to drive the same, which clearly establishes negligence on his part. Though learned counsel for the owner & driver has submitted that the deceased boy was sitting in the cabin of the offending vehicle, but, AW-2 Sanjay Kumar has stated in his deposition that he (Sanjay Kumar) was sitting in the front side of the offending vehicle alongwith the driver and deceased Tularam was sitting on the DJ set kept in the offending vehicle. Thus, it is not proved that the deceased was sitting with the driver in the cabin of the offending vehicle. Furthermore, the FIR (Ex.P-2) was promptly lodged within four hours of the alleged accident against the driver of the offending vehicle, and after investigating, the police has also filed a charge-sheet against the driver under Sections 279, 337, 304-A and 338 of IPC. 10. That apart, the evidence of AW-1 (father of the deceased) also shows that the deceased boy was only a student, aged about 13-14 years, studying in class 9, but he has not stated that the deceased had any connection with the goods (DJ set) or the offending vehicle, and therefore, he cannot be treated as a worker or representative of the owner of the DJ set. 7 11. Moreover, the insurance policy (Ex.D-2) shows that the offending vehicle was meant for goods carrying vehicle and its seating capacity was only 1+1, yet 7–8 persons were travelling in it on the date of accident, which is a clear violation of the policy conditions. Though it is mentioned in the charge-sheet (Ex.P-2) that several persons were travelling in the offending vehicle, but there is nothing to show that the DJ set was being transported as goods in a commercial sense, instead it appears that the DJ set was used for the marriage function. Thus, the offending vehicle, which was meant for carrying goods, was being used to transport passengers, and it further appears that transport services were being provided by the said vehicle, thereby constituting a breach of the insurance policy conditions on the part of the driver of the offending vehicle. 12. This apart, there is no evidence produced by the owner or driver of the offending vehicle which could show that the deceased was travelling as the worker or representative of the owner of the DJ set. As such, the deceased was travelling as a gratuitous passenger in a goods carrying vehicle. With regard to the contention made by counsel for the owner and driver that after warning given by the driver of the offending vehicle, the deceased boy had forcibly entered in the offending vehicle, however, the evidence on record shows that despite such warning, he (driver) allowed the deceased to remain seated in that unsafe position and continued to drive the vehicle. This clearly shows negligence on the part of the driver, as it was his duty to ensure that no person, especially a minor, travelled in a dangerous 8 manner. Merely giving a warning is not sufficient when the driver still permits such unsafe travel. In that view of the matter, this Court is of the view that the Tribunal, has erred in fastening the liability upon the insurance company, and it is held that the driver and owner of the offending vehicle is liable to pay the compensation to the claimants. Having gone through the judgments relied upon by learned counsel for the owner and driver, and the principles of law laid down therein, this Court is of the opinion that the same are distinguishable on the facts of the present case and are of no help to the counsel for the owner and driver. 13. So far as the compensation awarded by the Tribunal is concerned, considering that the deceased boy was a minor student, aged about 13–14 years, studying in class 9, the amount of Rs.5,00,000/- awarded by the Tribunal is just and reasonable, which does not require any modification. 14. As regards the payment of compensation, considering the facts and circumstances of the case, it is evident that although, on the date of the accident, the offending vehicle was duly insured with the appellant–Insurance Company, but the same was being plied in contravention of the conditions of the insurance policy. Therefore, in view of the principles of law laid down by Hon’ble Supreme Court in the matter of Manuara Khatun and Others vs. Rajesh Kumar Singh and others reported in (2017) 4 SCC 796, this Court feels it proper to order for “pay and recover” in this case, meaning thereby, that the insurance company shall first pay the amount of compensation to the 9 claimants and then recover the same from the owner and driver of the offending vehicle in accordance with law. 15. Accordingly, the appeal is allowed in part to the extent indicated hereinabove. Rest of the conditions of the impugned award shall remain intact. Sd/- (Radhakishan Agrawal) Judge Prakash