1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1491 of 2016 Judgment Reserved on : 24/01/2025 Judgment Delivered on : 05/ 02/ 2025 • Mohd. Islam S/o Shri Abdul Ajij, Aged About 57 Years, R/o Village Panchdevri, Police Station Kumhari, Tahsil Dhamdha, Civil and Revenue District Durg, Chhattisgarh ................Owner of Offending Vehicle Tractor Engine No. C.G.07 NA 7060, ... Appellant versus 1. Chhotu Yadav S/o Shri Puran Yadav, Aged About 49 Years, 2. Gopuri Yadav W/o Chhotu Yadav, Aged About 47 Years, Both are R/o Village Panchdevri, Police Station Kumhari, Tahsil Dhamdha, Civil and Revenue District Durg, Chhattisgarh ................. (Claimants), 3. Manager, Royal Sundram Allianz Insurance Company Ltd., Rama Trade Center, First Floor, In front of Rajeev Plaza, Near Bus Stand, Bilaspur, Tahsil Bilaspur, Civil and Revenue District Bilaspur, Chhattisgarh .................Insurer of Offending Vehicle Tractor Engine No. C.G. 07 NA 7060, ... Respondents For Appellant : Mr. Punit Ruparel, Advocate For Respondent No.1 & 2/Claimants : Mr. Pravesh Sahu, Advocate on behalf of Mr. P.R. Patankar, Advocate For Respondent No.3 : Mr. Himanshu Thakur, Advocate on behalf of Mr. N. K. Thakur, Advocate Hon’ble Shri Justice Radhakishan Agrawal CAV Judgment PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.02.05 14:30:42 +0530 2 1. This is owner’s appeal seeking exoneration from liability to pay compensation of Rs.2,25,000/- passed by the 6th Additional Motor Accidents Claims Tribunal, District – Durg, C.G. (in short ‘the Tribunal’) vide order dated 09.05.2016 in Claim Case No.83/2014, in favour of the claimants/applicants along with interest @ 9% per annum from the date of filing of the claim application till its realization. 2. As per the averments made in the claim petition, on 03.05.2014 at 06:30 AM, one Mubarak Ali took Bisambar Yadav (now deceased) on his motorcycle to agriculture farm to drive the tractor bearing registration No.CG-04-NA-7060 (hereinafter referred to as ‘the offending vehicle’) and pursuant to his direction, the deceased took the offending vehicle and was going from Kanbadi Panchdevri to village Khapri in a moderate speed and when he reached at Panchdevri drainage, the offending vehicle got uncontrolled and it fell down resulting into, deceased was crushed down under the vehicle due to which he succumbed to the injuries. 3. 3. A claim petition under Section 163-A of the Motor Vehicles Act, 1988 was preferred by the parents of the deceased seeking compensation to the tune of Rs.12,00,000/- on various grounds, pleading inter alia that deceased was 18 years old at the of accident and he was earning Rs.3,000/- per month by working as agricultural laborer. 4. The said claim petition was resisted by the non-applicants including the insurer taking the plea that the offending vehicle tractor was being plied in violation of the condition of the insurance policy. Both the parties led the evidence in support of their pleading. 5. The learned claims Tribunal, after appreciating the evidence and material available on record has held that on account of use of 3 offending vehicle owned by non-applicant No.1, the deceased was crushed down to death and on the date of accident, the said offending vehicle was insured with the insurance company and that the offending vehicle was being plied in contravention of insurance policy, assessed and awarded Rs.4,50,000/- along with interest at 9% p.a. from the date of filing of application till its realisation. The Tribunal also observed that since there is contributory negligence on the part of the deceased to the extent of 50%, therefore, the claimants are only entitled to get half of the compensation i.e. Rs. 2,25,000/- while directing the non- applicant No.1 to pay the compensation. It is this impugned award, the owner/non-applicant No.1 has filed this appeal. 6. Learned counsel for the appellant/owner submits that the learned Tribunal has committed grave error in passing the impugned award and fastening the liability over the owner of the offending vehicle. He further submits that on the date of accident, the deceased boy was aged about 14 years and was not working under anybody’s employment. It is further submitted that on the date of accident, the deceased boy came to the house of the owner and without informing him or any other members of the family, stolen the key of the tractor and drove it and thereafter, fell down to the drainage, as a result of which the deceased was crushed down under the vehicle due to which he succumbed to the injuries. Thus, the deceased died due to his own negligence. It is further submitted that on the date of accident, the owner of the offending vehicle was out of station. The owner of the offending vehicle, after returning from Varanashi, informed about the incident to the police station. He further submits that the offending vehicle was 4 insured with non-applicant No.2/insurance company, and therefore, the insurance company is liable to indemnify the same. 7. Learned counsel appearing of non-applicant No.2/insurance company submits that the offending vehicle was duly insured with the insurer but on the date of accident, the deceased who was 14 years old boy, was driving the offending vehicle and was also not having any driving licence being minor boy. Thus, there is breach of policy condition while plying the offending vehicle. The learned Tribunal after appreciating the evidence available on record has rightly held the deceased liable for contributory negligence to extent of 50% and further held that there was breach of policy conditions by the owner, while exonerating the insurance company from its liability. 8. Learned counsel for the claimants/respondent No.1 & 2 while admitting that no separate appeal has been filed by them, submits that the claimants are the parents of the deceased boy and they have filed claim petition for compensation under Section 163-A of the Motor Vehicles Act, 1988. He further submits that on the date of accident, one Mubarak Ali (not examined) had called Bisambar Yadav (deceased) and took him on his motorcycle to the offending vehicle and while driving the same, the offending vehicle got uncontrolled and fell down to the drainage, as a result of which, the deceased died. It is further submitted that the offending vehicle was owned by the owner/non- applicant No.1 and insured with the insurance company/non-applicant No.2 and that the death of the deceased took place on account of use of the offending vehicle, therefore, it is prayed that the order of pay and recover may be passed. To support his contention, he relied upon the 5 judgment passed by the Hon’ble Supreme Court in the matter of Jawahar Singh vs. Bala Jain and Others reported in (2011) 6 SCC 425. 9. Heard learned counsel for the parties and perused the material available on record. 10.Before proceeding further, it may be mentioned that the Motor Vehicles Act, 1988 is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act is awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind. 11. Now, the first question that requires the consideration of this Court is whether the death of deceased took place on account of use of vehicle or not? 12. To deal with the contentions of the parties, it would be appropriate to discuss the evidence available on record. As per the statement of father of the deceased, Chhotu Yadav (AW-01), on the date of accident i.e. 03.05.2014 at about 06:30 AM, on instruction of non-applicant No.1, one Mubarak Ali (not examined) took his son on his motorcycle to drive the offending vehicle and while driving the offending vehicle in moderate speed, the tractor got uncontrolled and it fell down to the drainage, as a result of which, the deceased was crushed and died. He has further stated that at the time of accident, his son (deceased) was aged about 18 years but in this regard he has not produced any documents showing his date of birth. 6 13.Shekhar Yadav (AW-02) @ Sirdhar Yadav, who is the elder brother of the deceased, in his statement has stated that on the date of accident, Mubarak Ali, who is the grand son of Md. Islam (owner of the offending vehicle) supported the version of Chhotu Yadav (AW-01). After the alleged incident, this witness lodged FIR (Ex.P-02) before the police station. As per the merg intimation (Ex.P-3) which was lodged by this witness on 03.05.2014 at about 9:30 AM, on the date of accident, Mubarak Ali (not examined) called his brother (deceased) and took him on his motorcycle for driving the offending vehicle and while driving the same, the tractor fell down to the drainage and deceased got crushed down and died on the spot. Further, in the final report (Ex.P-01), it has been stated that on the date of incident, the deceased who was 14 years old himself took the key of the tractor from the house and drove away the tractor and while driving the same, the tractor got uncontrolled and fell down to the drainage resulting into he died on account of him being crushed. Thus, it is clear that the death of the deceased took place on account of use of offending vehicle which was being plied by him only. 14. Now, the next question would be whether the deceased Bisambar Yadav had stolen the key of the offending vehicle from the house of the owner? 15.In this regard, the evidence of owner of the offending vehicle Md. Islam (NAW-01) is relevant. This witness, in his statement, has stated that on 30.04.2014 he had gone to Varanashi to attend the marriage ceremony of his son and during that period, other female members were present in the house and that the key of the tractor was also kept in the house and on the same day, the deceased came to his house and stolen the 7 key of the offending vehicle and took away the said vehicle and caused the accident near Panchdevi drainage, and the deceased succumbed to injuries. Thereafter, he informed about the incident to the police station Kumhari at 05:00 PM on 03.05.2014, whereas accident occurred at 06:30 AM. In support of his statement, he has produced police report (Ex.D-1), wedding card (Ex.D-2) and Railway Ticket (Ex.D- 3). It is pertinent to mention here that, had the deceased stolen the key of the offending vehicle from his house, the other family members who were present in the house, would have opposed the deceased to take the key and would have reported the matter to the police station with respect to the stolen of key, however, they did not do so nor reported the matter to the police station. Perusal of his statement shows that the key of the tractor as alleged was stolen in the presence of his family members, which is not at all reliable and untrustworthy as the family members did not take any measure in stopping the deceased to take the key and to drive the offending vehicle. It also appears that as an afterthought he has exaggerated his version. This apart, Mubarak Ali, who is the grand son of the owner and is said to be acted on instruction of the non-applicant No.1 in helping the deceased to take the key and to drive the offending vehicle, has also not been examined by him so that it would emerge the actual factum of the incident. From the above evidence, it is clear that on the date of incident, the deceased Bisamber Yadav had not stolen the key of the offending vehicle in as much as he drove the offending vehicle as per the instruction. Further, it is the duty of the owner of the offending vehicle to keep the key of the vehicle in safe custody. Further, it was the responsibility of the owner of the 8 offending vehicle to ensure that his tractor was not misused and that too by a minor without licence. 16.Thus, the Tribunal, after considering the evidence and material available on record, has arrived at the conclusion that although the offending vehicle was owned by the owner, but was being plied by the deceased and on his own negligence, the accident occurred and the deceased died on account of use of vehicle, which shows that on the date of accident, the offending vehicle was being plied in breach of policy conditions, therefore, the Tribunal held non-applicant No.1 liable for payment of compensation and thus fastened the liability on the owner of the offending vehicle to the extent of 50% towards contributory negligence and that the deceased was also held liable for contributory negligence to the extent of 50%, which in the considered opinion of this Court is just and proper. 17.As regards the liability to pay the compensation, the Tribunal has fastened the same over the owner of the offending vehicle and exonerated the insurance company. It is pertinent to mention here that on the date of accident, the offending vehicle was insured with the insurance company/non-applicant No.2, which was not disputed by owner of the offending vehicle. The Hon’ble Supreme Court in the matter of Jawahar Singh (supra) has held in paragraph 14, which reads as under: “We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accidents Claims 9 Tribunal quite rightly saddled the liability for payment of compensation on the petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, therefore, to recover the same from the petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same.” 18. In view of the principles laid down in the above referred matter and further considering the fact that at the time of accident, the offending vehicle was insured with the insurance company, this Court is of the view that the insurance company shall now indemnify the compensation amount as awarded by the Claims Tribunal firstly to the claimants, thereafter, the insurance company shall recover the same from the owner of the offending vehicle. 19. Accordingly, the appeal preferred by the appellant/owner of the offending vehicle is partly allowed. The other terms and conditions imposed by the Tribunal shall remain intact. Sd/- (Radhakishan Agrawal) Judge Prakash