1 2025:CGHC:354 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 448 of 2021 1. Smt. Meera Chandrvanshi W/o Late Shri Jhanak Chandrvanshi, aged about 46 years 2. Umesh Chandrvanshi S/o Late Shri Jhanak Chandrvanshi, aged about 21 years 3. Ku. Soni Chandrvanshi W/o Late Shri Jhanak Chandrvanshi, aged about 20 years All are resident of village- Jhandatalab, Tahsil- Chichola, District Rajnandgaon (C.G.) Current address- Tulsipur Ward number 18 Gali number- 3 lane infront Ashok Chowdhari’s residence, Rajnandgaon, Tahsil and District Rajnandgaon (C.G.) ... Appellants/Claimants Versus • The Oriental Insurance Company Limited, through- Branch Manager, Branch Office- Near LIC Office, Near Railway Station, Tahsil and District- Rajnandgaon (C.G.) (Insurer of Vehicle No. CG-08-Z-6154) ... Respondent/Insurance Company For Appellants : Mr. Rajendra Patel, Advocate holding the brief of Mr. Sumit Shrivastava, Advocate For Respondent : Mr. Sudhir Agrawal and Ms. Prerna Agrawal, Advocates Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board 03/01/2025 1. This is claimants’ appeal filed under Section 173 of the Motor Vehicles Act, 1988 for enhancement of compensation awarded by the learned Ist Additional Motor Accident Claims Tribunal, Rajnandgaon, District Digitally signed by RAMESH KUMAR VATTI 2 Rajnandgaon (C.G.) in Claim Case No. 04/2019 vide award dated 20.01.2021. 2. The claimants/appellants are the mother, brother and sister of the deceased, namely, Jitendra Chandrvanshi, who died on account of a motor accident on 21.01.2018 near village Baputola, Chichola-Churia main road as an unknown vehicle dashed him while he was going to Jhandatalab on motorcycle bearing registration No. CG-08-Z-6154 along with his friend, namely, Yashwant. 3. Admittedly, the deceased was not the owner of the vehicle. The owner of the motorbike was Bhupendra Kumar Kanwar. The matter was reported to the police station and Crime No. 17/2018 was registered for the commission of offence punishable under Sections 338 and 304A of IPC. The vehicle was insured with the Oriental Insurance Company Limited/respondent. The claimants who are the mother, brother and sister of the deceased filed a claim case under Section 166 of the Motor Vehicles Act claiming therein compensation to the tune of Rs.30 lacs inter alia on the ground that the deceased was working on the post of Clerk in Government High School, Arjuni, he was getting a salary of Rs.15,883/- p.m. and his age was 28 years. The Insurance Company filed a written statement and denied the contents of the application. It was pleaded that an unknown vehicle dashed the motorbike of the deceased and the deceased would not come within the definition of third person and he was also not the owner of the vehicle, therefore, the claim case filed by the claimants is not maintainable. It was also pleaded that as the owner of the vehicle was one Bhupendra Kumar Kanwar and the deceased entered into the shoes of the owner therefore he cannot claim compensation for himself. It is also stated 3 that no additional premium was paid for the driver, rather premium was paid for owner-cum-driver. 4. The learned Tribunal framed issues and held that the deceased sustained injuries on account of the motor accident and died on 21.01.2018; the claimants are entitled to get an award of Rs.1 lakh only and the deceased had a valid driving licence on the date of the accident. 5. Mr. Rajendra Patel, learned counsel appearing for the claimants/appellants would submit that the learned Tribunal committed an error of law in not assessing compensation according to the IInd Schedule. He would further submit that the learned Tribunal failed to assess the notional income of the deceased and also failed to apply the appropriate multiplier to calculate just and proper compensation. Though the deceased was not an owner of the vehicle according to the provisions of Section 166 of the Motor Vehicles Act, the claimants were entitled to compensation. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Ramkhiladi and Another Vs. United India Insurance Company and Another, reported in (2020) 2 SCC 550. 6. On the other hand, Mr. Sudhir Agrawal, learned counsel appearing for the Insurance Company/respondent, would oppose the submissions made by Mr. Rajendra Patel. He would submit that the deceased was not the owner of the vehicle, therefore, the claim case filed by the claimants was not maintainable at all. He would further contend that the deceased entered into the shoes of the owner of the vehicle and being the owner he cannot claim compensation for himself. In support, he placed reliance on the judgment passed by the Hon’ble Division 4 Bench of this Court in the matter of Smt. Sunita Gupta and Another Vs. Gurusharan @ Dauwa Gupta and Others in MAC No. 706 of 2014 dated 24/09/2020. 7. I have heard learned counsel for the parties and perused the records. 8. Admittedly, the vehicle was registered in the name of Bhupendra Kumar Kanwar on the fateful day; the deceased was driving the vehicle and an unknown vehicle dashed him and consequently, he succumbed to the injuries. The matter was reported to the police and an FIR was also registered. The claimants who are the mother, brother and sister filed a claim case under Section 166 of the Motor Vehicles Act. 9. In the matter of Smt. Sunita Gupta (supra), the Hon’ble Division Bench while dealing with a similar issue held that the deceased though was having a valid driving licence, but was not a registered owner of the vehicle and as per the Insurance Policy only the registered owner in person is entitled to compulsory coverage where he or she holds an effective driving licence. In the present case, the copy of the insurance policy which is exhibited as Ex. D/1 would show that no premium was paid for the driver of the vehicle. 10. The main characteristics of the policy are as under:- “Perusal of coverage of risk as mentioned above, the schedule of premium in the policy is Subject to IMT endorsement printed herein/attached to IMT-22, IMT-28, IMT-16 and IMT-5. IMT-22 is compulsory deductible. Personal accident to unknown passenger other than the insured, paid driver and cleaner GR36A is compulsory personal accident covered to owner/driver. GR 36A reads as under:- “GR 36A. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver 5 Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an “effective” driving licence is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or traveling in the insured vehicle as a co-driver. NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/ she holds an effective driving licence. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner- driver does not hold an effective driving licence. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner-driver should not be charged and the compulsory P.A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her. 11. The contents of GR36-A talk about risk under the policies for personal accident coverage for the owner of the insured vehicle holding an effective driving licence. According to the definition of ‘owner’ defined under Section 2(30) of the Act of 1988 – ‘owner’ means in whose name the motor vehicle stands registered. In the present case, the vehicle was not registered in the name of the deceased, therefore, he would not come within the purview of owner-cum-driver of the vehicle. 12. The Hon’ble Supreme Court in the matter of Ramkhiladi (supra) while dealing with a similar issue held that as per the contract of insurance, in case of a personal accident, the owner-driver is entitled to get a sum of Rs.1 lakh. The deceased who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh as per the contract of insurance. The relevant para- 9.8 is reproduced herein below:- “9.8. However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs. 1 lakh. 6 Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs. 1 lakh, ever as per contract of insurance, However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs. 5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs. 5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned Tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court in 10-5-2018 (United India Insurance Co. v. Ramkhiladi, 2018 SCC OnLine Raj 3264) i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs. 1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.” 13. Now coming to the cross-objection filed by the Insurance Company. The power/Vakalatnama on behalf of the Insurance Company was filed on 10.12.2021, whereas the cross-objection was filed on 27.08.2024 after about 03 years. The cross-objection and affidavit would show that the Insurance Company has not explained the reasons for filing cross- objection after such an inordinate delay. According to the provisions of Order 41 Rule 22 of CPC, the cross-objection should be filed within a period of 30 days from the date of service of summons. The insurer has filed an application for condonation of delay too but sufficient reasons have not been explained in the application. 14. Taking into consideration the fact that the insurer has not assigned sufficient reasons causing delay in filing the cross-objection, in the opinion of this Court, the application for condonation of delay cannot be allowed. The application for condonation of delay is hereby rejected. Consequently, the cross-objection is also dismissed. 7 15. The deceased would not come within the purview of the owner-cum- driver according to GR36-A, therefore, no case is made for enhancement of compensation. Consequently, the appeal filed by the claimants/appellants is also hereby dismissed. No order(s) as to cost(s). Sd/- (Rakesh Mohan Pandey) Judge vatti