r V-i^- Q c-pi^' IN THE HI6H COURT OF JUbICATURE AT BILASPUR MISC. APPEAL Fcl N0^ IOF 200^ gJjiglQ QGn^ APPELLANT (Insurer of vehicle) ,.,2-cg^^" ^,t^-"" •y3-lp'" Bajaj Allianz Seneral Insurance Company Limited, Office at Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur. Vs RESPONbENTS Claimant Driver of Vehicle No.C604-DA-7599) Owner of Vehicle No.C604-t)A-7599) 1. Minor Karan Kumar, son of Shri Kamlesh bevangan, aged about 2 years, a minor through natural guardian father Shri Kamlesh Devangan, son of Shri Samarulal, aged about 27 years, resident of Bilaigarh, P.S. <& Tahsil Bilaigarh, District Raipur. 2. l?ajendra Devangan, son of Maniram bevangan, aged about 35 years, resident of Katgi, P.S. <& Tehsil Kasdol, District Raipur. 3.8hupendra Devangan, son of Maniram Devangan, aged about years, resident of Katgi, P.S. <& Tehsil . Kasdol, bistrict Raipur. •V- a) APPEAL U/S 173 OF THE MOTOR VEHICLES ACT AGAINST THE AWARO/ORbER DATEb 09.05.2008 PASSEb BY THE FIRST AbbITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL. BALObA BAZAR (PRESIDEb OVER BY SHRI SANZAY SHIN&RE) IN CLAIM CASE N0.11/2007. valued AppeaL at Rs.82.000/. Court Fee affixed Rs.15/- „_ The appellant respectfully begs to submit as under; BRIEF FACTS QF THE CASE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. fQNo. 289 of 2009 APPELLANT RESPONDENTS Bajaj Allianz General Insurance Company Limited VERSUS Minor Karan Kumar & others '^ APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT SB: Hon'bleShri Justice N. K. Agarwal Present : Shri Abhishek Sinha with Shri Ghanshyam Patel, Advocates for the appellant. Shri Ashok Dixit, Advocate for respondent No. 1. Shri HP Agrawal, Advocate for respondent No. 2 & 3. ORAL ORDER (Passed on 08.04.2011) .^•r. 1. With the consent ofthe parties the matter is heard finally. 2. This is insurer's appeal against the award dated 09.05.2008, passed by the Ist Additional Motor Accident Claims Tribunal Baloda Bss.ar, Distt. Raipur (for short 'the Tribunal') in claim case No. 11/07, whereby and whereunder an amount of Rs. 82,000/- has been awarded in favour ofthe claimant holding appellant/insurance company liable for its payment along with respondent No. 2 & 3. 3. • Brief facts of the case are that, on 26.04.2007 Karan (minor, aged about 2 years) was playing in front ofhis house, was dashed by the driver of Tractor-trolley bearing registration No. CG-04-DA-7599 which was being driven by respondent No. 2 rashly and ,v Ml '9 l-,^^ssss^ negligently and as a result of which Karan sustained multiple injuries in the said accident. 4. As against claim of Rs. 8,80,000/- claimed, the tribunal awarded Rs. 82,000/- to the claimant holding insurance company liable for its payment. 5. Shri Sinha, leamed counsel appearing for fhe appellant would submit: 14-15 persons were sitting in the trolley attached with the ta'actor at the time of accident, tractor attached with trolley comes within the category of goods vehicle, the driver of the vehicle was having licence only to drive light motor vehicle, and therefore, as the driver was not having valid and effective driving licece to drive transport vehicle at the time of accident, the insurance company cannot be held liable for payment of compensation to the claimant. In support of his contention, reliance has been placed upon the judgment of Division Bench of this court in case of Baijnath & another v. Chandrika Prasad Sahu and also judgment of High Court ofBombay passed in case ofNational Insurance Co. Ltd. v. Sushila & others . 6. On the other haad, leamed counsel appearing for respondents would submit: plea taken by the insurance company was neither raised in the written statement nor proved by adducing evidence and thus appellant/insurance company has utterly failed to prove ' 2008 (1) CGLJ 307 (DB) 21 (2011) ACC 54 et»^'%i. Lf'sh ¥I 19 y^,-M its defence and the tribunal has rightly fastened the liability upon the insurance company. 7. I have heard the counsel appearing for the parties, pemsed the award impugned and records oftribunal. 8. A bare pemsal of the written statement filed by fhe appellant/insurance company would reveal insurance company has not taken any specific plea that the driver of offending vehicle was having licence only to drive light motor vehicle and was not having licence to drive transport vehicle, insiirance company even did not ask any question to Rajendra Kumar (NAW-1) i.e. driver of the offending vehicle that he is not possessing licence to drive transport vehicle, on the contrary, suggestion was given that licence is forged. Owner is also examined in the case as NAW-2. The insurance company did not ask any question suggesting he is guilty of negligence and has failed to exercise reasonable care in the matter of fulfillment the conditions ofthe policy regarding use of vehicle by a dully licenced driver. Appellant also did not examine any witness to prove its defence. 9. Three Judges bench of Supreme Court in case of National Insurance Co. Ltd. v. Swaran Singh and others has held in para llO(iii) 110(iv)asunder: "(iii) The breach ofpolicy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)( a )( ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or 2004 (3),SCC 297 A^" ' "<>. •rsr"1h •^^ '"Krtl '"^^. 4 invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the msurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer - has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden ofproofwhereforwould be on them. (vi) Even where the insurer is able to prove breach on the part of the insured conceming the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition ofdriving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fandamental breaeH" to allow defences available to the insurer under Section 149(2) ofthe Act." 10. Considermg the facts and circumstances ofthe case in the light of ratio of law laid down by the Supreme Court in the above referred case, it would be crystal clear that appellant/insurance company has utterly failed to prove its defence and in view ofabove, I do not find any illegality in the award passed by the tribunal fastening the liability upon the insurance company, and judgments cited by Shri Sinha are ofno help to him. 11. For the reasons mentioned hereinabove, the appeal being devoid of substance is liable to be and is hereby dismissed. No order asto Sahu s ^' costs. Sd/- . N-K.Agarawa] Judge