'sS&SSgS IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) M.A. (C) No. /6^^of2010 '^^"' •to3.'7i. ~f'.'; APPELLANTS \<Q. •aW i^-~^" ^H RESPONDENT :1 2. 3. 4. 5. Smt. Anjta Bai, W/o Gendlal, aged about 32 years, Devesh Kumar, S/o Gendlal, aged about10 years Kumari Dolly, D/o Gendlal, aged about 05 years, Bhurwaram, S/o not known, aged about 65 years, Smt. Muliya Bai, W/o Bhurwaram, aged about 60 years, Appellants No. 2& 3 are minor throughlegal guardian mother Smt. Anita Bai, W/o Gendlal All R/o Village & Post-Pairi, Tahsil-Gunderdehi, District-Durg VERSUS National Insurance Company Limited, through Divisional Manager, Division Office Akashganga: Complex, Supela, Tahsil & District-Durg (C.G.) CLAIM BEFORE THE TRIBUNAL AWARD AMOUNT Rs.05,09,600/- Nil VALUATION OF THE PRESENT APPEAL: Rs. 05,09,600/- MISCELLANEOUS APPEAL U/S. 173 OF THE MOTOR VEHICLEACT, 1988 .'•f^r •^. y ^ A p ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bteShri I.M. Quddusi. J. & Hon'ble Shri Prashant Kumar Mishra. J. APPELLANTS RESPONDENT M.A.(ClNo. 1074 of 2010 Smt. Anita Bai and othere. Versus National Insurance Company Limited. MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1S88 Appearance: Shri Avinash Chand Sahu, counsel for the appellants. Shri Goutam Khetrapal, counsel for respondent. Following I. M. Quddusi. J. ORAL ORDER (09/12/2010) oral order of the Court was passed by This appeal has been filed against the impugned award of Motots Accident Claims Tribunal dated 07/08/2010 passed in Claim Case No. 124/2009, by IX Additional Motor Accident Ctaims Tribunal (F.T.C.), Durg dismissing the claim petition. (2) Brief facts of the case are that on 22/06/2009 the deceased- Gendtal who was the owner and was drivlng the Tractor bearing registration No. C.G.05/0594, loaded the tractor with bricks for his domestic purpose and was coming from village Chourel to Pairi. Suddenly, he lost control over the tractor and it turn turtte due to which he received injuries and thereafter he was taken to Chandula! Chandrakar Hospital, Bhilai where he was declared dead. The claimants filed claim petition claiming to the tune of Rs.5,09,600/-. \ •.:;?~%. 'i ^..'^"'^ •^L- (3) The fact of accident and death of the deceased/owner of the tractor who was driving the tractor has been established and M.A.C.T. concerned decided this issue accordingly. The other issue whether the tractor No. C.G.05/0594 was insured on the date of accident i.e. on 22/06/2009 was atso decided in affirmative, therefore according to the Tribunal it is established that the death of the deceased was caused due to the accident, which was taken piace by the tractor No. C.G.05/0594 when the deceased was driving the tractor further the tractor was insured with the Insurance Company namely Nationat Insurance Company Limited. But the Tribunal has held that the deceased breached the conditions of the Insurance Policy and therefore the claimants were not entitted to get compensation. The breach of policy conditions as mentioned in the impugned award are that the Insurance Policy was made for agricultural purpose and the other ground is that the deceased was not having a valid or effective driving license. (4) In the above regard first of all it is to be seen that whether the tractor was a light motor vehicle or not 7'according to the definition given in the Motor Vehicte Act section 2 (21) the Light Motor Vehicle has been deflned as under:- "light motor vehicle" means a transport vehicle or omnibus the gross vehicle wwght of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed Subs. byAct 54 of 1994 P.5WJ kitograms;" (5) The weight of the tractor was given in the RC Book as 1835 Kilograms, therefore, the tractorwas a Light Motor Vehicle. '"-':^¥——- ?',LLl'SE:®!!g'i"E!S.3gSi' 1. 2. 3. -5- (6) After perusing the driving license of the deceased which shows that he was issued driving license by Licensing Authority, Durg in Original License No.G/27925/Durg. The original date of issue was 27/02/2008. The validity of the fcense is 23/10/2026 and was authorized to drive motor cycle with gear and light motor vehicte. (7) With regard to other ground regarding the Insurance Policy the claimants had flled the original Insurance Policy which is Policy No.285200/31/09/6700001129, which is a 'Miscellaneous and Special Type of Vehicles Policy A Liability Only'. The limitation to use as mentioned in the original policy which is duly stamped is as under:- 'Llmttatlon as to use :• The Policy covers use only under a permit w'sth'm the meaning ofthe Motor Vehicle Act, 1988 orsuch a carriage falling under Sub-secSon 3 of Section 66 of the Motor VehiclesAct. 1988. The Poticy does not cover Use for hire or reward or for rectng pace maldng reliability triat or speed testing. Use forthe Carriage ofpassengers forhire orreward. Use whilst drawing a greater number of trailers in all than is permitted by law. "Persons or Ctess ofPersons entltled to diive: Any person including Insure prowfed thai a person diriving holds an effecGve driwng licence at the time of the accident and is not disqualMed from holding or obtaining such a licence. Prowded also that the person holdmg an effective leamer's Licence may drive the vehicle and such a person safeffes the requirements of Rule 3 of Cenfral Motor Vehicle Rule, 1989." / ^ Llmlts of Liabillty: Under Section -II (i) in respect ofany one accktent; As per Motor Vehicles Act, 1988. Under SecSon -II (ii) m respect of any one claim or sefies ofdaims arising out ofone event : Rs. 750000. The details ofpremium are as under:- f SCHEWLE OF PREMIUM fln Rs.) (8) However, the Insurance Company has fited another copy of the Insurance Policy purported to be a certified copy which is (Ex.D/2). The conditions thereon has been mentioned as under:- "Limttatlon to use: Use on/y for agriculturaf and forestty purpose. The policy does not cover (1) Use for hire or reward or for raclng pace making reliability trial or speed tesSng. (2) Use for the cairiage of passengers for hjre or reward. (3) Use whilst drawing a greater number of trailer in all than is permitted by law." (9) Therefore, there is difference between the original policy and the certified policy. This is also a question as to why a copy of different policy to be certified as the Policy No. 2852CO/31/09/6700001129 has been filed by the Insurance Company and witness was also produced as witness No.1 by the National Insurance Company namely P.Vargis, Assistant Manager, National Insurance Company Office of the National Insurance ~^. s.'r.p.-eAS/c 800.00 ADD: Pfemium for Trailer Rs.550.00 Compulsay PA to Owner Cum Driver Amount200000 244.00 WCtoemptoyaQ2 50.00 GROSS (B): 1.644 GROSSOD&TP 1.644 GROSSW NetPiemium : T644~ Sen/toe Tax 10.3% Rs. 169.00 Mlntmum Premium RS.1W (Vef Amount Payable RS.1,813.00 5- Company, Akash Ganga Complex, Supeta Bhilai, Distrfct Durg (C.G.5 who has inter alia stated about the above number of policy that this company had issued the Insurance Policy for commercial purpose. He has stated that he has not produced any proposal of insurance before the Tribunat. But the Insurance Company has not produced any evidence of the Regional Transport Office to show that the deceased was not having valid or effective driving license and in the absence of the same it can be said that the burden to prove was upon the Insurance Company to prove that the deceased was not >» having valid and effective driving ticense which they failed to prove. (10) This is not known as to how Policy containing wrong condition has been filed by the Insurance Company certifying it to be a true copy of the poticy, this isa matter of enquiry. (11) Considering the facts and circumstances of the case, we are of the opinion that the flndings of the learned M.A.C.T. concemed regarding that the deceased was not having a valid and effective driving license, as wett as that the tractor was being used for agricultural purpose are perverse and are liable to be set-aside. (12) In the result, we allow this appeal in part. The impugned award is set-aside. The matter is remitted to the Tribunal for decision afresh in the light of the observation made above. (13) The Tribunal shall decide whether the tractor along with the trolley would become a Light Motor Vehicle or some other type of motor vehicle ? (14) The Tribunal shatl also conduct an enqulry as to who had filed certified copy containing different conditions of policy to the ~'^. ./ -6- original policy (Ex.P/1) different condition of policy (Ex.D/2) and shall take appropriate action against the wrong doer. The Claim Petition shall be decided afresh as early as possibte, preferabty within a period of three months from the date of receipt of the LCR. (15) The LCR shalt be sent to the Tribunal without further delay. (16) We hereby clarify that the decision of the claim petition shall not be delayed because of the conduct of enquiry regarding filing of wrong certified copy of the Insurance Poticy and after hearing the arguments of the parties and pemsing the evidence, the award shall be made expeditiously and the enquiry regarding filing of certified copy of the Insurance Policy shall be conducted separately. The parties shall appear before the M.A.C.T. concemed on 12^ January, 2011 and while conducting enquiry the parties shall be provided adequate opportunity of hearing. Sd/- . l.TA.Quddusi judge Sd/- Prashant Kumar Mishra Judge ^'