^.:.. H3GH COURT OF CHHATTJSGARH AT BILASPUR SB: Hon'bEe Shri Justlce R. L. Jhanwar, M.A,Na296.o0003 APPELLANT RISPONDENTS Laibadan Singh Versus Rajendra Kumar Kashyap and others. ORDER For Pronouncetnent of Order )^ .04.2011 Sd/- R.L. Jhawar Judge COURT OF CHHATTISCARH AT SB: Hon'ble Shri Justice R. L. Jhanwar; . ^A.N9,296of_20Q3 APPELLANT NA No.1 Lalbadan SEngh s/o Vashishtha Singh, age 40 years, r/o viiiage Bhatgaon, Chowki Bhatgaon, .Oocupation-servjce, Dlstt. Surguja, C.G. Versus RESPONDENTS 1. Rajendra Kumar Kashyap, s/o Late Ramkewai Kashyap, age 38 years, Occupation-Cashler, Surguja Kshetriya Gramin Bank, r/o Nagar Paiika Gali, Ambikapur, P.S. & Tehsif Ambikapur, Distt. Surguja, C.G. (CLAiiVIANT) 2. Vinod Singh s/o Vashlshtha Singh age 30 years, r/o Bhatgaon, Occupatlon- Service, Chowki Bhatgaon, Distt. Surguja, C.G, (DRiVERMN.A.No.2) 3. The Oriental insurance Company Limjted, through the Branch Manager, Branch Ambikapur, Distt. Surguja, C.G. (iNSURER)/(N.A.No.3) 173 OF THE VEHICLES ACT ADDearance: k Shri Sj^tlraj Slnha, counsei for the apDellant Ms. Ntfia Verma appears on behalf o? Shri V.K.Pandey, counsel for the respondent No. 1. Shri G.S.Patel, counsei for respondent No.3 None for respondant No.2. ORDER (Passedonl) .04.2011) This is directed agalnst the impugned order daied 31.01.2003 passed by fhe AddJtlonaJ Motor Accidents Cialms Tribuna!, Surajpur in CIaEm Case No. 187/2002 whereby the Tribunal in an imury case awarded compensation of Rs.95,000/- in favour of the respondent No.l/cEaimant and against the appellant & respondent No.2 whlle exonerating the insurance company/respondent No.3. 2. As agalnst the compensation of Rs.2,14,462/- ciaimed by respondent No.2/ciaimant by filing daim petitjon uncer sectlon 166 ofthe ,^ -z- {^ v iVioto!- Vehicles Act for the injuries sustained in the motor accident on 26,6.95, the Tribunai, cn ciose scrutjny of the evidence ied before it, held the driver of Jeep bearing registration No. M.P.27/2383 (for short ithe offending jeep") Ilabie for causjng accldent, due to which, the claimant,. who was traveiiing in the offendlng jeep sustained jnjuries and awarded Rs.95,000/- as total compensation. !t further held the appeiiant and respondent No.2 responsibSe to pay compensation on the ground that the offending jeep, owned by the appeiiant, was being piied in vjoiation of terms and conditlons of policy-of insurance. • Aggrieved therewith, appeilant / owner preferred this appea!. 3. Shri Shakti Raj Sinha, iearned counsej for the appeiiant argued that the driver of offending. jeep was hoiding a vaiid and. effective driving licence on the date of accidentbut the iearned Tribunai has in exonerating the insurance company cn the ground that driver was not holding a valid and effective driving licence. He also argued that olfending jeep was insured for private purpose and on the date of accldent also 11 was used as private purpose and the same was not given on rent to Kshetriya Gramin Bank, Shatgaon (for short 'the Bank5). He further argued that whiie driver was driving the offending jeep for personal use, on way, the clalmant Rajendra Kumar Kashyap of Kshetriya Grarnin Bank stoppsd the jeep and was sitting in it as a!so no fair was paid by Rajendra Kumar and in the meantime, the jeep met with accident, due to which, Rajendra Kumar Kashyap sustained injuries, There is no execution of agreement between the owner and the Bank and the same was not proved by the Bank;that the offending jeep was given on rent. Lastly, he argued compensation awarded by the Tribunai is on higher side. On these premises, he urged that the impugned order be set aside. 4. On the other hand, Shri Ghyan Shyam Pate!, iearned counse! for the insurer argued that the offandlng jeep was taken on hire by the Bank, Bhatgaon, as is evldent from the evldsnce of ciaimant itseif, and therefore, there is no necessity of proving its case. After appreciating the evidence avaiiabie on record, ths iearned Tribunai has rightiy exonerated the insurer. 5. Ms. Neha Vernia, learned counsel appearing for the cialmanVrespondent NoJ supported the impugned order. s. Y. ^- Having hsard rivai submissions, ! have perused the record of the Tribunai indudlng impugned order. in the present case, it has to'be seen as to whether the offending vehicie was being used for private purpose or not 3o far as this question is concerned, A.WJ Rajendra Kumar Kashyap, cashier of the 3ank, has stated that on 26.6.1995 he came to Ambikapur for coilecting cash in the offendlng jeep and whiie he .returnine from Bhatgaon, near Tulsi Naiah, the jeep turned turtie, due to wh-ich, he sustalned injuries induding fracture< in his cross-examination, he has c!earSy stated in paragraph 13 that the offendlng jeep was taken on hire by the Sank and the same has been running as such •sinoe six months snd this question was asked in cross-examJnation aiso and it was not rebutted by the owner. A.W.2 Chandrasekhar Tiwari, Branch Manager of the Bank, in his evldence, has stated about the medica! reimbursement but -no questlon was put to hlm by.the owner about the offending jeep being given on hire. N.A.W.1 Vijay Singh Thakur, Assistant Admsnlstrstive Qfflcer of.the insurer, has stated in his evidence that the offendlng was insured for private purpose and on the date of incident, the offending jeep was given on rent to the Bank, which is against the terms and conditions of the poiicy of insurance. He has stated that drivlng licence of the driver of offending jeep is oniy for L.M,V. and not for commercia! vehicle< 7. !n his evidence, driver Vinod Kumar NA,W.2 has stated that he was drjving the offending jeep for personai work and on way Rajendra Kumar Kashyap came to him and asked for !ift upto Bhatgaon,' therefore, he permitted him to sit'in the offending jeep and no charge was taken from him. !n his cross-exaCTnatlon, he'denied that he was working for Bank and the jeep .was given on rent to the Bank. N.A.W. 3 Arvind Kumar Gupta, who is worklng in the Bank as Officer Grade i, has stated that Rajendra Kumar Kashyap was carrying cash and at that time accident took piace. NA.W.1 Lal Badan Singh himself has stated in his evidence that he Js owner of the offendlng jeep and denied that the offending jeep was given on rent to the Bank. He supported the statement of his drlver and stated that vehicie was used for private purpose at the time of accident. In his cross-examinatEon, he has speclficaliy denied that the offending jeep v/as given on rent. 8. in theinstant case, the driver or the owner of the offending jeep did not take any pain to fiie wrillen statement of defence in the ciaim petition - ..^ '^.^:^^-, ,s ;•'•; :'y-^y-/' ^^^^^•~" (., to rebut the pieadings of the c!aimant and rsspondents and without taking any defence both the appeliant and respondent No. 2 i.e. owner and driver of the offending jeep, they directiy entered into witness box to adduce their evidence. in the absence of defence by fiiing writfen statement, their evidence cannot be termed as defence and can be termed as their cross- examination. !n cross-examination of Rajendra Kurnar Kashyap A<W.1, nothing has been asked about the Jeep being given on rent but En cross- examlnation by insurance company, Rajendra Kumar Kashap has cieariy admitted that offending jeep was taken.by the Bank on hire and Branch Manager Chandrasekhar has also adduced his evidence but nothinQ has been asked to him about the jeep being taken on hire whereas he was the best person to adduce evidence in that regard. in this view of the matter, the evidence adduced by the appeiiant and respondent No.2 i.e. owner and driver Is not reiiabie. it aiso appears that they entered witness box in order to save themseives. 9. Having thus discussed the above evidence, it Is held that the offending jeep was glven cn rent to the Bank and has been running since six months prior to date of accident. In the insurance policy Ex.N.A.3-1, the offending jeep was Insured as private car and it is also evident from the evidence of Vijay Singh Thakur, the v^itness of insurance company. It is also heid that on the date of incident, the offending jeep was being used for commercial purpose. Thus, the owner of the offending jeep has breached the policy of insurance. 10. Now so fer as the question driving iicence held by the driver Vinod Kumar is concerned, Vlnod Kumar Singh NA.W.3, Assistant Grade - 3 in the Offlce of R.T.A., Ambikapur, has stated that he has come with brief of driying iicence of Vinod Kumar, driver of offending vehicie. He admitted that Ilcence was Issued to Vinod Kumar w.e.f. 12.6.1989 tii! 11.6.1994 and was renewed and vaEEd upto 18.4.2006. He aiso admitted that driver Vinod Kumar was having iicence for L.M.V. which is not for driving taxi or rented vehicles. According to him, the register is Ex.P.N.A.3-4 and the photocopy ofthe same is exhibited as Ex.N.A.3-4 (C). He aisoadmitted in his cross-examination that the person who is having ilcence to drive private vehicie cannot drive commercia! vehicle. !n this mannsr, It is heid that driver of offendlng vehide was holdlng L<IVI.V. iicence which entitles the driver of the offending vehicle drive oniy private vehicles and the '" •..r<--Ff- ,,-'£.;' -T. •^ offending vehicje was insured as private car and not as commercial vehide. 11 < So far as the contention made- by the iearned counsel for respondent No.1 that the burden is on the insurance company to prove its by adducing evidence or producing necessary documents, Es concerned, thls Court, 'A/hlle deaiing with the point In & Another v. Chandrika & Others, (1) C.G.LJ. 307 held as under: "In the circumstances, even if evidence has not been adduced by the insurance Company, in cross-examination of the ciajmanfs witnesses defence counsel has been able to bring on record that the tractor troiley in questlon was being used on hlre basis. Hence, we are of the consjdered opinion that on the of the materia! avaiiable on record, as has been held by the Apex Court In National Insurance Co. Ltd. Vs. Swaran Slngh and others, 2004 AiR SCW 663, the Snsurance Company has been able to djscharge its burden regarding breach of the contract of insurance. In order to discharae burden st Is not necessary that burden can be discharged only • by adducing evidence by the party. Burden can be discharged based on any material cn record, documents availabie on record or by bringing facts cn record in cross-examination of witnesses of the opposite oarty. Suffjcient material js avaiiabie on record in cross-examination of the claimants1 witnesses and aiso the evidence of the driver of the tractor." li ^ 12. Relying upon the above dtation, Et is held that the appellant / insurer has been abie to discharge its duty by proving that at the time of accident the driver was not hoEding a va!id and effectlve Sicence and thereby committed breach of contract of insurance. 13. As already discussed above that the Jeep v</as Insured for private purpose and on the of accident it was being used for commerciai purpose and thus the owner has breached the policy of l.nsurance and that the insurer has been abis to prove its case, therefore, the insurance company has rightiy been exonerated from its iiability to . pay compensatlon. 14. Now, as regards compensatlon awarded by the Tnbunal, j am of the considered opinion that the Tribunal has rightiy awarded compensation of Rs<95,000/~ which Is just and reasonabie compensation. The Tribunai has a!so rightiy held the appeilant and respondent No.2 ilabl's for payment.ofcompensation to claimant. '^^^^ - "Ml^ ^l '; :A ::^ •^ 15. For the foregoing reasons, ! do not find any scope to int-erfere in the Impugned order. 16. ConsequentSy, the appea! fiied by.the owner, being-devoid of merit and substance, is iiabie to be and is hereby dismissed. No order as to costs. Sd/- R.L. Jhawar Judge