HIGH COURT OF CHHATTISGARH AT B3LASPUR Appeiia.nts (Non-appljcant No.2.) 1, i-appljcant No.1) Respondents (App!icant NoJ) (Appiicant No.2) (Appiicant No.3) 2. 3. Shrishabh Jain S/o, M.C. Jaln agod about 45 years R/o MaJvly.anagar Durg, Dlstt.-Durg (C.G.) (Owner of Motor Cycle Hero Honda SpIendorPJus NO.C.G.07-L.H.9853) Kishan Dewangan S/o Ramesh Dewangan, aged aboyt25.years,R/o ShanRernagar Durg, near Durga Chowk (House of Banti Neware) TahsiS & Dlstrict - Durg (C.G.) (Driver of Votor Cycie Hero Honda Splendor PSus No.C.G.07-L.H.9853) Versu^ Smt.Madhu Pithiiya, W/o Late Manlsh Pithliya, aged about 28 years, Occupation-Housewife, Ku. Richa Pithiiya, D/o Late Manish Pithiiya, aged about 8 years, Karan Pithliya, S/o Lats Pithilya, aged about 6 years, Mantsh to»N|m»^ (Appiicant No.4) (Non-appiicant No.3) Rsspondent Ho.2 & 3 through their mother namely Smt.Madhu Plthliya, W/o Late Manish Plthliya, aged about 28 years, Occupation-HQusewtfe. 4. SmtJasu Bhai Pithliya, W/o Lats Manohar Bhai Pithliya, aged about 60 years, AIS R/o Padmanabhpur Durg House No. L.i.G. 424, PoJice Station-Clty KoSwali Durg, Tahsii and DJstrict-Durg (C.G.). 5. The Regjonat Manager, Natlonal Insurance Company LimlSed, Regionai Office-Aakash Ganga Compisx, Supeia ~ Bhiiai, Tahsii & Dlstrict •" Durg (C.G.) (insurer of Motor Cycie Hero Honda Splendor Pius No.C.G.07-L.H.9853) (Mlsc. appeai under Sectlon 173 ofthe MotorVehlcie Act, 1988) D8: Hon'bie rir.T.P.Sharma & Hon'ble i^r.R.L.Jhanwar, J.j. Present:- SVIr. Jitendra Gupta & Mr.Rishi Rahui Soni, counsei forthe appeliants. ;iW!iiiiS i. ........... i. ^•^.s^<ta. '% 1 ^Nfc ORDER(ORAL) (Passed on 27m Ju!y, 2010) T.P.Sharma. J. 1. By thls appeai, the appeiiants have chailenged the jegaiity & propriety of ths award dated 14.12.2009 passed by the 9 Additionai Motor Acddent Giaims Tribunal (for short "the TribunaJ') (F.T.C.), Durg in Motor Acddent Clalm Cass No.67/2009, whereby the Tribunai has awarded compensation of Rs.3,91,436/- against tho appeliants i.e, ownor ofthe motor cycle on account of doath of Manish Pithiiya in tho motor accident. 2. The award is smpugned on the ground that respondent No.5 was undor obiigation to prove the fact that the appeilants havs viojated the condition of insurance Company wiiifuiiy, but the Tribunai has not considsrsd such question and thereby committed lilegaijty. 3. Briof facts necessary for disposal of thss appeai are that on account of death of Manish Pithiiya as a resuit of motor accident, ciaim pstitson was fited by respondents No.1 to 4 against ths present appeiSants i.©.owner & driver of the vehicie and respondent No.5 insurancs Company, in whlch pr©sent appoiiant No.1 has fsted the ropiy that respondent No.5 was under obijgation to pay compsnsation on account of such motor accident. AppeESant No.1 has admitted ownorship of the vehjcioand tho fact that vohicle was clrivon by appeslant ?NSo.2 at tho time of accident, By fiilng the reply, respondont No.5 has aSioged that deceasod Manish Pithliya was piijion rlder and appeliant No.2 was not havlng any vaisd SJcenso at the timo of driving tho vehlcie and thorofore, vioiated thc condition of tho policy, Ator affording opportunity of hearing to the parties, iearned Tribunal has allov^ed the ciaim of ths ciaimants against the appeiiants and absoived respondent No.5 from ths iiabiiity. 4, We have hoard iearned counsel forthe appeSiants and perused tho rocord of the Ciaims Tribunai. 5. Loamod counsei for tho appeiiants submits that prosent respondont No«5 was under obiigation to pload and prove tho aileged breach of poiicy condition by appeiiant No.1 l.o. owner of the vehsdo, but respondont No.5 has faijed to pioad and prove such facts, therefore, jn tho absence of such provs, ths appeilants are not Ejabie for any compensation. 6. Learned counssi piaced reiiance in the mattsr of Oriental insurance Co.Ltd. v. Nirarudeen in which the High Court of KoraSa has held that ths insurance hv^ ' '%^^~.-^ ..^" B/- -3 CoiTipany is requlred to prov@ the fact that venicie was usod In vloiation of tho Insurance poiicy. 7. In the prosont case, respondent No.5 Insurance Company has not pieadod in speclflc words and terms that appellant No.1 was havin.g knowledge that appellant No.2 was driving tne vehldo without having any iicense and thoreby ho has vsolated the condition of the pojlcy. Respondent' No.5 has aiso not adduced speclfic ovldence to that offect. Appellant NoJ hlmself has filed written statomont, in whlch ho has not pieadod tho fact that whethor at the time of givlng tho vohide to ©ppeiiant No.2, he has taken due care reiating to drivlng ilcenss that appellant No.2 was having valid iicense to drive the vehlcle. Appeliant No.2 himseif has admittec! that at the time of accldent he was not havlng any license to drive two whesiers. 8. SpeciaS fact rsiatlng to the knowiedgs that whether appsliant No.2 was having any vaiid llconse or appellant No.1 has taken proper care arad has insured at the time of giving vehscls to appsilant No.2 was oniy wsthln the knowledge of appellant No/1, but reason best Rnown to appellant No.1, he has nesther pieadod this fact nor adducod ovidence and oxamsned •himself to unfold the reai story or to state the fact which was only withln hls Knowledge, thsrsby withheid th©evidencs which was on!y within hls knowiedgs. 9. Pieadlngs and cvjdenco of respondent No.5 were in these circumstances sufficient to alicgo and provo the fact that appoiiant NoJ has viojated the condition of insurance poiicy, 10.in the matter of Nlrarudeen (supra) It has bsen hsid by the Hsgh Court of Kerala that driver was having not vatld iicsnse, but thss Is a case of no llcense. At isast, owner of the vehicle was required to examine and ensure prima facie that drivsr was having soms i'scsnss or not to drive the vehicie. 11.in thess csrcumstances, st Is dlfflcult to hoid that respondent No.5 has not dlscharged its iiabiiity and has raot pieadsd and proved th©fact which was wittiin §tsRnowledgo. . 12.ConsequontEy, wo do not flnd any morit in this appeal. The appeai being dsvoid of merit is ilabie to be dismissed and it is hereby dismssssd. No order as to costs. ____-—-"—~ "~ R.L. Jhanwar Judge Sd/- T.P. Shanna Judge