K- if^ @ ^ ^ -t L..__., IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARHI Misc.Aooeal No.A^^OF 2006? B.8 APPELLANT INSURANCE RESPONDENTS XCLAIMANTS ^ ^ '""^y ^^ r Oriental Insurance Company Ltd. Branch Itwari Bazar, Raigarh[CG) VBRSUS 1. Sampatlal s/o Surjo Sidar, aged f 55 years, Occupation-Teacher, Govt. Higher Secondary School, Orda, r/o Gram-Jharmuda, P.S. Pusore. z' ,••• ^, 'y DRIVER 7~ OWNER 2. Phoolmati w/o Sampatlal Sidar, aged 50 years, Occupation- Housewife, r/o Gram-Jharmuda, P.S. Pusore, District Raiffarh (CGL ^3. Fatte Singh s/o Ajit Singh, aged 36 years, r/o Gram-Mitthumuda, Hiranagar, Raigarh (CG). ,4. Gopiram s/o B.L. Jain, aged 60 years, r/o Near Goga Rice Mill, Jute Mill, Raiearh (CG). ^f" APPEAL U/S 173 OF MOTOR VEHICLES ACT AGAINSTJFHE AWARD/ORDER DATED 9vf2-2004 PASSED BY THE^BCOND ADDITIONAL CLAIMS TRIBUNAL. RAIGARH IN C.T. N0. .54/2003 ^-" Appeal valued at Rsl,17,000/- Court Fee affuced Rs.15/- The appellant respectfully begs to submit as under: K^.^ XI-HC-22 ^^ ^Nj<n^ ^TTi^^sco, [^Qii^y aff^r -^w _..1D.:...^.:..^?.:..)..Li.z/ --*^/ 200 ^§^Cy81 ^THT^ '^•^r -STT^T-^T f<rlJ5h ^^ 9h^ii<^ ^f^a ^' ^TT^T'^n^R'Hffpr DIVISION BENCH: HOrBL®SHRI V.K. SHRIVASTJ HON»BLESHRI DHIRENDRA MIS&IRA. JJ. 12/OS/2006. Shri Abhishek Siaha, Couns| None for the respondeut. Heard pn adinission aiid on This appeal under Section 1988 (for short, "tiie Acf) is 09/12/2004 passed by tlie Raigarh in Claiin Case No. 54^| Tribunal has allowed the petition under Section 166 of fhe Act 1,17.000/ - agamst the appeUao.t/ IIijd ai-iH Respondents No. 1 aad 2 lej^ of deceased Ku. Gayatd filed a ^ Act, claimnig eompensation on tli{ Gayatri aged about 18 .years- i|s 14/02/2003. Ku. Gayatri sus^ result of tliose iajuries, duriiig tl^ to fliat on 27/02/2003. Responijl registi'ation No. CG-13ZC/0141 caused tlie ·accide.nt. The -owner ancl at the relevaiit tmie vehicle ct)l<Ljicr<<rH 'WToTf ^ ^Q <f^^l< ^r'srf^w 3:n^?r IVA fis 'l for tlie appellailt IVI.C.P.NO. 184/2006. P.73 of tlie Motor Vehicles Act, d|rected agaio.st fhe award dated Additional Clamis Tribunal, 12003 vide which tlie leanied (51ed by respondents No. 1 aiid 2 awarded compensation of Rs. |respondents No. 3 aiid 4. + gal representatives bein.g pareiits 'tition under Section 166 of the grouud fhat their daughter Kii. let wifh a motor accident on amed severe injuries and as a m.eclical treatoient suceum.bed ant No.3 drivuig Truck beariiig by rash aad negligent meiiiier >ftlie vehicle is respdndent No.4 ^as iasyred witti appeUaiit, The ^ T XI-HC-22 ^TI^T^T R,Tii<^ ^nt^T 5h<-li<=b 'Hfia ^" •^' ^-^ ^I^Sd^, ^Tll^^Ko, [®i<r<«^^< STi^T "q^? -HWCTT ^^gl^ •M 200 •^^s' ^TT^T'^TT^R'^T -2-' claim was oppdsed by appeUaiit and 4. AppeUant/ Insuraiice the relevant tiiiie the vehicle wifhout valid driviag Hcence, conipensation. |as weU as by respondents No. 3 Co^paiiy also took a defence that at ^Tas driven by respondent No.3 tt|erefore, is not Uable to pay the Leamed Tribunal after duel fhat the driver had valid liceiicl but only fault on his part is renewed for 14/02/2003. The proved. Therefore, ttie Insiiraac^ Uability to pay fhe conipensaticj Uability on Insuraiice Coinpan.y of coiiipensation am-ouiit, The defeiice available.to Uability to pay tlie compensatic available under Section 149 of and effective diiving licence is o 149 (2) of fhe Act reads as below: s149(2) No sum sliall &e| sub-secfion (1) in respe^t unless^ before ihe copnm^ which ihe jiidg?nent or a\ chl^fcn^ll HFRTf ^ 'fe^ <p3l-^l< ^ ^Tf^FT ^^ appreciation of the evidence lield ^ for drivnig heavy goods vehicle, t^iat lie could not get his Ucence t)reach of conditiou has not been ;^. Conipaziy cannot escape from its tn, hence/ vide isiipugned award h|as also been fastened for paynieut I{asuraiice Conipaiiy towards its ^n aiisiag out of aii accident is flie Act. So far as defence ofvaUid ^noeraed, relevaiit part of S€ction payable by an insurer under o/ mzy Judgineni or award >m^meni of ihe proc^edifzgs in '^ard is gn^en the insurer had XI-HC-22 3^1'^T r<-<i<=b ^^\ 5^^icn <-if^^ I- "^T ^Nld<4, ^tl1^<l<o, PB«y11^ll< 3ffi^r '^^? 'W^I'^II 5bN8<^ •M 200 "^iE^r ^STT^T ^CTWHftn \—1^ Coifert notice ihrough ihe Claiins Tribunal of ihe respect ofsuchjudgfne^ is.stayed thereon pend^ng ivhojn notice of ihe bri^ so given shall be enii^et and 1o defend the a{ grounds, nmnefy- (a)ma(u) a condition or persons or by ang f^ej or by any person i^fio ^ or obtaining a dmHfidt discyialifiaiiign; or excli^ding Leamed couusel for the rendered by Hou^ble the Apex Ltd^ VB. SCW'663 contended tliat on tt vaMd and effective drivuig licei^ therefore, appellaiit/ Insuraiice | com.pensation, Hon'ble fhe Ape^ ^It i^ beyond u?ider. S. 1^9(. whojn notice chl^fd4ir1 'RTTOT'? 'fe^ <r3l^« '^3ti^TH3TI^T or, as the case ?nay be, ihe mnging of ifie proceedings, or in it or aiuard so long as exeaiiion an appeal, and an uwurer to ging ofany such proc^edings is ed to be fnade a paHy thereio ^tion an any of the foUowing dmm^g by a namedperson \erson zuho is not duly licensed, ^as been discfualifiedfor holding licenc^ during the period of ^peUaats relyuig on tiie judgment Court m Xati@aal C^ in 2004 t|ie date of accident, driver had 110 'e, to drive heav}/' niotor vehicles, Co., is not liable to pay tlie Court held that; . j^ny doubt or dispu^e that 'P of the Act an i^zsurer, to |qf , ihe bringing of any R^"-::.::-:^ .i: ;^^-±SM"w"a XI-HC-22 ^^ ^i^sd^, '^frcm^, ftcns^y ^c ffl^mT^TRI^ •M 200 CT^T-^T f^?W3Tj^T ^)^ich <lf^ci '3TT^T '^rfT^R: 'Hf^T - ^u spefpified perspn proceeding for d^ can defend the mentioned ther^ imth tfie wordS^ breach ofa implying that action woufd d^ policy. The saf conditions of d^ the insurer cari when (a) a nani^ (b) it was being\ not have a di^ driver is a obtaining a dm fs also to be (a| ivords used ai been dijferentl\j 'duly Ucenced'. ejfective licend^ acddent he terms ofS:141 to in^urance cs^ provision of a nature ins-d-v^ beneficent t<^ inferpreted diff^i that the provu e}(presszons differently. Tfz^ in S.3, therefor^ section^2) qf S\ Act The zuord^ section (2) of ^ The Irzsurmzce\ imth a view to only establisf^ raised in the sc^i m4y chl<Lir<rt<Ml<1 ^TR^Tf ^ ^S <P?|<^|< ^^Tf^R 3TT^T jpmpensation has been gii^en, ^ction on any of the younds ^in. Howeifer, Ci (a) opens 'ihat ifzere fzas been a condition of the policy,' ^ie nwurer's defence of the ^pend upon the terms of the Idsiib-clause contains ihree ^sjiznctive d^aracter, narnely, get away fro?n the Uability ^edperson drives the vehicle; \dri^en by a person who did \ly granted Hcence; and (c) discjualified for holding or \ing licence. Note of the fact lcen that whereas in S.3 the [e 'effeciive lic^noe\ it has worded in SJ^9(2} i.e., \If a person does not holdan as on tlie date of ihe \y be liablefor prosecution in 'pftheAct but S.1^9 penains regard ihird party risks. A statiite which is penal in a provt^ion zvhich is a third party must be zrently. It is also ivell-knoivn ?iwis coniained in differeni ire ordinarily construed word 'ejfective licence' used winnot be imporiedfor sub- /149 of ihe Motor Vehicles 'duly licenced' used in sub- 249 are used in pasi tense. Compames are, however, avoid their liability must not the available defencefs) id proceedingB but niust also XI-HC-22 ^^ ^i^fKn^, ^xii^^ [®s<n«^^< aff^r "q^^ WR^IT^W^ •^ 200 f^T^T* 31^T^T 'f^N'^^^r 5^^icti ^f^a ^TT^T ^TcTT^T'^TfiTT -•b- thetn. discha^ged, establish 'breach the vehicle; the ivould be on down any criiei would be would depend drcumstance of insurer is able to the irzsured cond regarding holdim driver or his quai relevant period, alloiDed to az^oid unless the said condition of d| fi^ndamental a^ contributed to thd^ Tribunals in inte^ zoould apply {the\ / the concept of ^ the defences S. 1^9 (2) of th4 whether the owi care to find out licence produced\ or othenmse), reqizirenients of detennined in ea{ Here, m. the iastant case.,| motor vehicles from 20/12/ 1990| was also aufhorized to drive to 11/02/1996 tliereafter drive| 19/08/2002. Leanied Tribunal| drivuig Ucence to drive heavy heai^y go4d ^FFrf^pft:T TTPPF^ff ^ 1^:?l> <f^l^l< ^T ^rf^R ^TT^T on the pa/1 of the owner of \burden of proof wherefor The Coufi cannot lay fta cis to how sa?d burden inasmuch as the same upon the facts .and iachcase. Even where the ^>rove breach on ihe part of ^nnng the policy co^zdition ofa tfalid licence by tfie ^fication to drive during the \the insizrer zuould not be |fe liability toivards insured ^reach or breaches on the ^iinng licsnce is/are so are^ found to have cause ofthe accident The ^preting the policy condiiion mle of mnin purpose/ and hdafnental breach' io allow to the irzsured under Act The qiiestion as to her /zas taken reasonable \as to whether the driving by the driver, (a fake one does not fiilfill the tfaip or not iinll have to be yzcase" driver had Uceuce to drive Ught to 12/07/2006. Undisputedly he goods vehicle from 20/12/1990 got his Ucence renewed up to held fhat the driver had a valid ds vehicle but his liceuce was not av(Mlable ± Kf XI-HC-22 ^TT^T^T f^w^n^T 9h^ii<^. <if^a -^r ^. ^^ ^i^ld4, ^Ti1<H^l(o, T®l<r<wy ':w ^IH^Il ^W^ •^ 200 "1^^87' 3TI^T ^ff^R ^TT -^- renewed for 14/02/2003 i.e., fnidmg oftlie Tribunalpn 14/q2/2003 was uot effective for waat of its [the date of occurrence. As per S, driver had a licence, but r^newal. eiiv]|sages shbll autljiority Sectiou 15 ofthe Act inay, on appUcation made to uncler fhe provisions of this A< expiry; provided tiiat io. aay a reiiewal of a liceuce is made nio4 its expny, tlie driving Iicence. date of its renewal. Fiirther, i^ Biade niore thmi five years aftei be efFectwe, the Ucensiag driviag licence, luiless fhe app] satisfactioii the test of conipet^ section (3) of section 9. Therefc^r been made within 30 days fromj shall take effective from. the da1 filed after fhe date of its expiiy, flie date ofits renewal. to 19/08/2002 to drive the hea^ took place on 14/02/2003. T} zone of consideration aiid if| Ucence was to be reiiewed. chi^f<n41ri ^i^oii ^ fe^t <p3i^i< ^ ^Tf^FT ^3TT^I Unclis^utedly tliat aiiy Ucensiiig authority L, reiicw a driviiig llcence isszied |t with efFect from. fhe^date of its ise where the application for the e than thirty days after fhe date of be renewed wifh efFect froni fhe is provided that if appUcation is fhe driviag Ucence has ceasecl to inay refuse to reuew the ^caiit uxidergoes and passes to its pnce tp drive refeiTed to ni sub- |re, if appUcation for reuewal has fhe date of its expiiy, the reiiewal Le ofits expiiy aad if appUcation is the renewal sliaU be effective from iitedly, tlie driver had a Uceiice iip y goods vehicles and flie accident ie renewal of Ucence was within appUcatbn had been m.ade, the did not plead tliat the driver Apj^llaiit XI-HC-22 ^qT^T-^T ' ^rli<=b ^^ s^ui^ ^f^a Raju -^t ^i^ii^^, ^Til^^Ko, i®i<ni^^< an^r "^ra^. ^iH^ll^HF^ •^ 200 'l^^r' ^TT^T'^err^R ^rf^r --[ did not file appUcation for rem or thereafter before tlie date of Here it is not out of plac< Uceiice Le., Ex, D/1 (c ) the p< eyes see fhat tlie renewal 20/08/1999 to 19/08/2004 ^ deposed that his liceilce w^ 20/08/1999 to 19/08/2004. proved tb be a falce or fraudulej correctaess. Iiisurance Company i.e.; obtigation to uideBinity fh^ successfully proves that fhe i^ breach. Here ia tlie iastaiit c4 by fhe. appeUaiit. Ou the it is appare.nt fliat the driver heavy goods vehicle, eveii entry^ No otlier pouits have be{ are of fhe coiisidered opiaion clevoid ofsubstance. In the. result, the appeal therefore, it is dig^iissed_jn Mm^ Sd/- V.K.Shrivastava Judge conttaiy. ImiiiT cbi<Lif^i<4i'i '^FT^ff"? ^^s <r^^i< ^T3^FT 371^1 ^wal with.in fhirty days of its expiry l>ccuiTeuce. to expose fhat froni perusal of the >rtioii c to c one caii by his naked jwas granted for the period froni ^ad fhe driver in. his e.vidence also ^.s renewed for fhe period froni Therefore, tiU it is pleaded aiid tit, presumptioii would be that of its appeUaiit caiinot ^scape froni fhe iiisure-d iinless fhe appeUant i^aisured is at fault ao.cl is guilty of [.se, no such plea has been taken iti'aiy, froni fhe driviag licence itself, Jhas a valid driviiig Uceiice to drive ofrenewalwas upto 19/08/2004. aii raised ui the iastaiit appeal. We fjiat the appeal has no merit and it is s Uable to be dismissed summadly, iie. Sd/- Dhirendra Mishra Judge [Tit^"^fe^