BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL fCI N0. 72008 ^N MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 APPELLANT MSURER ^TCICI Lombard, General Insurance Gompany Limited, Registered office: ICICI Bank Towers, Bandra- Kurla, Complex, Mumbai, 4000 51, ^ ^ ^ ^through its Legal Manager, ICICI ..l-^" i .A^y^> Lombard General Insurance RESPONDENTS ^kIVER .^";1. OWNER ^" CLAIMANTS Company Limited Lal Ganga Shopping Mall, 3rd Floor, G.E. Road, Raipur (C.G.). VERSUS Dashrath Manjhi Udia, son of Siddheshwar Manjhi, R/o village & P.0. Siltara (Bhatapara) P.S. Dharsinwa, District Raipur (C.G.). Smt. Iqbal Kaur w/o H.S. Arora, R/o Gurunanak Nagar, Raipur (behind Gurudwara) Tah. & District Raipur (C.G.). ^ 3, Aatmaram Nishad, aged about 42 years s/o Kejuram Nishad. Smt. Dharmin Bai aged about 40 years, w/o Aatmaram Nishad, R/o village Atari Post Tendua, P.S. Aamanaka, District Raipur (C.G.) {.^ HIGH COURT OF CHHATTISGARH AT BILASPUR MA(C)No. 410 OF 2008 Appellant Insurer Respondents ICICI Lombard General Insurance Company Limited Versus Dashrath Manjhi Udia & Others Misc .Appeal under Section 1 73 of Motor Vehicles Act. 1988 (SB: Hon'ble Mr. N.K. Aaarwal. J.l Present : Shri Sourabh Sharma, Advocate for the appellant. Shrj SC Verma, Advocate for respondent No. 3 & 4. ORDER (Passed on 25th day of June,2010) 1. With the consent of the parties, the matter is heard finally. 2. This is appeal filed by the insurance company against the award dated 13.02.2008, passed by the Ist Additional Motor Accident Claims Tribunal, Raipur (for short 'the Tribunal') in claim case No. 35/2007, awarding Rs. 1,62,500/- as compensation in favour of claimants, holding the appellant/insurance company liable for its payment. 3. Brief facts of the case are that, on 10.01.2007, the Driver of Dumper bearing registration No. CG-04-G-1050 dashed Mukesh Nishad as a result of which he died. 4. The claimant i.e. father and mother of deceased Mukesh Nishad ftled a petition under Section 166 ofthe Motor Vehicles Act, 1988 (for short 'MV Act'), daiming compensation to the tune of Rs. 5,06,000/- against the driver/owner & the appellant for death of their son in the said accident. 5. The driver and owner of offending vehicie rernalned exparte before the TrlbunaS. / ^f "-^ 1 ^Ssfs.. 1 ^•&n'^sy' 6. The appellant/insurance company filed its written statement in which a specific defence has been taken that the driver of offending vehicle was not holding valid and effective driving license at the time of accident. However factum of insurance was notdenied. 7. The Tribunal, on a close scrutiny of the evidence led by the parties, the material available on the record, and submissions made by the parties, held the driver of offending vehicle responsible for the said accident; assessed compensation at Rs. 1,62,500/- payableto the claimants, awarding the same against the respondents jointly and severally; rejecting the defence taken by the appellant/insurance company. Hence this appeal. 8. Shri Sourabh Sharma, learned counsel appearing for the appellant/insurance company would submit that as per seizure memo in criminal case (Annexure P/4), driving license was not seized and therefore, it may be presumed that driver was not holding valid and effective driving license at the time of accident and as such learned Tribunal went wrong in fastening liability upon the insurance company for payment of compensation. 9. On the other hand, Shri SC Verma, learned counsel appearing for respondent No. 3 & 4 would submit that it is for the appellant to prove defence taken by them by producing legal, clinching and cogent evidence in this regard in which the appellant utterly failed. He would further contend that even tftherwise in the final report of criminal case there is mention of seizure of driving license and therefore the appeal desen/es to be dismissed. 10. I have heard the counsel appearing for the parties, perused the award impugned and records of court below. fi:^tiSSi:SiiSi^ 't^^M^i-tSaiS ^iSiii^iiSM^iSiiSSi^fM'M .« 11. It is trite law that it is for the appellant/insuranee c6mpany to prove its defence 1:akeri in the^^p^ ^Unchmgandwgentevidence.M^ theappellaniintheH'writte^s^merrtthatth^drhreroFoffending vehide was nbt holding valid and effective^ timeofaccideht,buttQsul^ntiateth^same.nothinghasbeen brought on reGOrd nor any cogent and clinGhjng eviderice has ^ :been,adduced.: ' ;;1. ••, :'/..''1 ^. .•'' "• ', i-1 12. A.S. Upadhyay (Witness) examined bythe appeljant has bnly said \- thatthelicensewasncrtproduc^t>e^ has written in the seizure memo that drh/ing licensewas not there. But, it appears from the criminal case that at^ ^^^^ submitting flnal report, driying Ircense was seized. 13. Th&^ppellantjr^Nher^mjnedt^d^ vehide to show thafdrh^ v^ hot holdm driving license. Nothing has been brought pn recbrd t6 suggest that the driver was witHout any license. 14/ In view of abov^, 1 do not find raised by Shri Sharma and the same is rejected. No other points havebeenTaised. 15. Ih the result, the appeal being devoid of substance is liable to be and isherebydismissed. No order astocosts. Sahu Sd/- N.K-Agarwal Judge n r H :li ^_J.:.::....j.^