IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. fC) No. 3 l ^- / 2011 Ban^ APPELLANT : Branch Manager, The Oriental Insurance (N.A No.3) Company Limited, Main Road, Jagdalpur, Distt. Bastar-(C.G-) VERSUS RESPONDENTS : 1. Ayatu S/o Konda Madiya, Aged about 55 years R/o Village Mutanpal, P.S. - Kodenar, Distt. Bastar-(C.G-) 2. Chandrapal S/o Banshi, Aged about 52 years, R/o Rouf Para, Jagdalpur, P.S. - ' Bodhghat, Distt. Bastar-(C.G.) —Driverof the Vehicle— 3. Satyendra Singh Kushwaha, Aged about 52 years, S/o Shri Narsingh Pal Singh Kushwaha, R/o ^anti Nagar, Jagdalpur, P,S, Bodhghat, Distt. Bastar-(C.G-) —Ownerof vehide— CLAIMANT N.A.N0.1&2 y/.^ i^y °; «y MISC. APPEAL U/S 173 OF THE MOTOR VEHICLES ACT HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (Q No. 310 of2011 €) APPELLANT NANo.3 RESPONDENTS CLAIMANT Branch Manager, The Oriental Insurance Company Ltd. VERSUS Paiko & others Misc. Appeal (QNo. 311 of2011 APPELLANT NANo.3 RESPONDENTS CLAIMANT Branch Manager, The Oriental Insurance Company Ltd. VERSUS - Chaitu Ram @ Saitii & others Misc. Apoeal (C)No. 312 of2011 APPELLANT NANo.3 RESPONDENTS CLAIMANT Branch Manager, The Orienta! Insurance Company Ltd. VER8US Ayatu & others Misc. Appeal under Section 173 ofthe Motor Vehicles Act SB: Hon'ble Shri Justice N. K. Aearwal Present : Shri Hanuman Prasad Agrawal, Advocate for the appellant. AWARD (Passed on 15.03.2011) Heard on admission. 1. . By this common award, MA(C) Nos. 310/11, 311/11 and 312/11 are being disposed of as the common facts & issues are involved in all these appeals and are arise out ofsame accident. /c^T ^^ ^-s'h 1 2. These appeals have been directed by the Oriental Inswanoe Company Limited against the award dated 16.12.2010, passed by the IIIrd Addl. Motor Accident Claims Tribunal, Bastar, Jagdalpur (for short 'the Tribunal') in claim case Nos. 250/09, 279/09 and 286/09 respectively. 3. As per claimants' version in all claim cases, on 10.03.2006, while the appellants were traveling in Bus bearmg registration No. CG-17- / ZA-0156, the said Bus tumed tiirtle near Silakjhodi culvert as a result ofwhich they sustained multiple injuries. 4. The claimants preferred claim petitions under Section 166 of the Motor Vehicle Act, 1988, (for short 'MV Act') claiming '^- compensation for the injuries sustained by tfaem in the said accident against the driver/owner and insurance company of the Bus in question. 5. The Tribunal, on a close scrutiny of the evidence led, material placed and submissions made by the parties, awarded a sum of Rs. 1,07,800/- in case No. 250/09, Rs. 1,00,000/- in case No. 279/09 and Rs. 39,400/- in case No. 286/09 to the concemed claimants as compensation for the injiiries sustained by them in the accident along with interest @ 6 percent per annum from the date of application till its realization holding the appellant/insumnce company also liable for its payment. 6. Shri Hanuman Prasad Agrawal, leamed counsel appearing for the /- appellant would submit: appellant/insurance company has proved by examining RTO person of Muradabad RTO as their witness that licence ofdriver ofthe offending Bus was fake. Despite above fact, the Tribunal has erroneously fastened the liability upon the appellant/insurance company and therefore, the appeals desen/e to be allowed. 7. I have heard the counsel appearing for the appellant/msurance company and perused the award impugned. 8. Leamed Tribunal having found owner of the vehicle engaged the driver after getting his licence verified from Jagdalpur R.T.O. and after finding him an experieneed driver, thus he has not violated any conditions of the policy, fastened the liability of payment of compensation upon the Insurance Company. 9. In order to avoid liability, the insurano^ company is required to establish the defence and also willflil "breach" on the part of the owner of vehicle; the burden of proof wherefor will be upon them. In the instant case, the appellant/insurance company has failed to discharge its burden. Merely because licence was fake, the insurance company cannot be absolved from its liability to pay compensation. :-: 10. The Supreme Court in case of Premkumari & others v. Prahlad Dev & others1 has held: it would be crystal clear that ifthe owner, after verification satisfied himself that the driver has a valid licence and driving the vehicle in question competently at the time of the accident, there would be no breach of section 149(2)(a)(u), in that event, the insurance company would not then be absolved of liability. ' 2008 AIRSCW 682 ,^^t^^'%.. ^" <ih :... ' .^- 'J .^ v^.. ^y^' ^y 11. Three Judges bench of Supreme Court m case ofNational Insurance Co. Ltd. v. Swaran Singh and others has held ia para 110 (iii) 110 (iv) as under: "(iii) The breach of policy condition e.g. disqualification of the driver or mvalid driving licence^ of the driver, as contained in sub-section (2)( a )( ii ) ofSection 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or iiivalid driviiig liceiice or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the iiisurer against either the insured or the third f parties. To avoid its liability towards the insured, the insurer has to prove fhat the insured was guilty ofnegligence and failed to exercise reasonable care in the matter of fiilfilling the condition ofthe policy regardmg use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevaiit time. (iv) Insurance companies, however, with a view to avoid their liability must not only estqjblish the available defence(s) raised in the said proce^dings but rnust also establish "breach" on the pail ofthe owner ofthe vehicle; the burden ofproofwherefor would be on them. 12. By applying the ratio of law laid down by the Supreme Court in the above referred cases in the facts and circumstances of the case, it is crystal clear that the appellanV Insurance Company failed tq establish willful breach on the part of the owner of the vehicle and the ground raised by the leamed counsel for the appellant is sans substance. No other point has been raised. 13. For the reasons mentioned hereinabove, the appeals being devoid ofsubstence are liable to be and are hereby dismissed in limine. Sahu Sd/- N.K. Agarwal Judge '2004 (3) SCC 297