IN THE HLGHCOURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL [C] N0. ^90 /2010 IVlSIOii .SSIij&i MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT,1988 APPELLANT (Insurer) RESPONDENTS CLAIMANTS DRIVER OWNER Reliance General Insurance Company Limited, through - It's Legal Manager, Reliance General Insurance Company ^<^^\ Limited, 301-302 Corporate House, . 3rd Floor, 169 RNT Marg, Opposite Jhabua Tower, Indore (M.P-), Branch Office at Raipur, Ravi Bhavan, 4th Floor. Jaistambh Chowk, G.E. Road/ Raipur (Chhattisgarh). VERSUS 1. Smt. Brihaspati Bai wd/o Mehattar Das Mahant. aged about 30 years, 2. Mangal Das Mahant s/o Late Loharman Das Manant, aged about 75 years. 3. Smt- Pawra Bai Mahant, w/o Mangal Das Mahant, aged about 55 years. 4. Biju Das s/o late Mehattar Das Mahant Das. aged about 11 years, 5. Arjun Das Mahant s/o Mehattar Das Mahant, aged about 5 years. 6. Sarita Kumari D/o Late Mehattar Das Mahant, aged about 3 years, Respondent No. 4 to 6 being minor represented through mother Brihaspati Bai. All by caste- Panika, R/o village Ghatadwari, Tahsil Baloda, District Janjgir-Champa (C.G.l 7. Kaleshwar Prasad @ Kamleshwar, aged about 28 years, s/o Sunder Lal Binjhwar. R/o village Karmandi, Post- Naila, District Janjgir-Champa (C.G.) 8. Smt. Gurvinder Kaur w/o Gurjeet Kaur, R/o Pachperi Naka, Raipur, Tahsil & District Raipur (C.G.), at present residing at Barpali Chowk, Champa, District- Janjgir-Champa (C.G.) APPEAL VALUED AT Rs. 4,44.000/- 1 ".; ^y/. HIGH COURT OF CHHATTISGARH AT BILASPUR ,D APPBLLANT Misc. Appeal (C) No. l20of^Q10 Reliance General Company Limited. VERSUS Insurance RESPONDENTS Smt. Brihaspati Bai Wd/o Mehattar Das Mahant and others. (APPEAL UNDER SECT!ON 173 OF THE MOTOR VEHICLES ACT.1988) DB:-HON. SHRI N.K. AGARWAL, & HON. SHRI G. MINHAJUDDIN, JJ. PRESENT:- Shri Sourabh Sharma, counsel for the appellant. Shri H.S.Ahluwalia, counsel for the respondents No.7 & 8. None for respondents No. 1 to 6. ORAL ORDER (16-08-2011) Per N.K.Aearwal, J. 1. This is an appeal preferred by the Reliance General Insurance Company Limited against the award dated 26.10.2009 passed in C.T.No. 102/2008 by the Additional Motor Accidents Claims Tribunal, Kafghora, Korba. 2. As against compensation of Rs.29,15,000/- claimed by the widow, parents and minor children of deceased Mehattar Das by filing claim application under Section 166 ofthe Motor Vehicles Act (henceforth 'the Act'), the learned Tribunal has awarded a total compensation of Rs.4,44,000/- along with interest @ 8% per annum from the date of claim application till its actual payment, holding the appellant/insurance company liable for payment of compensation. 3. The learned Tribunal, on a close scrutiny of the evidence led, held: the deceased died on account of injuries sustained in the accident on 01.04.2008 due to rash and negligent driving by the driver of the offending vehicle Hywa 51 bearing registration No. C.G.04 JA 3766; insurance company is liable for payment of compensation as the insurance company has failed to prove violation of policy conditions; assessed and awarded the aforesaid amount compensation to the claimants for the death of deceased - Mahettar Das. 4. By referring the document (Annexure-A) annexed with the application preferred by the appellant/insurance company under Order 41 Rule 27 ofthe C.P.C. for production of additional evidence in appeal, Shri Sourabh Sharma, learned counsel for the appellant/insurance company would submit: driving licence held by the driver of the offending vehicle was fake, and therefore, the learned Tribunal has erred in fastening the liability of payment of compensation upon the appellant/insurance company. 5. On the other hand, Shri H.S.Ahluwalia, learned counsel for respondent No.7 & 8 would submit: the driver was examined in the case; he also filed his licence before the Tribunal; and the insurance company did not ask any question to him, therefore, the appeal preferred by the insurance company being devoid of merit is liable to be dismissed. 6. We have heard learned counsel appearing for the parties and perused the record of the Tribunal including award impugned. 7. For the reasons best known to the appellant/insurance company, the appellant/insurance company did not press its application filed under Order 11 Rule 12 of the Civil Procedure Code for discovery of driving licence before the Tribunal; did not cross-examine the driver on the point being raised here in the instant appeal nor did lead any evidence in thatbehalf. ^.-•:'-. '^ i0/ 8. In view of above, in our opinion, no ground has been made out to admit the additional evidence sought to be produced by filing application (I.A.No.2) under Order 41 Rule 27 ofthe C.P.C. Accordingly, I.A.No.2 is rejected. 9. It is trite law, the'burden to prove the defence taken in the written statement by the insurance company is upon it. The appellant/insurance company has utterly failed to discharge its burden. After passing of the award, any report filed by the appellant/insurance company showing that the licence of the driver of offending vehicle was fake one itself is not good ground and will not absolve the appellant/insurance company from its liability inasmuch as the appellant/insurance company has to prove two things, one; the driver was not holding valid and effective driving licence and second; there is willful disobedience on the part of the owner of the vehicle. Admittedly, in the instant case, no evidence has been led by the appellant/insurance company for discharging its burden. The Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 has held in para 110 (iv) to (vii) as under: (<110. The summary of our findings to the various issues as raised in these petitions are as follows: xxxxxxxxx xxxxxxxx xxxxxxxxx xxxxxxxx (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. .^ ^. "•^- :'h (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case/? 10. For the foregoing, since the appellant/insurance company has utterly failed to prove its defence, the learned Tribunal has not committed any illegality in fastening liability to pay compensation upon the appellant/insurance company. 11. The appeal, being devoid of merit, is liable to be and is hereby dismissed. 12. No order as to costs. Sd/- N.K.AgarwaI Judge Sd/- G. Minhajuddin Judge '&