HIGH COURT OF CHHATTSSGARH AT BiLASPUR SB: Hon'bie Shri Justice R. L. Jhanwar, MA. fONo.1401 of 2008 APPELLANT RESPONDENTS The Oriental1 insurance Company Limlted. Versus Smt. Shivbati and otEiers. ORi^ER For Pronouncement ofOrder .04.2011 Sd/- R.L. Jhanwar Judge ^ 4 H!GH COURT OF CHHATTISGARH : S3LASPUR SINGLE BENCH: HONSBLE SHRI R.L.JHANWAR. J. Mjsc. AD;oea! (0 No. 14Q1oi2008 APPELLAjSiT RESPONDENTS CLAiiVSANTS The Oriental Ensurarice Company LTmited, Divisionai Officer, Post Box Number 51, Malviya Nagar, Durg (C.G.) VERSUS Smt. Shivbati W/o Budhram age 22 yrs., through guardian and next-friend due to menta! injury, wife of Budhram Sahu, S/o Kejauram Sahu, age 24 yrs., resident of village MagarJota, Post - Tedesara, District - Rajnandgaon (C.G.) Rupesh Kumar Sahu, S/o Sitaram Sahu, age 22 yrs., resident of Tedesara, Post - Tedesara, District Rajnandgaon. Sitaram Sahu, S/o !ate Budhram Sahu, age 47 yrs., resident of vil!age & post Tedesara, District - Rajnandgaon (C.G.) APPEAL UNDERSECT!ON 173 OF THE IVIOTOR VEHICLES ACT. 1988 Appearance: Shri Sudhir Agrawal, counsef for the appellant. Shri MX.Bhaduri, counsei for respondent No.1 / None for respondents No. 2 & 3. RESPONDENTS/NON. APPUCANTS ORDER (Passedon /<§.04.2011) This appeai by the insurance company is directed against the award dated 25.8.2008 passed in claim case No. 31/2008 whereby the learned Additiona! Motor Accidents Claims Tribuna! (F.T.C.), Rajnandgaon (for short 'the Tribuna!') has awarded a sum of Rs.48,441/- as totai compensatEon aiong with interest at 6% per annum from the date offifing ofclaim petition tiii the reaiization of actuai amount. 2. According to pteadings ofthe daimant, on 11.06.2007 atabout 5.30 p.m. respondent No.l/ciaimant was going with her husband on bicyde to her house, on way in front of Rastogl Factory, the speeding Jeep bearing ^ ^ No. C.G.07 ZA / 0985 (for short 'the offending jeep), which was being driven by respondent No.2 in a rash and reck!ess manner, hit the bicycle, due to which, the claimant fell down on the spot and received severe injuries on her stomach and head. Due to injuries sustained by her, she remained admitted in Shah Nursing Home, Tedesra, thereafter she was referred to Jawaharlal Nehru Hospital, Sector-9, Bhiiainagar, where she remained admitted w.e.f. 11.06.2007 till 21.06.2007, 04.07.2007 till 06.07.2007 and again 15.10.2007 till 22.10.2007 and during the course of treatment she was being given treatment on reguiar basis, despite that, her memory power has become diluted. 3. .Ciaim petition seeking compensation of Rs.10,48,000/- on various heads ^jyas filed before the Tribunal. Respondents No.1 & 2 i.e. owner and driver, filed t'neir written statement denying ati averments made in ciaim petition. According to them, husband of the ciaimant was negiigent, due to which, accident took place. Simiiariy, appeliant/insurance company, respondent No.3 before the Tribunai, aiso fiied its written statement denying all averments pieaded therein. 4. The TribunaE, on close scrutiny of the evidence. materia! piaced and respective submissions made before It, hefd that on 11.06.2007 the claimant sustained Injuries due to rash and negiigent driving of driver of offending jeep and considering the nature and number of injuries proved to have been sustalned by the ciaimant in the motor accident and the amount proved to have been spent on her treatment awarded Rs.10,441/- towards expenses incurred on treatment, Rs.8,000/- towards expenses Incurred on attendant, speciai diet and conveyance in the course of treatment and Rs.30,000/- towards !oss of income, permanent disabiiity and physicai and mental agony. Thus, the Tribunal, after working out total compensation of Rs.48,441/- for the injuries sustained by the ciaimant in the motor accident, has fastened the iiabiiity to pay compensation on the appeiianVinsurance company. 5. As there is no appeal by the appeIlanVinsurance company, claimant and owner and driver against the finding of rash and negiigent driving by the driver of offending jeep, therefore, the findlng thereof has now attained ^m^, •^ -4' finaIEty. However, aggrieved by the impugned order En so far as it reiates to fastening liabiiity on the insurance company, the appetEant/insurer has preferred this appeai whereas the claimant has aiso preferred i.A.No.3 i.e. cross-appeaE for enhancement ofcompensation. 6. So far as the appeal of insurance company is concemed, Et is cfear from the evidence and pieadings that offending jeep was, on the date of accident, insured with the appelianyinsurance company. The oniy contentEon of the Eearned counsel for the appeiiant / insurer is that the driver of offending jeep was not hoEding a vaSid and effective driving ficence. On perusai of evidence of Tularam Kashyap, N.A.W.2, adduced on behaff of insurance company, jt Es ciear that he is the empioyee of Office of Additional RegionaS Transport, Rajnandgaon, who brought original record along with him. Based on the original record, this wltness has deposed that at SI.No.211, the driving licence of driver of offending jeep was mentioned, according to which, its number Es R/426/RJN/05 and was issued on 10.03.2006 tifl 9.3.2026. As per his evidence, the driving licence entitles the driver of offending'jeep to drive motor cycle and fight motor vehEcle. it has aiso come in his evidence that driver Rupesh Kumar cannot drive commerciai vehicle or light transport vehicie whereas the offending jeep Is a passenger carrying commercial vehide, as Is evldent from Ex.D.3, which is an insurance poEicy. A perusai of Ex.D.3 aiso shows that the offending j'eep is a commercial vehicle. Ex.D.4 is a photocopy of driving iicence showing the driver - Rupesh Kumar to drive onty motor cycle and light motor vehicle. N.A.W.2 Tularam Kashyap was cross- examined by respondents No.2 and 3 herein but nothing has been eiicited from his version to discredit his evidence. Sharad Thakkar, N.A.W.1, Deveiopment Officer of the Orientai insurance Company, has stated that the vehicfe was insuredwith them but the driver was not hotding a valid and effective driving ticence. In the matter of New fndla Assurance Co. Usf. v. Roshanben Rahemansha Fakir and Another, 2008 (3) T.A.C. 20 (S.C.) the Apex Court heid that driver being not holder of tegai, valid and effective driving licence, the insurance company cannot be heid iiable for making payment of compensation and definition of commercia! vehicle and iight motor vehicle has been given. In this view of the matter, the ^ini i iiii ^> driver being not holder of a valid and effective driving licence at the time of accident, the appeflant/insurer cannot be held liabie for making payment of compensation. 7. Since the appeliant/insurance company has discharged its burden by ieading cogent evidence that the driver was not holding a vaiid and effective driving licence at the time of accjdent, 1 am of the considered opinion; the appellant/insurance company should be exonerated from its liability to pay compensation. 8. So far as i.A.No.3, cross-appea! filed by the ciaimant for enhancement is concerned, the contention ofthe iearned counsel for the claimant that learned Tribunal has not considered the medicai documents produced by the ciaimant has to be seen. A pemsai of pleadings of ciaim petition and evidence adduced by Budhram, it is ciear that the claimant received Enjuries when she was going with her husband cn cyde, respondent No.2 herein caused accident. According to Budhram A.W.1, her wife i.e. the daimant remained admitted in Jawahar Lai Nehru Hospital, Sector-9, Bhilai w.e.f. 11.06.2057 til! 21.06.2007, 4.7.2007 ti!I 6.7.2007 and 15.10.2007 till 22.10.2007 i.e. for a period of 21 days. A.W.2 Dr. Ashok Thakur, who has examlned the ciaimant, has deposed that when the c!aimant was brought to him, her generaicondition was not so good and was in haif unconscious. He found one stitched wound over the head situated on right parietal region. According to CT scan, parieta! bone was depressed. It was also deposed by him that daimant was pregnant carrying 4th month and after carefully examining the claimant, he discharged her on 21 June, 2007 and thereafter she was brought to the same hospital on many occasions. He has further deposed that the claimant was required to take medicines upto three years and on account of injury on the head, bone was depressed, as a result of which, she may face difficulty in carrying weighty articies. In cross-examination, he has deposed that naturally depressed bones cannot be adjoined and cn account depressed bones on the head, the patient may face epiiepsy. Aithough he has admitted that where bone was depressed, it can be cured by operation, but paralyses the body on one part. 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SEnce the appellant/insurance company Es exonerated from its liabifity to pay compensation, the fiabiiity to pay compensation of Rs.48,441/- awarded by the Tribuna! as aiso compensation of Rs.31,000/- awardedby this Court fuiiy rests on respondents No. 3 i.e. owner. The insurance company may initiate proceedings for recovery of amount, jf any, paid by it, from the owner. Tfcie owner is granted three months time to deposit Rs.79,441/-. No order as to costs. Sd/- R.L.Jhanwar Judge