^t... ...^ u IN THE HON*BLE HIGH COURT OF CHHAmSGARH AT BILASPUR Misc. Apueal {C} No. 9.^2-^ /2008 APPELLANT ^" iSPONDENTS ^^ ..-^i^ :y^> Allianz General Insurance Company Limited, Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur (C.G.) VERSUS l^ Smt. Hiraundi Devi Wd/o Late Balram Mahilange, age 28 years, Amit Kumar S/o Late Balram Mahilange, age 08 years, Kumari Neha D/o Late Balram Mahilange, age 06 years, Sumit Kumar S/o Late Balram Mahilange, age 03 years, No. 2 to 4 are minor represented through natural guardian mother respondent no.l Smt. Hiraundi Devi Mahilange, All Caste-Satnami, R/o Village, Mulmula, Present Address Jarhabhata, Bilaspur (C.G.) MEMORANDUM OF APPEAL UNDER SECTIOltuJ73 OF THE MOTOR VEHICLES ACT 1988 •.:..••.^.^iT..:'^:.!,^ ./v^ ^^%.. '^ \ ^'^^ ^..S^CA ,.< HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma MiscellaneousADpeal (C.l No.225 of 2008 Bajaj Allianz General Insurance Company Limited versus Smt. Hiraundi Devi and others ORDER Postfor n-08-2011 '7 Sd/- R.S. Sharma Judge ,-'^^:; ^'^ ^.-^J HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shyam Sharma Miscellaneous Appeal (C.l No.225 of 2008 Appellant versys Respondents Bajaj Allianz General Insurance Company Limited Smt. Hiraundi Devi and others Present: Shri Sachin Singh Rajput, counsel for the appellant. Shri Goutam Khetrapal, counsel for the respondents. Miscellaneous Appeal under Section 1 73 of the Motor Vehides Act. 1988 ORDER (Passed on (^ August, 201 1) This appeal has been preferred by non-applicant Bajaj Allianz General Insurance Company Limited challenging award dated 31- 12-2007 passed by 8th Motor Accidents Claims Tribunal (F.T.C.), Bilaspur in Claim Case No.53/2006. / 2. Brief facts of the case are that on the date of accident, i.e., 29- 11-2005, at about 6:30 P.M., deceased Balram Mahilange was coming from Village Jorela on a motor cycle bearing registration No.CG 11 BA 3313, at that time, he met with an accident on Pamgarh-Mulmula Road. He sustained injuries in the accident and succumbed thereto. Wife, sons and daughter of the deceased preferred an application under Section 163-A of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') before the Tribunal claiming compensation of Rs.10,80,000/-. L ^ / . ^^^ 1 / .€ .4'' ;la ^ 3. The Tribunal,allowing the claim of the claimants in part, has awarded a sum of Rs.1 Lakh as compensation in their favour fastening liability to satisfy the award on the insurer of the motor cycle. 4. Shri Sachin Singh Rajput, learned counsel for the appellant/ insurer of the motor cycle argued that the deceased was not holding any valid and effective licence to drive the motor cycle. The claimants have not been able to produce a licence issued in favour of the deceased to drive the motor cycle. The insurer of the motor cycle had written a letter to the claimants regarding submission of information about the driving licence of the deceased to the insurer but they did not submit any information about the licence. Learned counsel submitted that the Tribunal did not afford the insurance company proper opportunity to obtain information about the driving licence of the deceased. He contended further that the deceased was not a third party. The deceased himsetf was driving the motor cycle and met with the accident. The policy of insurance of the motor cycle is not a comprehensive policy but a contractual policy. Referring to Section III of the conditions of the policy of insurance (Ex.D-1), which deals with personal accident cover for owner-driver, learned counsel argued that the insurance company is not liable to indemnify and, therefore, the insurance company deserves to be exonerated from liability to pay the compensation. 5. Shri Goutam Khetrapal, learned counsel for the respondents, supporting the impugned award, argued that Ex.D-1 is a contractual ^ policy of insurance and thereunder the insurance company is liable to indemnify to the extent of Rs.1 Lakh. The deceased was owner of the motor cycle and the insurance company recovered premium of Rs.50/- for personal accident cover for the owner-driver of the motor cycle for a sum of Rs.1 Lakh. Therefore, the award passed by the Tribunal is just and proper and does not call for any interference by this Court. Learned counsel placed reliance on Oriental Insurance Company Limited vs. Rajni Devi and others, (2008) 5 SCC 736. 6. I have heard learned counsel for the parties and perused the impugned award as also the evidence available on record. 7. It is not disputed that deceased Balram Mahilange was owner of the motor cycle bearing registration No.CG 11 BA 3313 and he died in the accident, which took place while he was driving the motor cycle. From perusal of the record, it appears that no driving licence of the deceased was filed before the Tribunal. 8. Hiraundi Devi (AW-1) deposed in paragraph 4 that her husband (the deceased) had got the motor cycle insured at the time of its purchasing, in which, he had obtained policy of insurance covering his personal accident risk also. Her husband had a licence to drive the motor cycle, which he used to keep with him. In cross- examination, in paragraph 8, she has stated that her husband had a licence to drive the vehicle and he used to keep the licence with him while driving the vehicle. Itey/ ^ 9. Ashish Rao (NAW-1), Legal Executive of the appellant/insurance company deposed in paragraph 1 that Hero Honda Motor Cycle of the deceased was insured with the appellant/insurance company. He further deposed that according to the policy of insurance, the insurance company, on the premium of Rs.50/-, is liable to indemnify to the extent of Rs.1 Lakh in case of death of owner of the motor cycle in personal accident and the owner having a valid driving licence. In paragraph 7, he deposed that it is true that no any condition is mentioned in the insurance policy (Ex.D-1) that driving licence ofthe deceased insured will have to be compulsorily produced by his family members. 10. From the evidence of Ashish Rao (NAW-1), it is obvious that the motor cycle of the deceased was insured with the appellanVinsurance company and according to the policy of insurance (Ex.D-1), the insurance company, on the premium of Rs.50/-, is liable to indemnify to the extent of Rs.1 Lakh in case of death of owner of the motor cycle in personal accident and the owner having a valid driving licence. It is further evident that no any condition is mentioned in the insurance policy (Ex.D-1) that driving licence of the deceased insured will have to be compulsorily produced by his family members. However, from the evidence of Hiraundi Devi (AW-1), it appears that the deceased was in possession of a licence to drive the motor cycle at the time of accident. From the policy of insurance (Ex. D-1), it appears that it is a cohtractual policy and the insurance company is liable to indemnify to the extent of Rs.1 Lakh. ^o 11. The Tribunal, in paragraph 9 of the impugned award, has observed that the claimants have claimed compensation of Rs.1 Lakh against the contractual liability of the insurance company. Further, it has been held by the Tribunal that since the insurance company has received premium for indemnifying to the extent of Rs.1 Lakh, therefore, it cannot escape from its liability. The Tribunal has fastened liability to pay the compensation of Rs.1 Lakh to the claimants on the appellant/insurance company. 12. In Oriental Insurance Company Limited vs. Rajni Devi and others (supra), the Hon'ble Supreme Court has held thus: "7. It is now a well-settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle." 13. In view of the above principle laid down by the Hon'ble Supreme Court and the policy of insurance (Ex.D-1), the compensation of Rs.1 Lakh awarded by the Tribunal appears to be just and proper. The impugned award does not call for any interference by this Court. ^^' ".•, •<,. §9iiss% J M'..f^ '& ^ ^\ Gopal' 14. Accordingly, the award under appeal is affirmed and the appeal is dismissed. No order as to costs. Sd/- R-S. Sharma Judge p