^ c^ c.f-- ' y/- IN THE HON'BLEHIGH COURT OF CHHJUTISGARHAT BILASPUR nfl.A.(C)No.- 2-C< /2009 ^..,^i3.,». APPELLANT :- MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, BHUSAWAL ^'^^ BRANCH OFFICE MANOCHA BHAWAN, NEAR TO MUNICIPLE HOSPITAL BHUSAWAL, DISTRICT- JALGAON (MAHARASHTRA) Vrs. RESPONDENTS/CLAIMANTS :- ^ -^^^^ t- SHEKHAR THELA @ TORAN NIRMALKAR S/0 PUNITRAM, AGE 30 YRS., RESIDENT OF 88, RISALI SECTOR, THANA NEWAI, DISTRICT - DURG RESPONDENTS/NON-APPLICANTS 2. ? 3. ISTEKHAR AHIVIAD S/0 MOHD. RAMJAN BEG, AGE 23 YRS. RESIDENT OF CHANDRAPUR MAHAKALI COLONY, DISTRICT - CHANDRAPUR MAHARASHTRA SHEKH KHALID S/0 S.K. DAUD, RESIDENT OF MUKTAINAGAR, EDLAWAD, DISTRICT - JALGAON (MAHARASHTRA) ^- 4, THE NEW INDIA INSURANCE COMPANY, THAKKAR CHEMBER G.E. ROAD, POWER HOUSE BHILAI, TAHSIL & DISTRICT - DURG(C.G.) APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 KEI '^: A '!% -'€SSP;!N e 's«s^'..y \^\ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma y Miscellaneous Appeal (C.) No.265 of 2009 Manager, The Oriental Insurance Company Limited versus Shekhar Thela @ Toran Nirmalkar and others ORDER Postfor /-7-08-2011 '? Sd/- Radhe Shyam Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR ^ /L) Single Bench: Hon'ble Shrj Justice Radhe Shvam Sharma Miscellaneous Appeal (C.) No.265 of 2009 Appellant Manager, The Oriental Insurance Company Limited versus Respondents Shekhar Thela Nirmalkar and others Toran Present: Shri Sudhir Agrawal, counsel for the appellant. Shri Dashrath Gupta, counsel for respondent No.4. None for other respondents. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORDER (Passed on 1^1 August, 2011) This appeal has been preferred by non-applicant No.3 Oriental Insurance Company Limited, i.e., insurer ofthe truck challenging the award dated 29-11-2008 passed by 1 Additional Motor Accidents Claims Tribunal, Durg in Claim Case No.30/2005, whereby the claimant has been awarded compensation of Rs.2,55,007/- and liability for payment of the compensation to the claimant has been fastened on the appellanVinsurer of the truck to the extent of 75% of the compensation. \- •.\ 2. Brief facts of the case are that on 26-1-2004, respondent No.l/claimant was traveling in a Sumo bearing registration No.CG 04 B 0798. A truck bearing registration No.MH 19 Z 0098, which was being driven by respondent No.2/non-applicant No.1 rashly and ^ negligently and which was coming from opposite direction, dashed the Sumo. The claimant/respondent No.1 received several injuries on his body. He filed a claim petition under Section 166 ofthe Motor Vehicles Act, 1988 (henceforth 'the Act') before the Claims Tribunal, Durg. The Claims Tribunal awarded compensation of Rs.2,55,007/- to the claimant and liability has been fastened on the appellant/the Oriental Insurance Company Limited to the extent of 75% of the compensation and on respondent No.4/the New India Insurance Company Limited, i.e., insurer of the Sumo to the extent of 25% of the compensation. 3. Shri Sudhir Agrawal, learned counsel for the appellant/insurer of the truck has argued that the claimant did not examine the doctor who treated him and the Claims Tribunal, without any medical evidence of permanent disability, has held that the claimant had sustained 25% permanent disability, therefore, the finding of the Claims Tribunal is perverse. He further argued that the driver ofthe truck did not possess a valid and effective licence to drive the truck. The Claims Tribunal has held that the driving licence possessed by the driver of the truck was fake. Even after that, liability has been fastened on the insurer of the truck, which is unsustainable. He ptaced reliance on New India Assurance Co., Shimla vs. Kamla and others, (2001) 4 SCC 342 and New India AssuranceCo. Ltd. vs. Roshanben Rahemansha Fakir and another, 2008 (3) TAC 20 (SC). 4. Shri Dashrath Gupta, learned counsel for respondent No.4/the insurer ofthe Sumo.supporting the impugned award, submitted that the award does not call for any interference by this Court. 5. I have heard learned counsel for the parties and perused the impugned award as also the documents available on record. 6. So far as question of permanent disability of the claimant is concerned, 1 have perused the document (Ex.P-11). Ex.P-11 is a medical certificate issued by the District Medical Board, Durg for physically handicapped person and the Medical Board has mentioned in the medical certificate that the claimant has suffered permanent disability to the extent of 25%. There is no reason to disbelieve the medical certificate (Ex.P-11) issued by the Medical Board. In paragraph 19 ofthe impugned award, the Claims Tribunal has held that the claimant has suffered 25% permanent disability, which, in the light ofthe medical certificate (Ex.P-11), appears to be just and proper. 7. The Claims Tribunal has held that the income of the claimant was Rs.7,000/- per month and has deducted 1/3 of his income towards his personal and living expenses and applied multiplier of 16, which isjust and proper. 8. In paragraph 18 of the impugned award, the Claims Tribunal has recorded a finding that the licence, which the driver of the truck possessed, was fake. m "•""-,^ .f' 4 '&'""' .»r 9. N.K.Sangewar, witness of non-applicant No.3 Oriental Insurance Company Limited has deposed in paragraph 2 that on being investigated by the insurer of the truck, licence of the truck driver Istekhar Ahmed was found to be fake. He has further stated that report of investigation of insurance policy and driving licence had been filed in the case and he was present before the Claims Tribunal with the original thereof. A copy of the insurance policy was filed in the case and original thereof is Ex. D-2 and copy thereof is Ex.D-2C, and the conditions of the policy of insurance, which are in 6 pages, are annexed thereto. 10. From the above, it is evident that the driving licence, which was in possession of the driver of'the truck at the time of accident, was fake and, therefore, insurer of the truck was not liable to indemnify. The finding recorded by the Claims Tribunal in paragraph 18 of the award that the insurer of the vehicle is liable to pay compensation to the legal representatives of the deceased in case of third party, is unsustainable and the insurer of the truck is not liable to pay compensation to the claimant in the instant case. The claimant is entitled to realize the amount of compensation from the owner and the driver of the truck. But, the finding arrived at by the Claims Tribunal that the insurer of the truck shall be entitled to recover the amount of compensation from the owner and the driver of the truck does not call for interference. The decision relied on by Shri Sudhir Agrawal, learned counsel for the appellanVinsurer of the truck in New India Assurance Co., Shimla vs. Kamla and others (supra) and New India Assurance Co. Ltd. vs. Roshanben Rahemansha Fakir and another (supra) is distinguishable on facts. 11. In this regard, the law laid down by the Hon'ble Supreme Court in New India Assurance Company Limited vs. Kusum and others, (2009) 8 SCC 377, in paragraphs 9 to 12, can be followed. 12. In Premkumari and others vs. Prahlad Dev and others, 2008 (3) CGLJ 238 (SC), the Hon'ble Supreme Court has held in paragraph 11 that in case driver of an offending vehicle does not possess a valid licence on the date of accident, insurer of the offending vehicle shall not be liable to pay compensation, but owner and driver of the offending vehicle shall be ligble to pay the compensation. 13. In view of the above facts and circumstances, l am of the opinion that the appellant/insurer of the truck is not liable to pay compensation to the claimant, therefore, 1 allow the instant appeal and hold that the appellant/insurer of the truck is not liable to pay CQmpensation and that pari: of the impugned award is set aside. Hpwever, the remaining part of the impugned award is not interfered with in the instant appeal. , The appellant/insurer of the truck is exonerated from its liability to pay compensation to the extent of 75% of the impugned award and that amount to the extent of 75% of the compensation shall be paid to the claimant by the owner and the driver of the truck. VI '-?-- 14. In National Insurance Co. Ltd. vs. Laxmi Narain Dhut, 2007 AIR SCW 2279, the Hon'ble Supreme Court has observed thus: "39. In view of the above analysis the following situations emerge: 1. The decision in Swaran Singh's case (supra) has no application to cases other than third party risks. 2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3. In case of third party risks the insurer has to indemnify the amount and if so advised to recover the same from the insured. 4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. 15. Following the dedsionr in the cases of National Insurance Co. Ltd. vs. Laxmi Narain Dhut (supra) and National Insurance Company Ltd. vs. Swaran Singh and others, (2004) 3 SCC 297, it is directed that at the first instance, the appellant/insurer of the truck shall pay compensation to the extent of 75% of the impugned award to the claimant and recover the same from the owner and the driver of the truck. Gopal 16. tn the result, the instant appeal is allowed in part to the above extent. No order as to costs. - -- - _ Sd/- Radhe Shyam Sharma Judge