o IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C) N0.- 8 APPELLANT .^ . THE ORIENTAL INSURANCE COMPANY LIMITED, RAIPUR(C.G.) Vrs. RESPONDENTS/CLAIMANTS:- 1. SARWAN S/0 GAYARAM 1^ CHANDRAWANSHI, AGE ABOUT 30 YRS., RESIDENT OF - KHARRIPARA, MUNGELI, TAHSIL - MUNGELI, DISTRICT - BILASPUR C.G. RESPONDENTS/NON-APPLICANTS:- >'-' ^<^^"3^\'W ^^'...VLT^ ' ^3- ^^....•••"^\"v ^ ^- 2. PAWAN CHANDRAWANSHI S/0 ) JALESH, AGE ABOUT 26 YRS., RESIDENT OF LAKHANPURKALA, DISTRICT- KAWARDHA (C.G.) (DRIVER) ^•^^ MANOJ SHARMA S/0 LATE D.P. SHARMA, RESIDENT OF MARUTI MEDICAL STORES, KAWARDHA (C.G.) (OWNER) APPEAL UNDER SECTIQN te QF MOTOR VEHICLE ACT 1988 ^. COURT OF CHHATTiSGARH AT BILASPUR v ( r IVI.A.^CI N0.1415 OF 2008 APPELLANT RESPONDENTS The Oriental Insurance Company Limited Vers.us Sarwan and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. ACT.1988 Sinale Bench: Hon'bSe Shri N.K. Aaarwal. J, Present : Shri Sudhir Agrawal, counsel for the appeJlant. Shri Basant Devi/angan, counsej for rsspondent No.3. ORAL ORDER (Passed on 14th day of February, 2011) This Is Insurer's appea! against the award dated 31-01- 2008 passed by the Additionai Motor Accident Ciaims Tribunai, Mungeli, Djstrict Biiaspur (for short 'the Tribunal') in Ciaim Case No. 33/2007, awardlng Rs.21,000/- as compensatlon on account of the injuries sustained by the ciaimant in the accjdent dated 14-06-2006 hoiding appsliant/lnsurance Company iiable for Its payment. 2. Brief facts of the case are: on 14-06-2006, respondent No.1 along with his friends was going to vlliage MahEi to attend the marriage by Maruti Van bearing registratlon No. C.G. 09/5020, driven by respondent No.2, the sald vehlcle turned turtie, as a resuit of v>/hlch respondent No.1 sustained multlpie Injuries and fracture jn his shoulder. 3. As against Rs.14,20,000/-, ciaimed by respondent No.1 as compensation for the injuries sustained in the said accident, the iearned Tribunai awarded Rs. 21,000/- hoiding s^ "-:':^^/ ^••^--% ^, s! .^ , \,^y VK^^SS B':: •N. appeilant/insurance Company iiabie for Its payment by rejecting Its plea regardlng breach of terms of the pollcy. 4. Shri Sudhir Agrawa!, iearned counsei for the appeiiant vvouid submit: aithough the policy being package poiicy, which covers the risk of occupant of the vehicle but since the vehicie vvas not In possession of the owner, the Insurance Company cannot be held llable for payrnent of compensation to ths claimant. 5. it vi/as further contended that despite admission by the owner in his statement.that the driver of the offendinQ vehicie v^as havlng Ilcence to drive heavy goods vehicie whereas the offending vehicle v^as iight motor vehlcie and thus was not havlng vaiid iicence to drive the vehlcle In questlon, the learned Tribunai has erred in fastening the iiabiiity upon the appellant/insurance Company. 6. E have heard Searned counsel for the appeilant, perused the impugned award and the record ofthe TribunaE. 7. For the reasons best known to ths appeilant, the appeilant did rfot prove the pollcy of Insurance and its terms and conditions by adducing evidence therefor. 11 is trite law, it Is for the appeiiant/lnsurance Company to prove its defence taken in the written statement. Under Section 1 49 of the Act, the appeiiant is requlred to prove wiEifui breach of terms of the pollcy by the owner of the vehlcle. For that purpose, the appejfant is required to prove breach of conditions of poilcy and also that It was deEiberate. in the absence of proof of terms and condltjons of the DoSicv of irfsurance it cannot be said that ovs'ner has breached /par\. .sm^ 1 i 1 '^y^ any terms and condltions of the poiicy. Thsrefore, it Is not correct to say that the appeljant/insurance Company has proved based on statement of the owner that the driver of the offending vehicle was not having proper and vaiid iicence at the time of accidsnt. Further Shri Maraoj Sharma, NAW 2 in para 5 of hls statement has mereiy stated that the iicence which he had seen was valld to drive heavy vehicie. It does not rnean a person who is havjng iicence to drive heavy vehicie, was not having ilcence to drive iight motor vehicie. A person may have both licence i.e. to drive light motor vehicie as weil as heavy motor vehicie. In vlew of above, the appellant/insurance Company had utterly failed to discharge its burden. 8. For the foregoing, 1 do not find any substance in the piea raised by learned counse! for the appeiiant/insurance Company. Hoyvever, iearned Tribuna! aiso awarded penai interest which is not susta!nab!e In law jn vievv of the Judgment of Hon'ble the Supreme Court in the case of CQ. Ltd. Vs. reported in 2 SCC 370. Thsrefore, ths appeai is aiJQV^ed in part and the amount of interest awarded by the Tribuna! is payabie at flat rate of 6% from the date of appiication tlij Its payment. The award Is rnodified to the above extent. Rest of the conditions of the award remains Entact. Kvr Sd/- N. K. Agarwal Judge •^