IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH) M.A. (C) No. ^ 3> 7 Of 2008. APPELLANT :- ^nited India Insurance Company Ltd. NON-APPLICANT N0. 3 Raigarh(Chliattisgarh). RESPONDENTS •""S-" ^^^y VERSUS >1. Bade Mahajan, son ofSeth Kewat, aged 50 years, 2. Darashbai, wife of Bade Mahajan ^'Kewat, aged 46 years Both resident of Village Malni, P.0. Salni, P.S. and Tahsil Jaijaipur, District Janjgir Champa (Chhattisgarh), CLAIMANTS 3. Vishwanath, son of Mehtu Nayak, aged 25 years (Driver), resident of Salni, P.S. and Tahsil Jaijaipur, District Janjgir Champa (Chhattisgarh), [f, Tirupatinath Chandra, sonf of Balbhadra Chandra (Vehicle Owner), resident of Salni, P.S. and Tahsil Jaijaipur, District Janjgir Champa (Chhattisgarh). NON-APPLICANT N0.1 AND 2 APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT. y HIGH COURT OF CHHATTISGARH: BILASPUR D.B.: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Appellant Non-applicant No.3 Respondents M.A.(C)No.939/2008 United India Insurance Company Ltd. Versus Bade Mahajan and others [Appeal under Section 173 ofthe IVIotor Vehicles Act, 1988] Present: - Shri Pankaj Agrawal, counsel forthe appellant. ORDER(ORAL) (Passed on this 09th day of IVIay, 2011) Per I.IW. QUDDUSI 1. This appeal has been filed against the impugned award dated 31-03-2008 passed by the Additional Motor Accident Claims Tribunal, Sakti, District Janjgir- Champa, (hereinafter referred to as "the Tribunal") in Motor Accident Claim Case No.63/2007i in so far as it relates to liability part only. 2. Brief facts of the case are that on 30-05-2007, when the deceased- Dhaniram alias Chhotka was coming back from Sakti to Salni in the Tractor bearing ^gistration No.C.G.11-A/4558, aftertaking manure, the non-applicant No.l/Driver of the tractor was driving the tractor rashly and negligently, as a result of which, the tractor turned turtle. Due to the accident, Dhaniram died on the spot. The matter was reported to the Police Station Malkharoda, on which, offence was registered and after investigation, charge sheet was filed by the police against the non- applicant No.1 before the Court. The deceased was working as a carpenter and earning Rs.150/- perday and hewas onlyearning member ofthe famil.y. 3. Vide Claim Case No:63/2007, the claimants-parents of the deceased- Dhaniram filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 •\ -/ \ ^:: ..-"'"'"^- ^ ^- ' % "^•^ .;i B •^,^'-'./' ~- ^- for award of a total compensation of Rs.25,35,000/- under various heads owing to damage caused to them in the accident. 4. Learned Claims Tribunal having regard to the facts situation and the evidence on record held that the claimants are entitled for total compensation of Rs.4,07,000/- along with interest @ 6% per annum holding the liability on the non- applicant No.S/lnsurance Company to pay the compensation. Aggrieved by the said award, the appellanf/lnsurance Company has filed this appeal. 5. Learned counsel for the appellant has submitted that the driver of the tractor was not having valid and effective driving license on the date of the accident. 'Learned counsel further submitted that the deceased was sitting in the trolley. 6. We have heard learned counsel appearing for the parties and perused the lower Court r.ecord and found that the there is no driving license available on record, but there is also evidence of the official of the R.T.0. concerned that the driving license was not issued by the office. However, owner of the tractor has stated that he had taken precaution and had seen the driving license and had also taken test drive for driving the tractor, and thereafter only, driver was engaged by him, 7. Hon'ble the Apex Court has laid down the principle in para 92 of the case of National Insurance Co. Ltd. vs. Swaran Singh and Others, (2004) 3 Supreme Court Cases 297, which is quoted as under;- "Where the driver's licence isfound to be fake 92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is, as good as no licence but the question herein, as noficed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehru case5 the matter has been considered in some detail. We / ^' 3 are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. We would be dealing in some detail with this aspect of the matter a little later." 8. The appellant-lnsurance Company could not prove that the owner of the Tractor was guilty of the willful breach of the condition of the insurance policy or contravened the insurance policy, and therefore, this contention is not sustainable Sn the eye of law. Learned counsel for the appellant next contended that the deceased was sitting in the trolley, where there is no seating capacity and the occupant of the trolley or the tractor were not insured by the appellant, and therefore, if the owner has allowed to sit any person includ:ng the deceased, the appellant-lnsurance Company cannot be held liable. This point is appealing to us, but since the Tribunalhas given a finding regarding third party accident, upon further scrutinizing the matter, we found that the Tribunal has not conducted proper enquiry and has not considered the poliee papers also. The Tribunal should have ^gSiducted enquiry as provided under Section 168 & 169 of the Motor Vehicles Act, 1988 and Rule 226 of the Madhya Pradesh/Chhattisgarh Motor Vehicles Rules, 1994. The Tribunal should have summoned the police record, and thereafter only, should ascertain the truth and determine the issue, but that has not been done. Therefore, we have no other option except to remit back the matter to the Tribunal fordecision afresh. 9. For the reasons stated hereinabove, we allow the appeal in part, set-aside the impugnedaward dated 31-03-2008 and remit back the matter to the Tribunal X v •~ '», '^ for decision afresh after conducting proper enquiry to ascertain the facts. No order as to costs. 10. Needless to mentionthat the parties shall be allowed to amend their pleadings, adduce further evidence again in support oftheir pleadings and may file further documents and get the documents verified etc. The police records shall also be taken into consideration. The investigation will be made by the police on the basis of the statements recorded under Section 161 of the Cr.P.C. or recorded by the Tribunal and the same shall also be taken into consideration to ascertain the truth and those witnesses should be summoned by the Tribunal and conduet proper enquiry, and thereafter, the decision should be taken by the Tribunal afresh. 11. The lower Courts record shall be sent back forthwith. I.M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge Tumane Y ta' r3^^^