^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (C) No. V&5\ /2011 APPLICANT (Non-Applicant No.3 ) \\ \y RESPONDENTS y, -^- 2. »Vt. The Oriental Insurance Co. Ltd., T.P.Nagar,' Korba, Through its Sr. Divisional Manager, Divisional Office, Geetanjali Bhawan, Korba (C.G.). Versus Dadooram, S/o Tiharu, aged about62years, ^ Maanbai, W/o DadC|fram, aged about 57 years, 3. Shani Kumari, D/o Kheekram, aged about 16 years, 4; Ranjani Kumar, D/o Kheekram, aged about 14 years, 5. Ku. Manika, D/o Kheekram, aged about 13 years, 6. Suman, D/o Kheekram, aged about 10 years, Note: All by caste Satnami, Respondents No. 3 to 6 are minors and are represented through their guardian and grand-father Respondent No.l ?v' (ram, S/o Tiharu, At Phai:aswani, Tahsil/P.S. Dabhra, ^Distt. Janjgir Champa (C.G.). .Claimants 7. Ajay Kumar, S/o Bhagwan Singh,At Gausala Road 1, Old Purulia Road, Kunwar Basti, Mango,Jamshedpur (Jugsalaee). .Ovyner .,-i ^. Sanjay Kumar, S/o Hardev Kumar, At Khakud Aurangabad, Bihar, Village Tudiya Bade Yudhist Anguri Makan Kirayadar M.4, Distt. Puruliya (West Bengal). .Driver APPEAL UNDER SECTIQN 173 OFTHE MOTOR VEHICLES ACT, 1988. AGAINST AWARD DATED 22.06.2011 PASSED IN MCFTOR ACGIDE1M-TAL CLAIM CASE N0.28/2009 BY LEARNED ADDITt6N«LMOTORACCIDENTALCLAIMSTRIBUKlAL,SAKTI, DISTT; JJNJtdIR CHAMPA fC.G.) 1» ^i^^l <<-'- 'l^i itf HI6H COURTOF€HHAm:S6ARHATBILASPUR DIVISION BENCH: HON'BLE MR. I.M.QU&&USI & HON'BLE MR.S.AAINHAjyOOIlM. JJ Appellant Respondents AoBeliant Respondents M.A. fC] No.lOSO/2011 The Oniental Insurance Co. Ltd. Vs Ashwani Kumar ond others & M.A. rCl No.lOSl/2011 13 Vs The Oriental Insurance Co. Ltd. Dadooram & oth^rs Present: Mr. Rqtan .Pusty, Adv, fpr the lagRellcmt in both the appeals. Mr. 1.5. Sahu, Adv.for r'espondent-claimants in both the appeats. ORDER fOral) rth 0" Dec^mber. 2011) Per I.rt. Quddusi. J. 1. AA.A. (C);No.l050/2011 arisiBg of out of Claim Case No.30/09 and M.A. (C)J No.1051/11 arisidg oyt of Claim Casp No.28/09 are being disposed of by| th is common^irder as bpth .•t^ieas.qpfieals arose out of the same accident. J 2. Challenge in the abipye twp appepls js to the impugned awards dorteci| 22.6.2011 passed by the Jearned, Acicljtional Motor Accidents ClaimsJ Tribunal Sakti, District Janjgir-Champa (for shopt tthe Claims Tribunal') in Claim Cases No.30/09 & 28/09 tbiereby partly attowing claim applications] of the claimants awar-ding fts4^4,50Q/- di Ps.3,84,QpO/- respectively as^ compensation and fcstening, liabilit^upon the appejlant herejn tosatisfy; theimpugneolcnfnrds.' -. f 3. Facts, io nut?liell,^re thot wi 4^-.2Q04~few persons were trowelljng in the; truck l:>eflri()g..nesgis*ratjoiT numbei*^8PM-6309 cs labourers and were going' towai^sMa3SI^Ma1^^ (Jclta' 81har) from tlielarickkiln pf Munna Singh^ situfft^Jn .yill^^,,<^lwtabaiiki. While 'they were m between Village|? bamkadjh' ggd Simy'cte9SliSst'1e Sai4 truck overlurned due to rash and negligent,4B"/in9^;'¥^lt$c'('>'l''erasiaresult °f which three fabourers; u IS: v^VfS^.^tjsi, r: 2 . travelling in the said truck died ond several lubourers sustained grievous injuries. Report of the accident vsas lodged in the Police Station AAaango: M6M (Bihar). The depenckints of deceased Naresh Kumar & Kheekram,| who died in the said accident, filed two separate claim applications undei*;j Section 166 of the Motor Vehicles Act, 1988 (for short the Act, 1988') seeking compensation to the tune of fts.54,55,000/- <& 43,75,000/- respectively inter alia on the ground that they were dependent on th&l deceased, who was the sole eaming member in the family, and due to his death, they have suffered loss of income. .4. The Claims Tribunal cons&tering t-he material available on record allowed both the claim apptications of the claimants in part, awarded compensation and held the Insurance Compony liable to pay the compensation. s 5. Learned counsel for the appetiont-Insurance Cgmpany would argue that despite filing an application under Order 11 Rule 12 of CPC, the owner and driver of offending vehicle have not produced the driving licence <uid in this situcftion, the Claims Tribunal should have drawn an inference Thaf driver of offending vehicle uwas not having valid ond effective driving licence and should have exonerated •the Insuronce Compony. 6. We have heard learned counsel for -Hia parties, perused the record of the Claims Tribunal as well as the impugned award. 7. Section 134 of the Act, 1988 cast a dut/ upon the driver to produce the pacticulars of his driving licence. However, perusal of the record of case reveals that in the present case driving licence has not been produced as the owner omd driver of the offending vehicle did not turn up before The Claims Tribunal dhd therefore they have been proceeded ex-parte. In this circumstance, it is not possible for- the Insuronce Company to lead evidence of every RTO of the country to prove •t+ie fact that on the date ^t'15" of accident the driver was not holding valid and effective driving licence. But, on account of non-disclpsure of driving licence, the insurance company cannot be blamed in not adducing evidence re9arding validity of the driving licence and it|hould have been presumed by the Claims Tribunal that the driver of vehicle in question was not having vatid omd effective driving licence on the date of accident. Therefore, finding of the Claims Tribunal on Issue No.3 in affirmative is liable to be set aside and the appellant Insurance Company deserves to be exonerated from the liability. 8. In -t+ie result, we allow these oppeals and set aside the part of the impugned awards by which the appellant Insurance Company has been held liable to pcy compensation and hold that the owner and driver of the vehicle in question are jointty and severafly liable to pay compensation to the claimants. The amount, which has already been deposited by the appellont, shall be refunded to the appellfluit Insuronce Company. In case any amount deposited by the appellant-Insuronce Company has been -" withdrawn by the claimants, it will baopen for the.appellant to recover the sdme from the owner & driver of the vehicte-in-question. The claimants are also free to execute the impugned award against the owner and driver of the vehicle-in-question. * 9. No order as to costs. Sd/- I.M.Quddusi Judge Sdi- G. Minhajuddin Judge fD ^-