1 ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARHI MISC.APPEAL N0.^' OF 2006 APPELLANT INSURANCE The Oriental Insurance Co. Ltd. through its Branch Manager, Branch OfHce, Ambikapur District- SARGUJA (CG). VERSUS ^"iRESPONDENTS CLAIMANTS /l. Smt. Susheela Bai w/o late .APPELLANT -Oriental Insurance Com. Raghuveer Pando, aged 18 years. 3.. Ku. Manmati d/o late Raghuveer Pando, aged 12 years. ^3. Ku. Shanti d/o late Raghuveer -?£Pando, aged 10 years. t o4. Somar Sai s/o late Raghuveer •^Pando, aged 8 years. ^.5. Narayan s/o late Raghuveer •„ Pando, aged 6 years. 6. Ku. Shrimati d/o late •^ Raghuveer Pando, aged 4 years. ^ 7. Rajaram s/o late Raghuveer 'ando, aged 4 years. (Respondents no.2 to 7 minor through their natural guardian mother respondent no.l Smt. SusheelaBai). (All r/o ViUage-Bario (Pandopara), P.S. Dhorpur, Tehsil-Rajpur, District-SARGUJA (CG) OWNER INSURED e^8. Kendaram s/o Badaram, Gond by caste, r/o Village-Parsagudi, P.S. Rajpur, Tehsil-Rajpur, District- SARGUJA (CG). DRIVER •^" 9. Shiva s/o Alakhnath Gond,aged 25 years, r/o Village- Umdipara, Pahadpara, Bario, P.S. Dhorpur, Tehsil-Rajpur Dist. SARGUJA (CG). APPEAL U/S 173 OF MOTJ0R VEHICLES ACT AGAINST THE AWARD/ORDER DATED'-gO/l 72006 PASSED BY THE FIRST ADDITIONAL MOTOR ACCIDENT JBLAIMS TRIBUNAL. AMBIKAPUR (SARGUJA) IN C.T. N0. i¥/2005 '-^' (Appeal valued at Rs. 3,71,856/- Court Fee affuredRs.15/-) ;^' ^s - <\v \"- TTI NVISION BENCH: HOM'BLE MR. I.M.QODDUSI& HON'BLEMR.MANiNDRAMOi-lANSHRIWS A s ^ rt i i IMVA, >1<J. Vs iesDondents i ne (.ifieRtat.lnsurance Company Ltd. Smt'Stjsheeia Bai & others ^r^ssnl Mr. Abhishek Sinha.Advocaie^wittiMr.'Q^patetS^ivocate-forthe appellant. Mr. R.v. Rajwade, Advocateforthe res5OTiaenR'No;1 to 7. NOHQ for othor rQspondoni^ thou^h s^rvod. ^ ORDERIQralV Iav,2pi1) .!* M» 1. Heard. , ' :: •-' - i 2. The appellant-lnsurance Company has preferred this appeai under SectiQn 173 or the Motor Vehi'cles A.ct. 1988 (for short 'the Act") against the award dated 20.1.2006 passed in C!aim Case No.17/2005.wherebyfhe learned 1!" Additlonal Moior Acciaent ciaims l nbunal, AmDiKapu^tSyrguja) (Uti) iror short 'the ciaims Tribunai') has aliowed clajm application of th,e 'claimants, granted compensation of Rs.3,71,85&'- to them and held liable the appeiiant-insurance Company to sati-sry the impugned award. 3. hacts of me case.in bnet, are that on ug.02.2003 Kaanuvlr "ando (since decea.secf) was traveling in tne tractor-trolley bearing registration number CG15- A-0944 & eG15-A-0945, however, due to rash and negligent driving by the dnver ot said tractor-troiley, It turned turtle and sald Raghuvir pando died on the spot due to injunes sustained &y him In the said inciaent. The claimants. who are widow & children or tne deceased respeet!ye:ly, claimed CQmpensation to tne tune of Rs.7,00,000'- un'aer vanous heads on the ground that they were - dependents on the dsceased, who was the sole earning member in family, and due to nis aeath. ffiey had suffered loss ot income. 4. me uiaims (ribunat vsde impugned award partially ailowed the claim or the claimahts.'awardedcompensation to them ana' fastened liability on the appellant nerein to satisty the impugned award. &. We have leamed counsel for the parties. We have also perused the le c 6. Plea raised by the appellarit-lnsurance Company to the effect that at (he time of accident the dnver ot ottending vehicle was not holdlng valld and effective' dnvmg iicence <-vas negated by the Glaims Tnbunal on the flround that onus to p^ (. prove this fact is on the Insurance Gompany, but the Insurance Company fajied to prove this fact by.addycina evidence in this regard..I-iowever,trom perusal of the record it is evident that an appii.cation under Order 11 Rute 12 CPC was moved by the appeHant-lnsurance Companyto direct the driver of the offending yehicie to produce dnying .licence s6 that the insurance company may De able to verify the same, but me same ,yras ,not p.roduced by the drjver though he . cdntested the claim ang' as such, no pvjdencewas adduced in this regard as the ippellant could not know as to whether any armng'ilcence was infact issued to the driver or not and if issued, then from which piace. w'e fail to understand that 'n the absence of any information regarding issuarTpe of driving jjcence what type of ©yiaence-couldhave been !ea by the jnsurance company to prQve the fact that the driver was not having valid.and effeGtive driving iicence. Furfher the record shows that an.offenceunderSection 3/18-1 oftheAct, which prescribes- necessity for driving jicence antf punishmemfor driving v6hicles in contravention of Section 3 & 4 oftheAct, was registered agsiinsithe driver ror the offending vshjcle. Thus. finding of the Ciainis Tribunat i.h%t insurance company has failed to prove that driver was not haying varid & effective driying licence is nof proper. 7. Besides-thjs, the otfencling vehicie was insured tor: agricultural purposes and sitting capacityor wnich is only one-i.e. only for dnver, and even the insurance poiicy did not cover the risk of any extra sitting in the tractor.'vVhereas, at the time of accident, the deceased was traveling in the sajd vehicie as passenger and not as labourer and therefore, it can safely be hei,d that the offending vehicle was plied in-breach ofthe conditions or insurance pQJjcy and as such. the appeilant-insurancecompanyis notiiabietosatisryt,ne!mpugneaawara. ^ '.• ' ;.-... :- ' "• 8. ln the result, the appeal Is allowed, the impugnect award, so tar as rt relates to fastening iiabJIJty on the appellani-lnsurance Company is concerned, it js set issde and we h@id thattne appetlant - Insurance uompany is not iiabte to pay compensation to the cla.jmants involved in the impugned award and the same shallbe paid bythe owner ofvehiclein question. In case anyamoum deposited by the appeilaht-lnsurance Company has been withdrawn by th®ciaimants, it wili-be, open for it to recpver tne same from the owner of venicle. Mowever, ir the amount, so deposlted, has not been wi'thdrawn so far, the insurance Company .shal'l be aitowed to withdraw the same. ^Rest of the condltions and findings of the impugned award are nereby conTirmed. it is nereby ciantied tnai tne claimants are free to exeoute the award aaainsttne owner of vehicie. y. uertmedcopyas perruies. Sd/- .M.Quddusi judge nF\ Sd/- Manindra Mohan Shrivastava Judge