^^>^,^^.y».;^.<:ysA^^ u. *^r»r ^^ IN THE HIGH COURT OF JUDICATURE AT BILASPURfOG^ MISCELLANEOUS APPEAL N0. / 9 ^-/2003 APPEAL UNDER SECTION F73 OF M.V. ACT. 1988 (Claim in Appeal Valued at Rs.2.20.000/-) AP^ELLANT/ ^(INSURER) R^SPONDENT /"DRT^ER /' / The Oriental Insurance Co.Ltd., Through Sr.Divisional Manager. Divisional Office, Opp. High Court, Bilaspur (C.G.) Vs. 1. , Lalsai, /' > S/0. Lalmani, Aged about 35 years, RESPONDENTS OWNERS ..* ' ^'/i?' <^y^' ^w ^^c7 .f^/ ^/./ ^/' ^ > ,2^ Ramprasad, ^ S/O.^L^nG^m, Aged al3i|ii|ot known years, ^3: Mangal Singh, ^S^ ^ S/o. Roinlaldimi^^^^^^^^^^^^^^^^^^ t Aged about not known years, 4. Shyam Narayan, ^ S/o. Ram Milan Singh, Aged about not known years, Smt. Babby Bai, ^ W/o. Ram Milan, Aged about not known years, All R/o. Vill. Harchoka , P.S. Janakpur, Dist. Korea (C.G.) RESPONDENTS CLAIMANTS €. Juggi Bai, ^ W/o. Lalmani, Aged about 52 years, /.7. Surajdeen, S/o. Lalmani, Aged about 35 years, Both R/o. Vill.Ghughari, P.S. Janakpur, Dist. Surguja (C.G) ^~ HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: HON'BLE MR. G. MINHAJUDDIN. J. Appellant (Insurer) Resoondents Driver M.A.N0.1920F2003 The Oriental Insurance Co. Ltd. Vs Lalsaj and others. Present: Mr. Vinay Harit, Sr. Advocate with Shri S.K. Mishra, counsel for the appellant. Mr. T.R. Chandrakar, counsel for respondente No. 1 to 5. None for respondents No. 6 & 7, though served. ORDERfOral) (11th July, 2011) 1. The list is being revjsed. The matter was called out twice, however, no one appears on behalf of respondents No. 6 & 7, despite service of notice. 2. This appeal has been fited bythe appellanVinsurance company under Section 173 of the Motor Vehicles Act, 1988 against the award dated 28.2.2002 passed by the Additionat Motor Accident Claims Tribunal, Manendragarh, Distt. Korea, (in short "the Tribunal") in CIaim Case No. 8/2001, fastenjng {iability to pay the compensation amount on the appellant/jnsurance company jointly and severally along with respondent No.1, driver of Tractor bearing registration No. M.P. 27-B/3231. 3. Brief facts of the case are that on 5.7.2000 Lalmani was going from Village - Madisarai to his home at Village - Ghughri by bicycte. At that time, respondent No.1 by driving Tractor No. M.P. 27-B/3231 (hereinafter referred to as "offending vehicle"), which is jointly owned by respondents No. 2 to 5, in a rash and negligent manner, dashed the cyclist (Lalmani) near hospital at Village - Madisarai, as a result of which the cycljst fell down and he was run over by the tractor. Lalmanj was taken to hospital, but during the course of treatment he died in hospital. Report of the accident was lodged in Poiice Station - Janakpur and after completing investigation, charge sheet was filed against respondent No.1 in the Couit,____- ^a.y ^ 1 i f ^. ....// :'w .^ 4. It was pleaded in the claim petition that deceased Lalmani was Kotwar of the Viltage and as such, he was getting Rs.500/- monthly. He was also earning Rs.1200/- per month from agriculture. HJS total annual income was Rs.30,000/-. The claimants were fully dependent upon the deceased. The offending vehtele was insured with the appellant/insurance company at the relevant point of time. Therefore, the claimants by filing a daim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act") daimed a total compensation of Rs.2,20,000/- against the death of Lalmani from the appellant/insurance company as well as from respondents No. 1 to5. 5. Heard learned counsel for the respective parties, perused the LCR as also the impugned award. 6. Contention of learned counsel for the appellant/insurance company Shri Vinay Harit, is that on the date of accident i.e. 5.7.2000 the respondent No.l/driver was having a fake driving licence and hence, there is a clear cut breach of conditions of insurance policy and therefore, the appellant/insurance company is not liable topay the compensation awarded. 7. On the other hand, Shri Chandrakar, learned counsel for respondents No. 1 to 5, supporting the impugned award, contends that at the relevant point oftime, respondent No.1 Lalsai was having a valid and effective driving licence to drive the offending vehicle and therefore, there has been no breach of any of the conditions of the insurance policy. 8. From perusal of the record, it is crystal clear thaf the appellant/insurance company, who was non-applicant No.6 before the CIaims Tribunal, in jts reply to the application under Section 166 of the Act, under additional statement in para-1, has spedficaljy pleaded that on the date of acddent i.e. 5.7.2000, the respondent No.l/driver of the offending vehicle was not having a valid and effective driving Jicence and on the contrary, the Ijcence possessed by him was a fake one. Despite there being a specifjc pleading on this point, the Claims Tribunal has not framed any issue with regard to breach of policy conditions and as such, it cannotJbs^ajdttiat the ^a-/ .^^"^•^ ;^^,.-:;"^ f'/' '" N>. J tMlil;. 1 ^ ^&^-^ 1 ^y x..^'' ^3^;>; ^: parties had been given due opportunity to adduce evidence on this point, although one Mahesh Pratap Singh Baghel ~ clerk of the Transport Department, Shahdol - has been examined as Non- Applicant Witness No.2 on behalf of the appellanVinsurance company. 9. In these circumstances, it is clear that the Clalms Tribunal has not conducted proper enquiry as per provisions of Sections 168 and 169 ofthe Act and Rute 226 ofthe CG Motor VehJde Rules, 1994, which is essential for determjning the just compensation as also for deciding the person who is liable to pay jt. Therefore, this Court is of the opinion that the matter requires reconsideration at the end of the Clajms Tribunaj. 10.1n the result, the appeal is allowed in part. the jmpugned award is set aside and the matter is remitted back to the Clajms Tribunal for deciding the case afresh by a reasoned order in the light of above observations, after framing an issue in regard to breach of condjtions of insurance policy and affording an opportunity to the parties to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. 11 .As informed by learned counsel for the appellant, 50% amount of compensation has already been deposited before the Claims Tribunal vide order dated 12.12.2006 of this Court. The amount, so deposited, shall be subject to final award to be passed by the CIaims Tribunal. In case, the said amount has been disbursed to the claimants and ultimately, the appellant/insurance company is exonerated from itsp Hability to pay the compensation amount, then {t will be open for the appellant/insurance company to recover the same from the owners ofthe offending vehicle. 12. Parties shall appear before the Tribunal on 1 August, 2011. 13. LCR shall be sent back to the Tribunal without further delay. 14. No order as to costs. — 15.Certified copy as per rules. Sd/- G. Minhajuddin Judge ^ -K^, ^ k ^ 4?. ^ka-/ m.^^^^^^^-1