f\/-\^^-\^J\f\v^\y^--^ a L^^ .^•••' IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C)No. ^&J___L2010 gv^^ g^,^' APPELLANT : The Oriental Insurance Company Limited, (N.A No.3) Through : The Divisional Manager Divisional Office No.l, Jail Road, Raipur-(C.G.) VERSUS RESPONDENTS Claimants 1. Laxmi Bai Wd/o Late Shyamlal Yadav, Agedabout 45 years {Z^^^. Rajesh Yadav S/o Late Shyamlal Yadav, ^. ff.-i'^ } Aged about 28 years Both R/o Handipara, P.S. Azad chowk, Raipur-(C.G.) (N.A No. 1 & 2) : 3. Harsh Chind S/o Suresh Chind, R/o Govind Nagar, P.S. - Pandri, Distt. Raipur-(C.G.) -— (Driver of vehicle) 4. M/s Raj Engineering Works Through - Presiding Offlcer, M/s Raj Engineering Works, K.K.Road, Moudhapara, P.S. Moudhapara, Raipur-(C.G.) — (Owner ofvehicle)— (N.A.No.4) 5. SonaYadav,Wd/oLate8hyamlalYadav, R/o Sanjay Nagar, Jhanda Chowk, P.8.- Tikrapara, Raipur-(C.G-) APPEAL UNDER SECTION 173 OFL MQTQR VEHJCLE ACT AGAINST THE AWARD DATEDJ_5,Q2,10 PASSED BY LEARNED FIRST ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RAIPUR fPRESIDING ^OFFICER SHRI N.K.CHANDRAVANSHI) PASSED IN CLAIM CASE N0.10/09, CERTIFIED COPY QFAWARD DATED 15.02.10 IS FILED HEREWITH AS 'ANNEXURE A-1'. - ^^ HIGH OOURT CXF CHHATTISGARH. MLASPUR DB: HOW*BLB I.M. QUDDU8I & HON*BLB N.K. AORAWAI*, JJ M. A. (Ct. No. 364 OP 201.0 v». I®8POiroBWTS La?ani Bai aad ofhers APPEAL UNDBR 8BCTIOM 173 OF THB MOTOR VBHICLBS ACT. 1988 APPEARANCB: Mr. Hanuxnan Prasad Agrawal, counsd. for fhe appellaiit Mr, S»C. Venna, counsel for respondent no. 1, Mr. Stiivendu Pandya, counsel for respomieat no,5. ORDBR (ORALI (25.11^010) Per I.M. OITODUSI. J 1. This appeal has beeii filed by the Insiiraace Oompany ^aiast impugaed awaid dated 15.02.2010 pasoed by the learaed First Additional Motor Acddent Claims Tribuiial, Raipur, in Claim Case No. 10/2009 so far as thc Tribunal has fixed fhe liabilily on fhe Insuraace Compaay, 2. Bnef facts of fhe case as per the version of fhe claimaBt are fhat on 11.09.2008at about 7.30 a.m., ShyamJal Yadav (deceased) was driviag his Auto-ri^dkshaw bearing regn.no.C.G.04-T/2744 and at fhat tunc, rcspondei^: no.3 Harshchind who was rashty and negligenlty driviag the Motorcycle beanng regn.No. C.G.04-CA/8007 owned by respondent no.4 Raj Engineenng Works forcibly dashed ftie Auto-rickshaw aad the said Auto-rickshaw was over tunied, APPBLLANT The Oriental Ins»ixrance Ccxmpaay Limited ^^ ^ as a rcsult of which, ShyamJal Yadav rcceived grievous injuries and died. The deceased was a healthy maii of aged about 50 years, he was owner and driver of fhe Auto- nckshaw and was eaming Rs. 10,000/- by drivmg the auto- rickshaw. The Claiinaats beir^ dependents of fhe deceased filed clami petition seekuig a conipensafion to ftie tuae of Rs.13,60,000/- on different heads. 3. The Tribunal assessed fhe inoxifhly iacomLe of fhe deceased as Rs.4500/- and the aiinual iacome as Rs.54,000/-. Afiter deductmg l/3rd, tfae annual loss of depeadency was worked out to Rs.36,000/- aad by adopting miiltipHer 8, fhe totol loss of dependency was worked out to Rs,2,88,000/-. Besides fhis, fhe TribuDal has also graated 12,500/- under other heads, Thus ffae Tribuoal has awarded a total compensation ofRs.3,00,500/-. 4. We have perused the Lower Court R«?ord as weU as the finding given ia fhe awaxd OM tlie basis of ffeie evideiice axid the dociiments avaUable on record. The Tribuiial has feamed issue no.3 to the effect that whefher the motorcycle was beiag driven by its driver violatmg fhe coiiditioxis of fhe Insuraace PoUcy aad aaswered the same io. negative. Tfae iasuraace company has been able to prove that the driver of fhe motorcycle who was driviag fhe vehicle owisied by respondent no.4 was havio.g only a leanier^s ficense fhat too authorizing him to drive the motorcycle wifhout gear only. The date of birth was mentioned ia the learaer's Hceaise of fhe driver namely Harshchiad as 02.01.1991, The Ucense was issued on 10.09,2008; therefore; on the date offessuaace tottN^^. oftihe learaer license fhe driverwas aged about 17 years aad 8 monfbts that is less fhao. 18 years, 5. Chapter II of fhe Motor Vehicles Acty 1988 relates to Licensiag of Drivers ofMotor Vehicks. Section 4 offhe Motor Vehicles Act which speaks about age limit whicli is relevaat here and quoted below : <<4. Age Umit ia connection with drivmg of motor vehicles.—(1)No persoa under the age of eighteen years shall drive a motor vehicle ia aay pubUc place: Provided that a motor cycle wifh engiiie capacily uot exceediag 50cc may be driven ia a pubUc place by aperson after attamiag the age of sixteen years, (2) Subject to fhe provisions of sectioa 18, no person under fhe age of twenly years sliall driye a traasport vehicle ia any public place. (3) No leamer^s licence or dxlvmg Ucexice shall be 3®suedto aiiy peraon to drive a vehicle of ffae class to which he has made aa applicatioii unless he is eligible to drive fhat class of vehicle under fhis section." 6. In view of the above quoted provisions, tfie driver ia the iastant case was issued learaer^s license to drive the motorcycle wifhout gear onfy meamng thereby that he is entitled to drive a motorcycle with an exigiiie capacity not exceediag 50cc which is fhe motorcycle of category L-l. Further, "Category L-l" has been dcfiiaed in Rule 2(^ oflfae Central Motor Vehicles Rules, 1989 to the effect fhat "motor cycle wifh maximum speed iiot exceediBig 45 Km. per bour aiid engme capacily not exceeding 50cc if fitted witfa a thermic engine or motor power not exceedLmg 0.5 kUo watt if fitted with electnc motor. Thercfore; it is beyond doubt fhat fhe driver ofthe motorcycle was lessthan 18 years ofs^ge at fhe time when fhe leamjer's license was issixed to him authorfeing him to drive the motorcycle without gear with aii engine capacily not exceedmg SOcc if fitted witti a thenmc engiae or motor power not exceeding 0.5 Kilowatt if fitted with electric motor. 7. The appeUant has been able to prove its iiisuraace poMcy aad conditioais vide Ex.D-2 which clearly shows that fhe poUcy has been issued in fhe nanie of respondent no.4 - M/s. Raj Engmeering Works; the motorcycle beax&ig regn.No.C.G.04-CA/8007 which is a B^aj Eliminator of inanufacturing year 2002 was covered zuider fhe said poUcy and fhe Engine Capacity was mentioned as "exceedmg ISOcc aad not exceeding 350cc", Therefore, it is proved beyond aay doubt fhat fhe saM niotorcycle was aasurcd with fhe appellaat which was haviag capacity exceedmg ISOcc aad the driver offtie vehicle namely Harshchiod was authorized to drive the motorcycle wifhout gear not exceedlaig SOcc that too in fhe capacity of leamer. Hence, we are of tfae opinion that he was not havmg a vaUd aad efiFectibure driviag Ucense on fhe date of accident 8. In view of fhe above, fhe appellant Iiisua-ance Company cannot be held liable iii aay case for payment of compensation, Therefore, we discharge the m.8uraiice compaiiy fi-om its Uability to pay compensation. However, ftie Uability of fhe insurance Company to satisfy tfae decree at the first mstance aad to recover fhe awarded amount Jtom the owner or driver fhereof has beea holdiag the field for a F iiiiiiiini i"* long tune, It is a wefl settled nile of law aad should not ordiiianly be deviated fi^om. Hon'ble fhe Apex Court ia c^se ofJWcrttonaI Insurcmee Co^ £fA,-V»- SSwcim. Slngh reported ia (2004) 3 SCC 297 has laid down vide Para 83 as under: aSub-sectioxi (5) of section 149 which imposes a Uabitity on fhe iasurer must also be given its faU effect. The Insurance Companv mav not be liabte to satisfv fhe decree and. fherefore. its llabilitv xaav be zero but it does not ineaii fhat it did not have initiAl liability at all. Thus. if fhe iasurance eomiaanv is inade Uable to oav aiiv ainount. it can necover fhe entire amount paid to the tfaird party on behalf of f^ assured. If fhis interpretation is not given to the beneficent provisiox^ of fhe Act having regaid to its purport aad object, we fedl to see a situation where beneficent pixwisions can be giyen effect to< Sub- section (7) of Section 149 of the Act, to whicfa poiated atteiition of fhe Court has been dxawn by the leamed counsel for fhe petitioner, which is ia negative laaguage may now be noticed. Tfae said prcwision must be read wifbi sub-section (1) thereof. The r^ght to avoid liabiUty in terms of sub-section (2) of section 149 is restricted as has been discussed hereiaAefore. It is one thina to sav fhat fhe Insurance CoaiiDaxues are entifled to raise a defence but it is anofher fhiae to sav tiiat despite tiie fact fhat its defence has been accepted haviag reeard to the fects aad circiimstaaces of fhe case, fhe Tribunal has power to direct th.em to satisfv tfae decree at the^^^fc and fhen direct recovery of fhe sacae from fhe owH.er. These two matters stand apart aad require coiitoctual reacUng". (Emph^is sumriaed) 09. Therefore, at ffaie fiirst instance, fhe Insuraiice Company is directed to pay fhe conipensation to the claiEiiants aad recover the same firom owner. Rao T \ "lt\ 10. In the result this appeal is allowed. Thc iaterim onler dated 03.05.2010 stauds discharged. Sd/- I.M.Quddusi Judge Sd/- N.K. Agarwal Judge