Cr-;s^ IN THE HON'BLE HIGH COURT OJL CHHATTISHGARH AT BILASPUR '?;fnr APPELLANT ,VJ>. ^".-» ^y...^ <<^A.-"' .^'^.. ,>%>-•' ^ "y l'\ M.A.(C) N0.-^~1 \ /2010 :- THE ORIENTAL INSURANCE COMPANY LTD., THROUGH SENIOR DIVISIONAL MANAGER, DIVISIONAL OFFICE, N0. 1, SECOND FLOOR, MAUEENA BUILDING, JAIL ROAD, SAI NAGAR, RAIPUR (C,G.) (INSURANCE COMPANY OF MATADOR N0. C.G. 04/G-0940) AGENCY CODE N0. 620527, GOVER NOTE N0. 0541927, POLICY N0. UG- 0007l7-004172, PERIOD- 19/03/07 TO 18/02/08, TILL. Vrs. KIWI'ONDIiNTS ^ :-\. SMT. nilAPUJAIN (LOD11A), AGE 33 YRS, W/0 LATE pILIP KUMAR JAIN (LODHA) (MARRIEI) W1FE OF DECEASED) 2. KUMARI DIKSHA JAIN (LODHA) AGE 11 YEARS, S/0 MLIP KUMAR JAIN, (LODHA) (M1NOR DAUGHTER OF DECEASED), THROUGH GUARDIAN MQTHER, SMT. DHAPU JAIN (LODHA) Y^ '7^ ^l 3. MASTER DHARMESH JAIN (LODHA), AGE 7 YEARS S/0 DILIP KUMAR JAIN (LODHA) (MINOK S/0 DECEASED) THROUGH GCARD1AN MOTHER SMT. DHAPU JAIN (LOUUA), ABDUESS- V.l.P. SUPER FINE MAUBLE, 1N FRONT OF PRAKASH SWEEMTNG BRIDGE, MARBLE MARKET, SANTOSIII NAGAR, RING ROAD N0. 1, UAIPUR C.G. 4. A.IAY MASIH AGE 40 YEARS S/0 PRAKASH MASIH, ADDRESS- 1- IN FRONT OF KANYA SHALA, SHANTI NAGAR RAIPUR C.G., 2- VINOBA BHAVE NAGAR, THANA CIVIL LINES RAIPUR C.G. (REGISTERED OWNER AND DRIVER OF MATADOR N0. C.G. 04/G- U940) MEMO OF APPEAL A I'l' KAL U N DEK SECTION 173 OF MOTOR VEHICLE ACT 1988 APPF.AI. VAT.IIEDRs. 3,76,000/- (APPEALBYINSURANCE) LOMl'KNSAllON CLAIMED BEI<'ORE TRlBUNALRs. 40,00,000/- AWARDED AMOUNT BY TMBUNAL Rs. 3,76,000/-_ ..2.. HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (C) lfe>, 5 U_pf 2^10 Appellant The Oriental Insurance Company Ltd. Versus Respondents Smt. Dhapu Jain (Lodha) 85 others MISC. APPEAL UNDER SECTION 173 OF THE MOTQR VEHICLES ACT. 1988 DB: Hon'ble Shri I. M. Quddusi &, Hon'ble Shri G. Minhajuddin, JJ Shri Sudhir Agarwal, Advocate for the appellant. Shri Devershi Thakur, Advocate for the respondent No. 4. None for the respondents No. 1 to 3 despite service ofnotice through paper publication. QRDER (Qral) ( Passed on this 22nd day of November, 2011 ) PerI. M. Quddusi J. 1. The instant appeal, filed by the appellant Insurance Company, arises from the award dated 12th November, 2009, passed by the 9U1 Additional Motor Accident Claims Tribunal (FTC), Raipur in Claim Case No.76/2009. The facts, in brief, are that on 7.4.2007 at about 10.30 a.m. deceased Dilip Kumar Jain was going on his motorcycle, bearing registration No. C.G. 07/G-8781, to Basin . from Raipur. On the way, near Abhanpur,the non-applicant No.l (Ajay Masih), driving the vehicle, bearing registration No. C.G.-04/G-0940 in a rash and negligent manner dashed the motorcycle from behind, resulting in death of Dilip Kumar Jain. 2.- •./ Y. ^ The legal heirs/dependents of the deceased filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 40,00,OOO/- under various heads. Learned Tribunal, having regard to the facts and circumstances and the evidence on record, granted a total compensation of Rs. 3,76,000/- along with interest at the rate of 6% per annum from the date of the application, holding the non-applicant No. 1 (driver/owner) as liable to pay the amount of compensation because on the date of accident he was not having a valid and effective driving licence. However, it has been directed by learned Tribunal that at the first instance the amount of compensation shall be paid by the non-applicant No.2/Insurance Company and then it shall recover from the non- applicant No. 1 (driver/owner). We have heard learned counsel appearing for the appellant and perused the record. The main thrust of the appellant is that when learned Tribunal has held that the Insurance Company is not liable to pay the amount of corapensation, the direction to pay first and then recover from the non-applicant No. 1 is not sustainable. To substantiate his submissions learned counsel for the appellant rely on a decision of Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and others1. In the case of Vidhyadhar Mahariwala (supra) the issue was relating to liability of the Insurance Company as the driving licence was not valid on the date of the accident. The High Court in appeal, referring to the earlier decisions of Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Ors 2004(3) S.C.C. 297, . 2008(4) T.A.C. 378 (SC) ^ ^^-^y-' 7. National Insurance Co. Ltd. Vs. Kusum Rai and Ors. 2006(4) SCC 250 and Oriental Insurance Co. Ltd. Vs. Nanjappan and Ors 2004(13) SCC 224, had held that merely there was a gap in the renewal of driving license that cannot be a ground for exoneration, therefore the Insurance Company was liable to indemnify the award. In these facts situation, Hon'ble Supreme Court, referring to the decision in the case of Ishwar Chandra and Ors. Vs. Oriental Insurance Co. Ltd. And Ors. 2007 (10) SCC 650, wherein above referred three decisions were considered, and it was held that the Insurance Company would have no liability in the case of this nature, agreeing with the view taken in Ishwar Chandra (supra), allowed the appeal, exonerated the Insurance Company from the liability and directed that it is open to the claimant to recover the amount from the owner (respondent No.2 therein) of the vehicle. In view of the directions and observations given by the HonTsle Supreme Court in the aforesaid decision, the appeal is allowed. It is open to the claimant to recover the amount of compensation from the non-applicant No.l/owern & driver. No order as to costs. sdy- I.M-Quddusi Judge Sd/- G. Minhajuddin Judge Thakur