IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH MISELLANEOUSAPPEAL (C) N0. — ^ t7 ^ OF 2010 (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) APPELLANTS r 1. 2. \'%\") ^ ^t\ 't^ &» ^:-..:.:.;-" """..^- ^vs^"""' ' ....-•^'^ ^•-•^ /RESPONDENTS /• .,-'2. 4, ^' 5. 6. ^' Gokul Prasad Keshanvani S/o Budhsen Kesharwani, aged about 38 years, R/o - Pt. Deendayal Upadhyay Nagar, Gudhiyari, Raipur, District - Raipur (C.G.) (Non-appIicantNo. 1) [Driver ofvehicle Auto bearing registration No. CG 04/J/3943] Jagjeewanlal Kesharwani S/o Shyamsesh Kesharwani, aged about 42 years, R/o - Gudhiyari, Raipur (Near Shani Mandir) (Near Macchi Talab, Gudhiyari), Police Station - Gudhiyari, Raipur, District - Raipur (C.G.) (Non-applicant No. 2) [Registered ownir of vehicle Auto bearing registratjon No. CG 04/J/3943] VERSUS Smt. Manorma Bai Sahu W/o Late Santosh Kumar Sahu, aged about 23 years, Nikhil Sahu S/o Late Santosh Kumar Sahu, aged about 1-1/2 years, Lalaram Sahu S/o Late Mansingh Sahu, aged about 52years., Smt. Rambai Sahu W/o Lalaram Sahu, aged about 48 years. Ku. Bhumi Sahu D/o Late. Santosh Kumar Sahu, aged about 1-1/2 month. (1 to 5 are CIaimants) [Respondent No. 2 and 5 being minor on behalf of through their legal guardian mother Smt. Manorma Bai Sahu Respondent No. 1] A1I R/o - Village and Post Office - Lanjwara, Police Station - Beria, District - Durg (C.G.) The Future General India Insurance Company Ltd. Through In-Charge-Officer, The Future General India Insurance Company Limited, Thi'ough Branch JVEanager, Branch Offiee, Shop No. 1, 2nd Floor, B-Block, Maruti Commercial Park, Raipur (Near Dhupad Petrol Pump) G.E. Road, Raipur, District - Raipur (C.G.), [Insurer ofvehicle Auto bearing registration No. CG 04/J/3943] w^^ Appeal Valuc at - Rs. 4,25,000/- £ MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS RESPONDENTS M.A. (C)No. 659 of 2010 Gokul Prasad Kesharwani & Another Versus Smt. Manorma Bai Sahu & Others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT DB: Hon'ble Shri Justice I.M. Quddusi & Hon'ble Shri Justice N. K. Agarwal. Present :' Shri Shivendu Pandya, Advocate for the appellants. Shri SS Rajput, Advocate for respondent No. 6. ORALORDER (Passed on 19.11.2010) Per: N.K. Agarwal, J. 1. The instant appeal has been preferred by the appellants i.e. owner & driver against the orderdated 26.02.2010, passed by the Xth Additional Motor Accjdent Claims Tribunal Raipur (for short the Tribunal') in claim case No. 46/09, awarding compensation Rs. 4,25,000/- in favour of the claimants and as against the appellants. 2. Brief facts of the case according to the appellants are that, on 03.01.2009, Santosh Kumar Sahu (sirrce deceased) succumbed to the injuries sustained while pushing the Auto bearing registration No. CG-04-J-3943 owned by fhe appellant No. 1, being driven by appellant No. 2 and insured by the respondent No. 6/insurance company. 3. The Tribunal awarded a sum of Rs. 4,25,000/- in favour of the claimants and as against the appellants and exonerated the -.'L 6. 7. insurance company from its liability to pay compensation to the claimants accepting its plea regarding invalidity of driving licence. According to learned counsel appearing for the appellants the driver of the offending vehicle was having LMV licence; the vehicle was Tempo; at the time of accident it was not in commercial use; therefore the Tribunal has erred in exonerating the Insurance company from its Hability to pay compensation to the claimants. On the other hand, learned counsel appearing for the respondent No.6/insurance company would submit: indisputably the vehide was insured as commercjal vehicle; filled with utensils at the time of accident; the insured has deliberately breached the condition of policy; handed over the vehicle to a driver who was not having valid and effective driving licence to drive transport vehicle. He would further submit that the LMV licence is not valid to drive transport vehicte and as such, the Tribunal has rightly exonerated the insurance company and has rightly fastened the liabtlity upon the appellants. We have heard the counsel appearing for the parties and perused the Lower Court Record. Indisputably, the driver/owner of the offending vehfole was not holding a licence to drive light motor vehtele (transport vehicte). He was only having licence to drive light motor vehtele (non- transport vehicle) and as such was not authorized to drive '•s—v S 8. transport vehtele; his licence was issued for the period of 18 years whereas the licence to drive the transport vehtele cannot be issued for a perlod of more than three years. The Supreme Court in case Ashok Gangadhar Maratha v. Oriental Insurance Company1 has held : "a transport vehicle may be a light motor vehicle but for the purpose of driving the same, a different licence is required to be obtained". The licence having been granted for a period of 18 years, a presumption therefore, arises that it was meant for the purpose of the vehtele other than transport vehtele. Had the driving licence been granted for transport vehicle, the tenure could not have exceeded to 3 years. The above view is agajn re-iterated in case of Oriental Insurance Company Limited v Angad Kol and others2. Thus, so far as, the finding recorded by the Tribunal regarding invalidity of driving licence of the driver of the vehicle is concerned, the same is based on proper appreciation of material and evidence placed on record and we ateo afflrm the above finding. However, in view ofjudgment of Supreme Court in case of National Insurance Company Ltd. v Swaran Singh and others3, the Tribunal ought to have allowed the claimants to recover the amount of compensation from the insurance company with a direction to recover the same from the owner of the vehicle by filing execution before the claims Tribunal; 11999(6)8cc 620 2 2009(11)3cc356 3 2004 (3) SCC 297 ^ "':-^. l":";^J ^.. v^''."--^'.^' "^-~:^^ c^ 9. In view of above atthough we affirm the finding of the Tribunal but we modify the award to the extent that the insurance company is liable for payment of compensation so far as third party is concerned, but the insurance company is entitled to recover the same from the owner/driver of the vehicte by flling execution before the claims Tribunal. We further direct that the Tribunal shall seize the offending vehicle before disbursing the amount of compensation to the claimants. No order asto costs. Sd/- I-M.Quddusi Judge Sd/- N.K. Agarwal Judge Sahu