IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISCELLANEOUS APPEAL (C) N0 ^f^ OF ^011 OiViSiOn Benck APPELLANT RESPONDENT N0. 2 RE^PONDENTS ^CLAIMANTS 4 ^PFCO Tokio General Insurance Co. Limited, 3rd Floor, Shop No. 345-347 Ganga Shopping, Near Mata, G.E. Road, Raipur, Tehsil & District Raipur, Chhattisgarh VERSUS Smt. Neeta Khanday, wife of Late Shri Durga Prasad Khanday, aged about 29 years ^ ^ ^- 6. 7. ^ /• Vinod Khanday, son of Late Shri Durga Prasad Khanday, aged about 24 years Kumari Suman Khanday, daughter of Late Shri Durga Prasad Khanday, aged about 19years Kishore Kumar Khanday, son of Late Shri Durga Prasad Khanday, aged about 13 years Kumari Kiran Khanday, daughter of Late Shri Durga Prasad Khanday, aged about 13years Amit Kumar Khanday, son of Late Shri Durga Prasad Khanday, aged about 9 years Respondent No. 4 and 6 being minors are represented through their mother Smt. Neeta Khanday, wife of Late Shri Durga Prasad Khanday Smt. Kapra Bai, wife of Late Shri Khulasi Ram Khanday, aged about 59 years \ Alt residents of Village Baghelkapa, Post Bija, Thana and Tehsil Takhatpur, District Bilaspur, Chhattisgarh Dharam Lal Kaushik, son of Shri Gorelal Kaushik, aged about 36 years, resident of Ganiyari, Bus Stand, Post Ganiyari, Thana Kota, Tehsil Takhatpur, District Bilaspur, Chhattisgarh (DRIVER AND OWNER) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MQTQR VEHICLESACT1988 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. cl. M.A.rdNo. 713/2011 Appellant Respondent No.2 Respondents Claimants Vs Iffco Tokio General Insurance Co. Limited, Raipur (CG) Smt. Neeta Khanday and others ORDER FOR CONSIDERATION Sd/- G. Minhajuddin Judge \G .11.2011 HON'BLE SHRI I.M. QUDDUSI.^ ^ o^^ Sd/- I.M.Quddusi Judge [^. 11.2011 POST FOR ORDER ON i ? NOVEMBER. 2011 Sd/- G. Minhajuddin Judge HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. c^ Appellant Respondent No.2 Respondents Claimants IVI.A.MNo. 713/2011 Vs Iffco Tokio General Insurance Co. Limited, Raipur (CG) Smt. Neeta Khanday and others Present: Mr. Amrito Das, counsel for the appellant/insurance company. Mr. Goutam Khetrapal, counsel for respondents No. 1 to 6. None for respondents No. 7 & 8, though served. ORDER (Passed on\^ November, 2011) Per I.M. Quddusi. J; 1. This appeal has been filed by the appellant/insurance company under Section 173 of the Motor Vehicles Act, 1988 against the award dated 4.4.2011 passed by Motor Accident Claims Tribunal, Bilaspur (in short "the Tribunal"), in Claim Case No.20/07, so far as liability to pay compensation to the respondents/claimants has been fastened upon the appellanVinsurance company, jointly and severally, along with owner-cum-driver (respondent No.8) of the vehicle. 2. Brief facts of the case, as per version of the claimants in the claim petition, are that on 28.5.2007 Durga Prasad Khande along with his family was going to Village - Pendari from Village - Baghelkapa by auto rickshaw bearing registration No. CG 10/T-0408. However, on account of rash and negligent driving by respondent No.8, the auto jumped on account of pit on theroad, as a result of which Durga Prasad fell out of the auto and sustained grievous injuries. He was taken to CIMS Hospital, Bilaspur for treatment in unconscious condition, from where he was referred to Raipur Medical College, where he died during treatment on 31.5.2007 at about 5.30 pm. At the time of accident, the said vehicle was being driven by lA@ respondent No.8, who was also owner of the vehicle and it was insured with the appellanVinsurance company. 3. At the time of accident, the deceased was 35 years of age and was working as peon in Jal Vahak Kanya Ashram, Rampur, Distt. Korba and was drawing salary of Rs.6,750/- per month. The claimants, who are widow, children and mother of the deceased, were fully dependent upon him. Therefore, they filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") before the Tribunal for a total compensation of Rs.18,71,080/- against the death of Durga Prasad Khande under various heads. 4. However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.9,15,000/- fastening the liability upon the appellant/insurance company, jointly and severally, along with the owner-cum-driver (respondent No.8) of the vehicle. 5. Heard learned counsel for the parties, perused the LCR as also the impugned award. 6. Contention of learned counsel for the appellant/insurance company is that respondent No. 8, owner-cum-driver of the auto rickshaw, which is a commercial passenger carrying transport vehicle, was not having a valid and effective driving licence on the date of accident i.e. 28.5.2007 because respondent No.8 was having a licence only for LMV (Non-Transport Vehicle) and there was no endorsement for driving a commercial transport vehicle. Learned counsel has further contended that in addition to this, from perusal of photocopy of the driving licence of respondent No.8 (owner-cum-driver), it is crystal clear that it was granted for a period of 20 years i.e. from 24.3.2004 to 23.3.2024 and a driving licence for transport vehicle can only be granted for a period of three years, as per provisions of clause (a) of sub-section (2) of Section 14 of the Act, 1988. He has further contended that as respondent No.8 (owner-cum-driver) was not having a valid and effective driving licence on the date of accident i.e. 28.5.2007, therefore, the appellant/insurance company is not liable for payment of compensation or for indemnifying respondent No.8. 7. Learned counsel for the appellant has also contended that from the statements of Smt. Neela Khande (AW-1), who is widow of the deceased, it is clear that at the time of accident, the deceased was sitting by the side of respondent No.8 (owner-cum-driver) in the auto rickshaw, whereas there is no sitting capacity in the auto rickshaw beside the driver, and therefore, on account of breach of conditions of policy, the appellanVinsurance company is not liable to pay compensation to the claimants/dependents ofthe deceased. 8. In addition to oral arguments, learned counsel has alsosubmitted written arguments and in support of his contention, has cited judgments of the Hon'ble Supreme Court in the matters of New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir and another, (2008) 8 SCC 253; and Oriental Insurance Co. Ltd. Vs. Angad Kol and others, 2009 AIR SCW 2747. 9. On the contrary, learned counsel for' respondents No. 1 to 6/claimants has contended that as the deceased was an occupant of a public service vehicle i.e. commercial passenger carrying vehicle auto rickshaw, therefore, the deceased by virtue of provisions of Section 147 (b)(ii) of the Act, 1988 is covered by the act policy. Learned counsel has further contended that so far as possessing of a valid and effective driving licence by respondent No.8 (owner-cum-driver) is concerned, he was having a licence to drive LMV and the witnesses examined on behalf of the appellanVinsurance company have categorically stated that respondent No.8 (owner-cum-driver) was possessing a valid and effective driving licence to drive auto rickshaw. 10. He has also contended that as the deceased was a 3rd party, therefore, in view of the law laid down by the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh, (2004) 3 SCC 297; National Insurance Co. Ltd. Vs. Laxminarayan Dhut, (2007) 3 SCC 700; and Jawahar Singh Vs. Bala Jain and others; (2011) 6 SCC 425, the appellant/insurance company is liable to pay the amount of compensation to the claimants/dependents of the 3 'i\\ ..^ party, which the appellant/insurance company can recover from owner ofthe vehicle i.e. respondent No.8 herein. 11. From the evidence, oral and documentary, adduced before the claims Tribunal, it stands established that respondent No.8 (owner- cum-driver) was possessing a licence to drive LMV (Non-Transport Vehicle) and there was no endorsement in the licence to drive a transport vehicle. 12. The Hon'ble Supreme Court in the case of Roshanben Rahemansha Fakir (supra), in para - 10 has observed thus: "10. Section 10 of the Act provides for classes of the ' driving licence. Different classes of vehicle have been defined in different provisions of the Mqtor Vehicles Act. The "transport vehicle" is defined in Section 2(47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three-wheeled vehicle for transport of passengers or goods comes within the purview of Class 5 of the Table appended thereto. The licence granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13th May, 2004 to 12th May, 2024. Section 14(2)(a) provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued or renewed for aperiod of 20 years from the date of issuance or renewal. The fact that the licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle." 13. 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Meqs>|ou oine 9Aup ueo (epiqeA iJodsueji-uoN) AIAII -10^ eoueoii e Buip|oq uosjed e ^eqi pe^s 9Aeq 'Auedujoo eouejnsui/iueiiedde sqi pjieqeq uopeujuuexe ej9M oqM 'ueqx iiyjeBzv pue e^nqs jeiunx BUL|SU>I S9SS9UIIM eqi q6noL|i|v "eoueoii 6u!AUp siq peonpojd jo ^esLuiLi p9uiuuex9 jou |eunqui suuiep eqi ©jojeqpejeedde jeqiieu seq (JOAup-Luno-jeuMo) Q-ON luepuodsej 'eseo lueisui 941 u| •QI, •9|oiq9A yodsueji BuiAjjeo je6u9ssed |epj9Luiuoo e 8AUp 0} 93U9011 6uiAUp 9AIP8J49 pUB P!|BA B BuiABq SBM (JOAUp-LUnO -jeuMo) Q'ON luepuodssj ^eqi pies eq louueo }\ 'qoiqM PIUBM jo^ pue ^ess909u si eoueoii eqi ui lueiiiesjopue ue 'eujes 941 6UIAUP JQ^ inq 'epiqeA JOIOLU iq6i| e eq Aeiu epjqeA yodsueji v "8961- 'PV eqi p ^i. uoipes P (3) uoipes-qns p (e) 9sne|0 p suojsiAojd jed se 'sjeeA eej^ p poued e joj A|UO peiuejB eq ueo eioiqeA ijodsueji e jo^ eoueoii seejeqM 'sjeeA QZ JOj SBM AI,!P!|BA p poued s}\ ieqi je9|0 Sl }\ '90U90!| BUIAUp QL|I p Adoooioqd p lesmed LUOJJ. 'snL|i "^t. ..-sjeeA QZ jo poued e jo^ OAipe^e uieiuej ABLU }\ 'eoueoii je^o Aue jo eseo ui seeje^M ,,9|3iM9A ijodsueji,, e 9Aup o} eoueoii 9Alp9J^9 UB p 9SBO Ul sjBoA 99jqi jo pouod e p uoiiejnp / 16. So far as directing the appellant/insurance company to first pay the amount of compensation to the claimants and then to recover the same from the owner-cum-driver i.e. respondent No.8 is concerned, as there is a clear breach of terms and conditions of the insurance policy, the appellant/insurance company cannot be directed to first pay the amount of compensation to the claimants and then to recover the same from respondent No.8 (owner-cum-driver). Though in the cases of Roshanben Rahemansha Fakir (supra) and Angad Kol (supra), the Hon'ble Supreme Court has directed the insurance company to pay the amount of compensation to the claimants and then recover the same from the owner, but from the judgments itself it is clear that those orders have been passed in exercise of powers conferred on the Hon'ble Supreme Court under Article 142 of the Constitution of India, which is not possessed by any other Courts. In addition to this, with regard to order of pay and recover, the matter has been referred to a larger Bench in the case of National Insurance Co. Ltd. Vs. Parvatheneni and another, (2009) 8 SCC 785 and as such, the order to pay and recover cannot be passed against the appellanVinsurance company. 17. In the result, the appeal is allowed. The impugned award, so far as it relates to fastening of liability, jointly and severally, upon the appellant/insurance company to pay the amount of compensation to the claimants, is set aside. The appellant/insurance company is exonerated of its liability. However, respondents No. 1 to 7/claimants shall be free to recover the amount of compensation from respondent No.8 (owner-cum-driver). The amount, if any, deposited by the appellanVinsurance company, if not disbursed, shall be allowed to be withdrawn by it. However, if the amount has already been disbursed, then the appellant/insurance company shall be entitled to recover the same from respondent No.8 (owner- cum-driver). 18. No order as to costs. Sd/- I-M.Quddusi Judge Sd/- G. Minhajuddin Judge ^