HIGH COURT OF CHHATT!SGARH AT BILAPUR S SB: HON’BLE SHRI R.N. CHANDRAKAR., J Misc. Appeal No. 337 of 2002 A‘ppell‘ant The Oriental Insurance Co. Ltd. through its Divisional Manager, Divisional Office, Bilaspur (CG). Vs. Respojndents Susbhash s/o. Dhaniram Suryawanshi and two others. y‘ Sd/- POS'T FOR PRONOUNCEMENT OF ORDER JUDGE l/l —7-201 w}? 3d]. R.N.Chandrakar Judge 14 -7—2011 1 HIGH COURT OF CHHATTISGARH, BILASPUR (SB: Hon’ble Shri Justice Rangnath Chandrakar) Misc. Appeal No. 337 of 2002 The Oriental Insurance Co. Ltd., through its Divisional Manager, Divisional Office, Bilaspur (CG). Apideiiant insurer/ Nori-Appiicant No.3 Versus Subhash s/o. Dhaniram Suryawanshi, aged about 30 years, r/o. village Chapora Tehsil & District Bilaspur (Chhattisgarh). Responden‘ Claimant e w Smt. Vidyawati Tiwari, w/o. M.P. Tiwari, r/o. Qtr.No. MQ.125 Deepika Colony, Gevra Project, SECL, Korba (CG). Parameshwar s/o. Deepak Sahu, aged about 32 years, r/o. village Dogi, P.S. Ratanpur, Distt. Bilaspur (CG). (Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988) Owner Non-applicant No.1. Driver Non-Applicant No.2 Present: :Mr. Abhishek Sinha and Mr. Ghanshyam Patel, counsel for the appellant. Mr. Ravindra Agrawal, counsel for respondent No.1. Mr. Akhilesh Mishra, counsel for respondents No. 2 and 3. ORDER (Passed on ‘1 -7-2o11) This appeal has been preferred by the Oriental Insurance Company challenging the award dated 21-12—2001 passed by Vth Additional Motor Accident Claims Tribunal, Bilaspur (for short, “the Tribunal”) in Claim Case No. 13/2001. , 2. Brief facts of the case, in a nutsheil, are that on the date of accident t.e., t 11—5—2000 when claimant/respondent No.1 was coming to Bilaspur in Minibus bearing registration No. M.P.26/C-5766 near tliliage Podi, at that-time, the said vehicle which was being driven by éiriver/respondent No.3 rashly and negligently dashed one Baniyan tree as a result of which the claimant/respondent No.1 sustained l ihjuries including fracture of right hand, resulting in 40% temporary disability. The claimant/injured preferred an application under I V ‘ Section 166 of the Motor Vehicles Act, 1988 (henceforth “the Act”) for claiming compensation of Rs.14,45,000/~. The Tribunal awarded compensation of Rs.60,000/- in favour of the claimant fastening the liability on the appellant/insurance company. Hence, this appeal. Learned counsel appearing for the appellant/insurance company, amongst others, has challenged the award mainly on the ground that there was breach of contract on the part of the owner of offending vehicle as the driver was not having a valid driving licence at the time of accident. The finding of the Tribunal in para 14 of the award that he respondent No.3/driver was issued a driving licence to drive a light motor vehicle only with the endorsement for non-transport vehicle by the concerned RTO and as such the Minibus falls within the category of light motor vehicle, therefore, it cannot be held that the driver/respondent No.3 was not holding a valid and effective driving licence on the date of incident, is perverse and bad in view of Rule 7 of the M.P. Motor Vehicles Rule 1994. The Claims Tribunal I \ has completely ignored the statutory legal provisions which clearly \\ lay down that to drive a transport vehicle (used for carrying t passengers or goods) a specific endorsement and batch number is mandatory and the licence produced by the respondent No.3 clearly snows that he was not authorized to drive a transport vehicle as it was for non-transport vehicle. As such, there was a clear Vioiation of liability could have been th‘e insurance policy and thereforerno fastened on the appellant/insurance company. Therefore, the impugned award passed by the tribunal be set asrde and the appellant be exonerated from liability ‘ impugned award Per contra learned counsel appearing for respondent No’l and learned counsel appearing for respondents 2 & 3, supported the l have heard learned counsel for the parties, perused the impugned award and record of the Tribunal. Admittedly, the offending vehicle bearing registration No. M.P.26/C- 5766 was a transport vehicle as defined Act, 1988 which was insured with the appellant/The Oriental ‘ insurance Company Ltd., under cover note number 736571, policy under Section 2 (47) of the type— passenger carrying commercial vehicle. So far as the question of fastening liability on the appellant/insurance company on the ground of breach of contract/policy is concerned, the onus to prove was on the appellant. one Anil Sao (NAW/1) - the Assistant Administrative Officer of the appellant/company who admitted in his deposition that the offending vehicle with the sitting capacity of 20+2 was insured under the terms and conditions of the policy (EX.N3-1) with the appellant/insurance company. The driving licence No. P/1327/2000 was issued by the The appellant examined w /§2\ RTO to the driver of offending vehicle for driving light motor vehicle ; with the endorsementfor non-transport vehicle. He had brought the l original of the driving licence (Ex.NA/3-2) which was returned after 1verifylng the photocopy of the same and marked NA/3-2-C. He l l further stated that one Manoj Agrawal was appointed as a surveyor lto verify the driving licence of the driver. The original report l (EX.N.A3—3) was returned after verifying the photocopy of the same I (EX,N.A.3-3-C). He also admitted the receipt of Rs.50/— paid to RTO ifbr‘. verifying report (Ex.NA/3-4C). ln his cross examination he 3 admitted that a written order for appointing surveyor is issued by the ‘office but no such order has been produced in the case and the ‘.driving licence of the driver (Ex.N.A.3-2C) was not obtained by him and he could not identify the signature of the concerned RTO. Except this, nobody was examined by the appellant to prove the breach of policy condition. On the other hand, on perusal of the written statement filed by the respondent No. 2 — owner, it is found that he has nowhere pleaded that he allowed the driver after taking reasonable care to find out and being satisfied with the fact that the driver was holding a valid and effective driving license. lt is further made clear that he did not examine himself before the tribunal to prove the same. ln view of the above, a disputed question of fact arises as to whether the driver had a valid licence or the owner of the vehicle committed the breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing the driver to drive the offending vehicle who did not have a valid driving licence whic is to h be decided by the evidence available on record. From perusal of the record and on a close scrutiny of the entire evndence available on record it is clear that the drivmg licence of the driver of the offending vehicle was seized from the spot Vide Ex.A/6 l Which goes to show that he was issued a driving licence (Ex.NA/3- l (2)C) to drive light motor vehicle only with the endorsement for non— transport vehicle which is’also corroborated by the report (NA/3(3)C) .V- o (3)C. Thus, the driver was not holding a valid and efective driving f . licence at the time of accident as provided in Section 3 of e Act, th 1988 in absence of ndorsement of authorization to drive transport e vehicle under Rule 7 of the MP. Motor Vehicles Rules, 1994. Rule 7 of the M.P. Motor Vehicles Rules 1994 reads as under: f Manoj Agrawal, surveyor of the company vide the report NA/3 “7. Authorisation to drivevTransport veicle: (1) An certificate for authorization to drive a transport vehicle shall be made in Form M.P.M.V.R.-1 (ATVA) along With - (a) the drivmg licence issued in form 6 or 7 of the central Rules and (b) the fees as specified in rule 24. (2) The Licensing Authority to which application i made for grant of authorization under this rule may if it thinks fit, in order to ascertain whether th applicant is a fit person for being granted th authorization and whether the applicant is not disqualified for holding or obtaining a driving licence or to drive othenNise, make enquiries into the character and antecedents from the Superintendent or Police within whose jurisdiction the applicant reSIdes (3) lf the Licensmg Authority is satisfied that the applicant is in all respects eligible and fit to be authorized to drive a transport vehicle, his driving licence shall be endorsed accordingly under the seal and signature of the Licensing Authority. (4) The Licensing Authority shall refuse to grant the authorization if it finds that the applicant is not \.,\ h s e , e eligible or fit person to drive transport vehicle and accordingly inform the applicant in writing giving reasons thereof.” In this regard a DiVISlon Bench of this Court In Misc Appeal (C) No 797 of 2007 deCIded on 24 2 2011 relylng on the deCISIons of Hon ble the Apex Court In New lndla Assurance Company Limited i vs Prabhu Lal reported In (2008) 1 SCC 696 and m Oriental Insurance Company Limited vs Angad Kol and others reported in (2009) 11 SCC 356, held that for drivmg a transport vehicle an endorsement with authorization is mandatory and a person having liCence to drive light motor vehicle cannot drive a transport vehicle unless his driving licence specincally entitles him so to do (Section 3‘). Clauses (14), (21) (28) and (47) of Section 2 make it clear that if a vehicle is “light motor vehicle”, but falls under the category of transport vehicle, the driving license has to be duly endorsed under Section 3 of the Act. So far as the onus to prove the breach of contract was on the appellant/company is concerned, dennitely the appellant/company failed to examine the surveyor ManojAgrawal and the concerned RTO to adduce evidence in this regard but a Division Bench of this Court in Misc. Appeal No. 1019 of 2003 and other connected matters decided on 11-9-2007, relying on the decisions of the Apex Court in the matters of National Insurance Company Limited vs. Swarna Singh and others, reported in 2004 AIR SCW 663and in ‘ National Insurance Company Limited vs. Laxmi Norain Dhut, reported in 2007 AIR SCW 2279 held that in order to discharge burden it is not necessary that burden can be discharged only by .\A\ adducing evidence by the patty. Burden can be discharged based on any material on record, documents avaiiabie on record or by bringing facts on record in cross-examination of witnesses of the opposite party. %hus, in absence of any pleading or evidence adduced by the owner ojf the offending vehicle to the effect that he allowed the driver after taking reasonable care to find out and being satisfied with the fact that the driver was holding a valid and effective driving license, this ¢durt is not hesitant to rely onthe evidence of Anil Sao (NAW/1) and the documents on record and holds that the appellant/company has been able‘to discharge its burden regarding the breach of contract of insurance policy. In view of the foregoing discussions, i am of the considered opinion that the appellant/insurance company is ot liable to pay compensation. Accordingly, the appeal of the insurance company is allowed exonerating the insurance company/appellant from the liability and that part of the impugned award is set aside. l direct the appellant/company to deposit the entire awarded amount of compensation and may recover the same from the owner and driver of the offending vehicle. Remaining part of the impugned award is not interfered with. No order as to costs. ‘ A SW; R ' ‘l KN.Challdlakar Judge T n