.LI^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (C) No.- (G ^&/a-& APPELLANT c THE ORIENTAL INSURANCE COMPANY LIMITED, THROUGH DIVISIONAL MANAGER, DIVISIONAL OFFICE, NO.-l, KUTCHARI CHOWK, JAIL ROAD, TAHSIL «& DISTIRCT - RAIPUR (CHHATTISGARH) Vrs. RJESPONDENTS/CLAIMANTS:- ^~ ./K' ^' > ^ ^.^" 4. SHRIKANT SINGH AGE 62 YRS. S/0 LATE DHARAMDEO SINGH SMT. SHANTIDEVI SINGH AGE 55 YRS. WIFE SHRI SHRIKANT SINGH, MINOR KU. SHALINI AGE 10 YRS. D/0 LATE CHANDRASHEKHAR SINGH MINOR AYUSH KUMAR SINGH AGE 8 YRS. S/0 LATE CHANDRASHEKHAR SINGH RESIDENT OF RAMESHWAR NAGAR BHANPURI, THANA- KHAMTARAI RAIPUR CITY, TAHSIL & DISTIRCT - RAIPUR (CHHATTISGARH) (FOR MINOR RESPONDENTS N0.- 3 & 4, AS NEST FRIEND GRAND FATHER SHRIKANT SINGH) RESPQNDENTS/NON-APPLICANTS : - /^^g WKS ^s ISl PURNACHANDRA S/0 SHRI RAMCHANDRA, RESIDENT OF VILLAGE KARADIYA, POST OFFICE - TAGABILA, DISTRICT - MAYURGANJ (ORISSA) (OCCUPATION - DRIVER OF VEHICLE MINIBUS) SMT. DAMYANTI HASANDA W/0 SHRI JAGANNATH HASANDA, RESIDENT OF CHINGUDI POKHARI, HATBADARA, R.R.PUR, DISTRICT- MAYURGANJ (ORISSA) (OCCUPATION - REGISTERED OWNER OF VEHICLE MINI) ..2.. ..2.. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 APPEAL VALUED Rs. 10,T9,000/- ( APPEAL BY INSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNAL Rs. 40,00,000/- AWARDED AMOUNT BY TRIBUNAL Rs. 10,29,000/- r "^'-'~;^; HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Respondents Claimants M.A. M No. 1040/2008 Vs The Oriental Insurance Company Limited, Raipur (CG) Shrikant Singh and others Present: Mr. Sudhir Agrawal, counsel for the appellant/insurance company. None appears for the respondents. ORDER fOral) (13th October, 2011) Per I.M. Quddusi. J; List is being revised. Case called out twice. However, no one is present for the respondents. Therefore, we have no other option but to proceed ex-parte against the respondents. This appeai has been filed by the appellanyinsurance company against the award dated 29.2.2008 passed in Claim Cases No.54/06 by the 7th Additional Motor Accident Claims Tribunal, Raipur (in short "the Tribunal"), jnsofar as it relates to fastening of liabiljty upon the appellant/insurance company to pay compensation. 02. Brief facts of the case are that on 30.4.2004, Ashwani Kumar Singh along with his friend Chandra Shekhar Singh, hjs wife Smt. Suman Singh and children, was going from Village-Karanjjya to Bangroposhi, by driving the vehicle Indica Car bearing registration No. CG-04B/1040, owned by Chandra Shekhar Singh. On the way, at about 1 pm, respondent No. 5 by driving the mini bus bearing regjstration No.O.R.-11/9226 (hereinafter referred to as "offending vehicle"), in a rash and negligent manner, came from opposite directjon and dashed the sajd Indica car. On account of the accident, the driver of Indica car Ashwani Kumar sustained grievous injuries, whereas Chandra Shekhar Singh and his wife Smt. Suman Singh died on the 2- spot. Report ofthe accident was lodged at Police Station - Bisoi, Distt. Mayurganj (Orissa). 03) At the time of accident, deceased Chandra Shekhar was aged 32 years and was gettingsalary of Rs.6000/- per month by working in Balaji Transportation Company. His wife deceased Smt. Suman Singh was aged 28 years and she was also earning Rs.3000/- per month from tuition and stitching work. Therefore, the claimants, who are parents and minor children of the deceased, filed a clajm petition under Section 166 of the Motor Vehides Act, 1988 (in short "the Act. 1988") for a total compensation of Rs.40,00,000/- against the death of Chandra Shekhar and Smt. Suman Singh under various heads. 04) However, learned Tribunal, after close scrutiny of the evidence available on record, after hearing learned counsel for the parties. by the impugned award granted a total compensation of Rs.10,29,000/- in favour of claimants, fastening the liability upon the appellanVinsurance company. 05) Heard learned counsel for the appellant/insurance company, perused the lower court record (LCR) as well as the impugned award. 06) Learned counsel for the appellant/insurance company has raised a contention that the driver and owner of the offending vehicle had failed to produce any particulars of the driving licence. Thus. in the absence of the same, it was not possible for the insurance company to produce any evidence regarding the fact whether the driver was having a valid and effective driving licence on the date of accident or not. However, the Tribunal has drawn an adverse inference against the appellant/insurance company by holding that if the driver or the owner had not produced the driving licence, it cannot be said that the driver was not having a valid and effective driving licence. In our opinion, the adverse inference drawn on the basis of this findjng against the appetlant/insurance company by the Tribunal is not sustainable in the eye of law and deserves to be set aside. When the particulars of the driving licence would not be known to the insurance company and when it would not be known as to from which place the driving licence was issued, it wouid not be possible for the appellant/jnsurance company to produce evidence of the concerned RTO. tt is not possibte to produce the evidence of all the RTOs or verify from all the RTOs as to whether the driver of the offending vehicle was having a valid and effective driving licence or not. 07) Section 134 of the Act, 1988, provides that it is the duty of the driver to give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the acddent, namely: (J) insurance policy number and period of ite validity; (ii) date. time and place of acddent: (iii) particulars of the persons injured or killed in the accident; (iv) name of the driver and the particulars of his driving tjcence. Further, in the explanation, it has been clarified that for the purposes of this section, the expression "driver" includes the owner of the vehicle. Therefore, sub-clause (iv) of clause (c) of Section 134 imposes a duty upon the owner and driver of the vehicte to disclose the particulars of the driver and his driving licence. Thus, jf partteulars have not been produced by the owner or driver, there is breach of statutory provisions of the Act, 1988 and for that, the insurance company cannot be held liable. 08) In view of the above, we ailow this appeal and exonerate the appellant/insurance company from its liability to pay compensation to the claimants. The finding on Issue No. 4 as well as fastening of liabijity upon the appellant/insurance company are set aside. However, it wjll be open for the daimants to realize the amount of compensatjon from the owner ofthe offending vehicle. 09) The amount which is in deposjt shall be allowed to be withdrawn by the appellant/insurance company. However, if the same or any part thereof has been disbursed, the appellant/insurance company shall be at liberty to recover it from the owner of the offending vehicle. No order as to costs. I i Sd/- G. Minhajuddin sd/~, . Judge I.M.Quddusi Judge ^