Ye IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fa No. V\\ of 2011 APPELLANT NON-CLAIMANT —...id11 Presented bv E^ '. Dated.. ot^-o 1, TTZ'Z^ VERSUS RESPONDENTS CLAIMANTS Ravi Dewangan S/o. Shri Harilal Dewangan. aged about-24 years, Occupation- Owner. R/o. Kosta para Raigarh, District- Raigarh (C.G.) 1. Kaushal Prasad Baghel S/o. Anandram, aged about-SOyears, 2. Ashish Prasad Baghel S/o. Kaushal Prasad Baghel, aged about- 4 years, Through Legal heirs (Father)- Kaushal Prasad Baghel. All R/o. Village - Chuchubhata, Tahsil- Dabhra, District - Janjgir- Champa (C.G.) NON CLAIMANTS Mano] Patel S/o. Golke Patel, Aged about- 27 years. Occupation- Driver R/o. Village- Punjipathara. Tahsil- Tamnar. District- Raigarh (C.G.) The New India Insurance Company Limited. Divisional Office Korba, New Transport Nagar, Sada Compjex Korba (C.G.) MEMORANDUM OF APPEAL UNDERSECTION 173 OF MOTOR VEHICLE ACT HIGH COURT OF CHHATTISGARH AT BIIASPUR M.A.ICt N0.111 OF 2011 APPBLLANT {NON-CLAIMANTl RESPONDENTS Ravi Dewaiigaii Versus Kaushal Prasad Baghel aiid others. M.A.tCI N0. 112 OF 2011 APPBLLANT fNON-CLMBaAKTl HESPONDBN'ra Ravi Dewaiigaii Versus Ashish aiid otliers, Present s Sliri Abhishek Sai'af, couiisel for tlie appellaiit. Shri Vijay Deshmukh, counsel on behalfof respondent No. 1& 2 m M.A.(C) No. 111/201 1 and respondent No. 1 in M.A.(C) No. 112/2011. Sliri Sudlidr Agt'awal, couasel for respondent No.4 m MA(C) No. 111/2011, respondent No.3 mMA(C)No. 112/2011. APPEALS UNDER SECTION 173 OF THE MOTOR VEmCLES ACT (Division Bench: Hon'ble Shri I.M. Quddusi & Hon»bleShri G. Minhaiuddin. JJ.) ORAL ORDER (Passed on 16tfa day ofJune, 2011) Per I.M. Ouddusi. J. The above appeal beariiig M.A.(C) Nos. 111/2011 aiid 112/2011 ai'e being disposed ofby tlais common order as botli tlie appeals arose out of tiie same accident. 2. These appeals (M.A.(C) Nos. 111/2011 and 112/2011 have been filed agauist tlie award dated 28-08-2010 passed m Claim CaseNos. 64/2008, aiid ..^T"^ /"..^^ sl Claim Case No.26/2009 respectively by the learned Additional Motor Accident Claims Tribunal, Sakti, District Jaiijglr-Cliainpa (for short <tlie Claims Tribunal'), by tiie owner of tlie vel-ucle miposing liability upon him aiid exoneratiiig tiie Insurance Company to pay compensation to the claimaiits. 3. The facts m brief ai'e tiiat on 26-04-2008 deceased Pravritta Bai aiid her fom' yeai's old son Ashish were gomg from vUlage Chliucliliubhata to viUage Llnatai'a along witii her brofher Anil Kumar Jatwar by Heix> Honda motorcycle beai'iiig registration No. C.G.11-B.B./9532, as pUUon rider. On tiie way, neai' village Putidili Bus staiid, flie said Hero Honda motorcycle was dashed by Truck beariiig registi'ation No. C.G. 13-D/1211 due to i-ash aad negUgent driving of the driver of flie oflTendiiig veliicle fTruck), as a result of wliich Pravritta Bai died on tl-ie spot and her son Ashish sustained grlevous mjuries in tiie said accident. 4. The claimaiits have filed separate clajai petitions mider SecUon 166 of tiie Motor Veliicles Act, 1988 (for short tlie Act5) befoi-e tiie Clalms Tribuiial concerned claiming Rs.39,46,000/- m Claim Case No. 64/2008 as compensation for fhe deatii of Pravritta Bai (deceased) and Rs. 66,78,000/- in Claim Case No.26/2009, for tlie uijuries sustaiiied by Ashish, lii the said accident. 5. The leai'ned Claims Tribunal, on a close scrutmy of evidence adduced, material avaUable on record aiid submissions made by tlie parties, has awai'ded a suin of Rs. .4,49,500/- in Claim case No. 64/2008 aiid Rs.5,15,000/- m Claim Case No. 26/2009 along with iiiterest @ 7% per amium fi'om tiie date offlie petition. 6. Learned counsel for flie appellaatwoiild submit that the appellaat aiid tlie di'iver of fhe ofiending vehicle have filed written statement in whlch it was speciflcally ^ f ,^^^ ^>^ ,.\ ^•f^SSSiM nt/ mentioned that fhe driver was haviiig valid and effecttve drivmg Ucence on tlie date of accident. The driviiig Ucence is a pait of flie record wliich shows that fhe same is purported to be issued on 18-07-2003 for Light Motor Vehicle only and it was valid tUl 17.7.2006. However, on 17.7.2006 itself aii endorsement of lieayy goods transport vel-ucle' was made by R.T.O & Licensmg Authority OMVD, Sambalpui' wliich was valld up to 16.7.2009. Thougli tlie driviiig Ucense contiiiued from 2003 to 2009 but tlie official of the R.T.O. Sambalpur has stated In liis statement tiiat tlie di'iving Ucense was not issued m tiie name of driver Maiioj Patel from Sainbalpm' aiid as such tiie drivmg Ucence appeai's to be a fake. 7. Relying on the judgment of HonT^le the Supreme Courl ixi llie uialter of Uvdted Jncfia Insurance Co. LtcL vs. Lehru and others; reported iii 2003 (3) 8CC 338, leai'ned couiisel for tiie appellaiit submlts that lt is not a case of <no Ucence?. In ti.ie matter of Lehfu's Case (supra) ui para 20 fhe Hon^ble Supreme Court has held ftius: "20. Wlien an owner is liu'UTg a driver he will therefore have to check whether tiie driver has a drivitig licence. If tiie driver produces a di'ivuig Ucence which on tiie face of it looks geauiiie, the owner is not expected to fiiid out whether tiie Ucence has iii fact been issued by a competent authority or not. The owner would fhen take tlie test of the driver. tf he finds that fhe driver is competent to drive fhe vehicle, he wUl hire the driver. We find it ratiier strange tliat iiisurance compames expect owners to make enquiries wifh RTOs, wliich ai'e spread all over tlie countiy, whether tlie drlvhig Ucence shown to ttiem is valid or not. Thus where the owner has satisfied hunsetf fliat the driver has a liceiice aad is •^ f ^ f'<? / € ^,:—.^^ '^?^..ll ^.. 'r-^^s^ o driving competently fhere would be no breach of Section 149(2)(a)(U). The uisurance compaiiy would not flien be absolved of liability, If it ultimately turns out tiiat fhe Ucence was fake, the uisuraiice compaiiy would continue to remaui Uable unless they prove that the owner/uism'ed was aware or had noticed tiiat the Ucence was fake aiid stUl permitted tliat person to drive. More impoitanfly, even iii such a case fhe uism'ance company would remaiii liable to tiie uiiiocent tliu'd pai'ty, but it may be able to recover from flie insui'ed. Tliis is the law which has been laid down m Skmidia, Sohan Lal Passi aiid Kainla cases. We are in full agreement with fhe views expressed fherem and see no reason to take a dUTerent view." 8. Iu the Ughl of thc above judgixieut, if we exauuue thc facts of tlie present case, it is evident fhat the owner of fhe Vt:hlcle did nof appear ia the witaess box and only filed joint written stateiiient ia which, he has stated fhat fhe driver was havmg valid aad effectlve drivmg licence at fhe tlme of accideiit. Further, fhere is 110 stateiiient fTOisai fh.e side of fhe Iiisurance Com.paay to fhe effect fhat despite having kiiowledge that the licence was fake, fhe owner/iasured permitted him to drive ftie vehicle. In the absence of such statement from flie side of Iiism'aiice Compaiiy, we are of the opiiiion ftiat tiie facts liave not been determined properly by the Claims Tribunal. The Claims Tribunal should have conducted a fliorougti enquiiy as provided luider Sections 168 aad 169 of the Act aiid Rule 226 of the C.G. Motor Vehicle Rules, ^ y ^. •^WHW^ 1994 and also should have also foUowed tlie directions issued by Uie HonT^le Apex Com't m para 11 of its decision ui Uie uiatter of Rcykuyncir ws^ Ajay Kufnevr & anether; reported in 2010 (12) SCALB, wliich is quoted as mider: "................................Sections 168 and 169 of the Act make it evident tiiat flie Tribunal does not function as a neuti'al umpii'e as iii a civil suit, but as aii active explorer and seeker of trutli who is iTequired to liold an enquiry mto tlie clalm? for determiiiiag fhe <just compensaUon'. The Tribunal should therefore take an active role to asceilam tlie true and con-ect position so ftiat it caii assess tlie 'just compensation........^ 9. Hon^ble tlie Apex Court Judgment m tiie matter of Natianal Insurance €0. Ltd^ v. Swaran Singh and othersf reported ui Am 2004 SC 1531 ui pai'a 92 lias held as uiider: "92. It niay be tt'ue as has been contended on behalf of flie petitioner tiiat a fake or foi^ed Ucence is as good as no licence but tlie question herem, as notlced herelnbefore, Is whether the insurer must prove fliat tlie ownier was guilty of the wilful breach of the conditions of the insui'ance policy or the conti'act of insureuice. In Lehi'u case the matter .has been considered in some detaU. We ai'e m genei'al agi'eement witii the appi'oach of tlie Bench but we iiitend to pomt out tliat fhe obseivations made fherein must be uiiderstood to have been made ui the light of flie requu'ements of fhe law m terms whereof tlie iiisurer is to establish wilful 1 j '•«.,..,x.'" breach on fhe part of the itisui^ed aiid not for tiie pui'pose of its disentitlement fi'om ralslng aiiy defence or for the owners to be absolved from any Uability whatsoever. We would be dealliig ui some detaU with this aspect of tlie matter a UtUe later." 10. In view of fbe foregokig, we set aside tiie impugiied award and remit tlie matters back to tlie Clauxis Tribunal to decide-flie matter after determmation of facts in fhe liglit of tiie obsei-vations made hereinabove. If necessary, the Tribunal shall summoii tiie owner of the vehicle, flie record of tlie pollce as well as the record from fhe uisurance compaiiy to ascertain whether ttie owner of fhe veliicle was aware or he had noticed fhat tlie drivmg Ucence was fake aiid stlll he permitted tlie driver to drive the veliicle. Fuitlier, whetlier the owner of tlie veliicle had satisfied liimself tiiat fhe driving licence was a genuiae aiid the driver was di'ivmg fhe veliicle competeiitly and whetlier tlie licence which was haviiig by ftie diiver looks as genuiiie. However, none of flie parties shall be aflowed to amend tiie pleadings aiid the matter shall be considered after aUowiiig fhe parties to adduce fmther evidence only or filiiig the documents. 11. The parties shall appear before tiie Claims Tribunal on 25-07-2011. 12. The records of the Claims Tribuiial shaU be sent back witiiout delay. Kvr 13. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge