^ o IN THE HIGH COURT JUDICATURE AT BILASPUR Misc. ADpeal [C] No. ^ I '?-' OF APPELLANT INSURER^s^.-'' ^•^^^ ^.^•\"^^:^'sfH°"*" ;:^";'^^v s.yi^" RESPONDENTS CLAIMANTS (Wife) Son of Deceased OWNER Bajaj Allianz Insurance Company Limited, through Branch Manager, Shivmohan Bhawan, Vidhansabha Marg, Pandri, Raipur (C.G.) briver Versus 1, c, Smt. Kunti Bai Chouhan W/o Late f^l Late Bhagirati Chouhan Aged about 35 years. 2..^ Minor Rajiv Ratan Chouhan S/o Late Bhagirati Chouhan Aged about 17 years. 3.9^ Minor Sanjiv Vumar Chouhan S/o Late Bhagirati Chouhan Aged about 14 years. Respondent no. 2 and 3 are through there guardian Smt. Kunti Bai Chouhan W/o Late Late Bhagirati Chouhan. A\\ are R/o Village Raitway Station Kotarliya Viltage Panchayat - Patrapli East P.S. Chakrdhar Nagar Th. + District Raigarh C.G. 4. ) Ompraksh Agarwal S/o Not Known ^ Age6 about 40 years occupation - transporting R/o Sinpal STD PCO Shyam Talkies gate Th+ bistrict Raigarh C.G. 5 Vipin Singh S/o Shivnarayan Singh L_ Aged about 25 years, Occupation - driver R/o Village Jaika P.S. Titauthu District Aourangabad (Bihar) Presently R/o Gorkha Patrapali Raigarh C.G. APPEAL U/S 173 OF THE MOTOR VEHICLES ACT AGAINST THE AWARD/OROER DATEb 31.01.2009 PASSEb BY. THE 4th UPPER' MOTOR ACCIDENT CLAIMS TRIBUNAL (FTC) RAIGARH (C.G.) PRESIDEb OVER BY SHRI G.R. SANDE IN C.T. N0.14/20087 '^ ,1< HI6H COURT OF CHHATTIS^RH ^T 8IUSPUR HONSBLE MR. I.M.QUDDUSI & Appeilc&nts Respondents M,A. (FLNo.527/2009 Kunti Bai Chouhan & others Vs Omprakosh Aaarwa & others Ri ^ ^ppellant Rtspondents M.A. (O No.917/2009 Bajaj Allionz Insurance Co. Ltd,, vs Smt. Kunti Bai Chouhan <&. others Present: Mr. P.P. Sahu, Advoco.re for the appelbnTs in M.A. (C) No.527/09 and respondent Nos. 1 to 3 in M.A. (C) No.917/09. Mr, Abhishek Sinha, Advocate for the appe!!c^t in M.A. (C) No,917/09 and respondent No.3in M.A. (C) No.527/09. Mr. S*K. Tlwari, Advocate for the respondent-Omprakash Agarwal in both the appeois, ORDER iQran (23rd February, 2011) I.M. Quddusi< J: 1. Heard. 2. M.A. (C) No.527/09 fiied by the appellant-cJaimants and M.A. (C) No.917/09 fiied by the appeJIont-Insurance Company are beinq disposed of by ttiis common order as both these appeals are arisinq out of the award dated 31-1-2009 by learned 4 Adclitiona.l Motor A.ccident Claims Trlbuna!, (FTC) Rajgarh in Claim Co.se. No.14/2008 awardfng a sum of Rs.8,16,464/- and fastening tiability on the insurance company to pay compensation. 3. Facts of fhe case, in brief, are that on 5.12.2007 at about 7.45 p.m deceased Bhagiraths Chouhan along with one Anil Kumar was returnina to his house from VilJage Kaya on his motorcycle. W'hen they reached near main roads of VilSage Samaruma, at that time driver of Hyva Dumper bearing registration number C&07auC<a6805 all of sudden QppJied brakes of the vehicle due to which the motorcycle of said Bhagirathi collided with the said |K^. vehicle and as a result he sustained grievous injuries. He was taken to fiovernment Hospital, ^harghoda for treatment where he died during treatment. The ciaimants, who are wid'ow, <& children of the deceased, have cbimed compensation to the tune of fts,47,85,256/- under various heads. 4, The CJaims Tribunal, after considering the issues framed by it and also evidence brought on record by the parties, ailowed the claim appiication and awarded2 a compensation of Rs.846,464/" along with interest © 7,5% p.a and saddled the insurance company with 1tie liability of satisfying the award. 5. We have heard iearned counsel for the parties, We have also perused the record's of the Claims Tribunal. 6, The appeitants-ciaimants have filed the appeal for enhancement of compensation inter1 alia on the ground that the Claims Tribunal has wrongly reached to the conclusion that accident was the result of negligence on the part of the deceased aiso. The compensation awarded by the Ciaims Tribunal is too meager in view of the fact the deceased, who was 39 years of age, was the qovernment employee, 7. On the other hand, the appsliant-lnsurance Company has assailed the impuqned order on the qround that the Claims Tribunal has wrongly held that the driyer of the offending vehicle as also the deceased were responsible for the accident, The offending vehicle was plied in breach of insurance policy as the driver of the vehicle was not having effective and vafjd driying licence. He has further submitted that the insurance company could not get the opportunity to adduce any eyidence in connection wi1+i the drjving licence as evidence of the insurance company has been closed withsn one day only, whereas verification of driying licence took some time^ 8. We have heard learned counsel for the parties and aiso perused the records of the Claims Tribunal ond the jmpugned award, 9. On careful exammation of the record, we found that though The plea regarding genuineness of the driving Jicence of the offending yehjcle was taken in the written statement by the appellant-Insurance Compdny but no eyidence reqardina genuineness of driying licence or engagement of the f •^^.^ "s..: -.-?3*^< ^% driver by the owner has been adduced and therefore, we are of ooinion that one more opportunity should be giyen to the parties to lead evidence in support of their respectiye case and for this view we are fortified with the decision of the Hon'ble Apex Court in the matter of Natsonal Insue^snce Co. Ltd. Vs. Swam Slwh snd others 2004 SCC 2y7. wherein the Honibie Apex Court in Para-92 has held as under, ~'92<It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no iicence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was quilty of the willfui breach of the conditions of the insurance policy or the contract of insurance, In Lehru the matter has been considered in some detail, We are in qeneral aqreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish willful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liGbilif^ whatsoever, We would be deoling in some detail with this aspect of the matter a Jitt-ie Jater.it 10. Accordinafy, we allow M.A. (C) No,917/09 in part, set aside the award dated 31.1-2009 passed by the learned 4th Additional Motor Accident Claims Tribunal, (FTC) Raigarh in Claim Case No.14/2008 and remit the matfer back to the Claims Tribunal for decision afresh. The Trjbunal shall provide opportunity to -ttie parties to adduce fur-ther evidence, if any,and QJSO allow the parties to amend the pleadsngs or file documents or verify the documents already filed. Needless to mention that amount, which has already been deposited by the Insurance Company and yet not disbursed3 to the ctaimants, shalsl not be either refunded to 1+ie appellant or disbursed to the claimont tilt the decision is taken afresh by the Claims Tribunal. ',^'i"^^^. ./''^-!~-w!%. ^ X '-i "t, ^- '^.^ Roshan/- K 11, Since we have aJready set aside the impugned award, the appeal fiied by the claimants for enhancement bearmg M.A. (C) No.527/09 has become snfructuous and accordingiy, it is disposed of as haying become infructuous, Mowever, it is open for the claimants to rai^ all the grounds, as raised by them in this appeal, before the CIaims Tribunal in support of their piea that they are entitled for more compensation than fixed earlier, 12< The Registry is directed to transmit the record of the Claims Tribunal concerned without further delay. Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge