s m THE HIGH COURT OF CMMATriSGARH BILASjZlJR Mz'sc. Appeal (C) No. lll^_/2007"'^^y^ Shankar Prasad Singh/S/o Bagar Sai sm3X^.T°d ^^^^^! ®®<?^8 ^.^ ,? r,^s> ^ g1<B , e <? .9^ 9 3 ei.|[lS^, s^^: r^s Appellant/ NohApplicant Gond, Vill. Podi Bachra/ PS Khadgawa, Distt. Korea (CG) VERSUS Respondents/ 1. The Oriental Insurance Co^ Itd.,, thro' Applicants <7 Branch Manager, Branch Offfice, & Non Manendragarh Road, Ambedkar Applicants Square, Ambikapur, Distt. Surguja 2; Rajat Kumar S/o Late Babia Ram ^>, Smt. Jungo Bai w/o Rajat Kumar ^ L'Enos S/o Late Sanjivan, 5 Yrs. ,J2)-^"^^ No. 4 minor through No. 2, 2 to 4 R/o "" Vill. Kodagi, PS Khadgawa, Distt. Korea @ Chandraprakash, S/o Hiradhan Panika, Vill. Podi Bachra/PS Khadgawa, Distt. Korea ^/ Chandu ^' ADpeal U/S 173 ofthe Mofor VehiclesAct 1988. Inipiismn^ Award of Rs. 2MOOO/- b\i II MACr- ^,^ Manendragarh Korea in CC -'W97 d!_24/Q8/Q7 "C F-1 $-/- '\, HIGH COURT OF CHHATTISGARH AT BILASPUR Mis. ADpeal^To. 1112 OF 2007 APPELLANT R]^PONDENTS Shankar Prasad Stngh Versus The Oriental Insurance Co. Ltd. and others SINGLB BENCH:- Hon. Shri N.K. Agarwal, J PRBSENT :- Shri Raja Sharma, Advocate, for the appellant. Shri Sudhir Agi^wal, Advocate for respondent No, 1 Shri J.A. Lohani, Advocate, for respondenta No. 2 to 5. ORAL ORDBR (14-1-2010) 1. The instant appeal arises from the award dated 24-8-2007 passed by IInd Additional Motor Accident Claims Tribunal (FTC), Manendragarh, Koria in Claim Case No. 44/2007 awarduig Rs. 2,40,000/- tn favour of the claimants and as against the appeUant and respondent No. 5 exonerating respondent No. 1, insurance company fi'om its liabUity to pay compensation to the claimants. 2. Facts of the case, in brief, are fhat on 29-12-2004 one Sanjeevan Kumar (since deceased) while sitting in the tractor and torolley owned by fhe appeUant and bemg driven by respondent No. 5 met with an accident and succumbed to the injuries sustained in the said accident. 3. By filing an application under Section 166 of fhe Motor Vehicles Act, 1938, the claimants, unfortunate parents and minor son of the deceased, clalmed Rs. 15,00,000/- as compensation against driver, owner and insurance company of the said tractor and trolley. 4. The respondent No. 5 i.e. driver offhe said tractor and trolley remained exparte before fhe Tribunal. The said claim was opposed by the contesting respondents. The msurance company took a specific plea in its written statement tfeiat the said vehicle was being plied in breach of conditions of the policy; the driver of the tractor and trolley was not holdiag effective drlving lieence at the time of accident; fhe tractor and trolley were beine used for non-assricultUTal om-ooses and, therefore, fhe insurance company is not liable to indemnify fhe insured and pay compensation to the claimants. However, the policy of insurance effectiye on the date of accident was filed; tiie msurance company has admitted the factum of insiirance in para 4 of its reply. 5. Leamed Tribunal on a close scrutiny of the evidence led, material placed and submissions made by the parties awarded Rs. 2,40,000/- as compensation against the owner and fhe driver of the vehicle exonerating fhe insurance company from its liability to pay compensation on the ground ftiat fhe vehicle was not insured at fhe thne of aceident 6. Shri Raja Sharma, leamed eounsel for ftie appeUant would submit that tfae liability has been fastened upon the appeUant only on fhe basls fhat the said vehicle was not insured at fhe tune of accident, which is factually incorrect, therefore, the award to fhat extent passed against the appellant exonerating the insurance company to pay compensation, deserved to be set aside. 7. Shri Sudhir Agrawal, leamed counsel appearing for fhe insiirance company woiild submit that alfhough the vehicle was insured on fhe date of accident, but leanied Tribunal has also not considered the defence taken by fhe insiirance company in fhe case. 8. Per contra, Shn J.A. Lohani, learned counsel appearmg for the respondents No. 2 to 5/claunants would submit fhat the other finding regarding negligence and quantum recorded by the Tribunal camiot be faulted wifh and at least tiie same deserves to be upheld. 9. I have heard leamed counsel for fhe parties and penised fhe record and fhe award impugned and exaaiined all the pleadin^ and documents produced before ftie Tribunal. So far as fhe findings recorded by leamed Tribunal with rcspect to negligence of offending vehicle and fhe aanount of compensation payable to fhe claimants are concemed, fhey are not seriously disputed by fhe appellant. 10. After exainining the pleadings and documents produced before the leamed Tribunal; fhere is no iota of x'^'^.' ^" l^ •&^^^ ^^- doubt in my mind fhat fhe vehicle was insured on fhe date of accident by fhe respondent No. 1 / insurance company and leamed Tribunal has erred in holding fhe said tractor and trolley uninsured and, therefore, fhe finding in the case to that extent deseryes to be set aside. However, leamed Tribunal has also not considered the defence taken by fhe insurance company before fhe Tribunal. The issue No. 4 framed by the leamed Tribunal UKya Anavedak No. 1 and 2 ne beemapolicy ki sharton ka ullanghankiya hai?w therefore needs reconsideratiion afresh. 11. Accordingly fhe unpugned award dated 24-8-2007 is set aside and fhe matter is remitted back to the Tribunal for deciding Issue No. 4 as above afresh after considermg the rival submissions wifh regard to Uability of insurance conipany and fhereafter to pass the award in accordaace with law on its own merit as early as possible preferably within a period of 4 monfhs from fhe date of receipt of certified copy ofthis order. 12. Parties are pennitted to adduce additional evidences, if so advised wifh regard to Issue No. 4. 13. The observations, if any, made hereinabove, shall not be construed as opinion offhis Ctourt on merit. 14. The appeal is allowed to the above extent. No order as to casts. 15. The Registiy is dtrected to send back fhe record, requisitioned from the Tribunal, forthwitli with a direction to the Tribunal to re-register the case in its ori^nal number in the register of claim cases. 16. If any part of compensation amount is deposited by the appellaat wifh the Tribunal and not disbursed to the claimants, fhen it shall be kept in the fonn of Fixed Deposit with any nationalized bank for a period of one year renewable frdm time to time. _^_ Sd/- N.K. Agarwal Judge