IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT M.A. (C) No.- g ^lt^ ^ THE ORIENTAL INSURANCE COMPANY LIMITED, MANAGER, INSURANCE THROUGH THE COMPANY BRANCH ORIENTAL LIMITED, BRANCH OFFICE, AMBIKAPUR, DISTRICT - SARGUJA C.G. Vrs. RESPONDENTS/CLAIMANTS ^-- ^ :-1. BANSPATI DEVI WIDOW OF NAVAL ^ ^ SAI, AGE ABOUT 25 YRS., OCCUPATION - HOUSEWIFE, \ 2. DHIRENDRA KUMAR S/0 NAVAL SAI, ^ \^ o swi • ,0^ ^'x? AGE ABOUT 2 YRS, MINOR THROUGH GUARDIAN BADE-PITA, KUMAR SAI S/0 KALSAI AGE ABOUT 30 YRS., '--•"""%^A .^ BHUNESHWARI DHANMET D/0 NAVAL SAI AGE 10 MONTHS MINOR THROUGH GUARDIAN BADE-PITA, KUMAR SAI S/0 KALSAI AGE ABOUT 30 YRS., 4. KUMAR SAI S/0 KALSAI AGE ABOUT / 30 YRS., OCCUPATION - SERVICE, ALL RESIDENT OF VILLAGE - KUNJNAGAR, THANA- JAINAGAR, TAHSIL - SURAJPUR, DISTT.- SARGUJA C.G. RESPONDENTS/NON-APPLICANTS :- 5. BHUNESHWAR PRASAD S/0 ^ TILBIKRAM RAM RAJWAR, AGE ABOUT 31 YRS.,OCCUPATION- DRIVER, RESIDENT OF HARRA TIKARA, THANA - JAINAGAR, TAHSIL- SURAJPUR, DISTRICT - SARGUJA C.G ^^ ..2.. \: r ..2.. s PRAKASH CHANDRA PUSTY S/0 PURNACHAND PUSTY AGE ABOUT 38 YRS.,VEHICLE OWNER, MINIBUS VEHICLE N0.- C.G. 15A/1590, RESIDENT OF VILLAGE SHIVNANDANPUR, THANA BISHRAMPUR, TAHSIL - SURAJPUR, DISTRICT - SARGUJA C.G. MANAGER, GYANODAY MOOK BADH1R VIDYALAY , BISHRAMPUR, SARGUJA C.G. GOVERNMENT OF CHHATTISGARH THROUGH COLLECTOR, SARGUJA, AMBIKAPUR C.G. APPEAL UNDER SECTION F73 OF MOTOR VEHICLE ACT 1988 APPEAL VALUED Rs. 12',90,880/- ( APPEAL BY INSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNAL Rs. 35,00,000/- AWARDED AMOUNT BY TRIBUNAL Rs. 12,90,880/- (^^ HIGH COURT OF CHHATTISGARH. BILASPUR DB: HON'BLE I. M. QUDDUSI & HON'BLE G. MIBHAJUDDIN, JJ M.A(Cl.No.650/2008 APPELLANT: RESSPONDENTS: The Oriental Insuraace Coinpaay Ltd., Vs. Baaaspati Devi and others 's^' APPELLANT: RESPONDBNTS: M.AfCl.No.SOl /2008 The Oriental Insurance Company Ltd., Vs. Devinuiua and others MISC. APPBALS UNDBR SECTION 173 OP THE MOTOR VEHJCT-ES ACT, 1988 Appearance: Mr. Sudhir Agrawal counsel for fhe appeliaiit(s) in bofh Uie appeals. Mr. Ataau Ghosb, counsel for respondents 1 to 3 ia M.A(C).No. 650/2008. Miss. Shamula Siaghai aad Mr. Saajay Agrawal, couiisel for respondent no.7 m M.A.C. No. 650/2008. Ms. Neba Verma counsel for respondents 1 to 4 in M.A.(C). No.801/2008. Mr. Rajendra Tripathi, Panel Lawyer, appears for the Govt, of Clihattisgarh. ORAL ORDER (1S.QS.2011) As oer I.M. OUDDUSI. J, ;\•V \ TUese two appeals have been filed by the Insuraace Coinpaay agamst the impugned award 23.01.2008 passed by the II Addl. Motor Accident Clahns Tribunal (F.T.C), Szu-ajpur, Distt. V; '% •••^., .^•^*. 'EBsfliW ^z 3. ^y •Y - Sarguja (C.G), m claim Case No. 123/2007 (Devmunia and oftiers -vs- The Oriental Insuiance Conipariy Ltd) aad Claiin. Case No. 124/2007 (Banaspati Devi aad others -vs- Bhuneshwar Prasad and ofhers) so far as it relates to fasteniug ofliability to pay conipensation upon it. M.A(C).No.650/2008 relates to Claim Case No,124/2007 aad M.A(C). No. 801/2008 .relates to Claim Case No. 123/2007. Siace both fhese appeals arise out of fhe same accident, they are being disposed ofby ttiis common order. Brief facts of the case as per the version of the claunaats are fhat on 17.04.2004 at about 6.30 a.m, deceased Naval Sai & Devnath were conung fi-om Chiiipara, Rampur by inotorcycle beariag Regn.no.C.G.15-C/8329. Deceased Naval Sai was riding his inotorcycle whereas deceased Devnafh. was sittmg as pillion rider. On the way at about 6.30 a.ni., near Keshav Dhaba, Madanpur, a Miai Bus bearfng Regn.no.C.G. 15- A/1590, owned by Gyanoday Deaf and Dumb School, BishrampuT aad atlegedly driven by Bhuaeshwar Prasad iu rash and negUgeut laaaner dashed fhe inotorcycle, as a resiilt ofwhich, the driver aad piUion rider ofthe niotorcycle died on fhe spot. The claimaats of fhe respective deceased persons have filed separate claim petitions u/s 166 of the Motor Vehicles Act, 1988 for fhe award ofcompensations. Leamed Clauns Tribunal has held that fhe Minibus bearmg Regn.No.C.G.15-A/1590 which was beiag driven by its driver in. a rash and negligent m.axuier dashed the luotorcycle, as a result of which, botti the occupauts of fhe inotorcycle Nawal ^. 'l :5i-^.Sffi'\ ,5 s"~^" , --^'^••is.y,, ^s Sai aud Devnattt died; ttiere was no contributoiy negUgence on fhe part of fhe driver of the inotorcycle. Learaed counsel for the appeUant(s) Shri Sudhir Agrawal has subinitted fhat fhe driver of the raotor vehicle was not haviag vaUd aad effective driving license wbich has been discussed by fhe Tribuiial but the Tribuiial has erred in law in. holdiug that siace fhe driver was having a driving Ucense on which aa endorsement of LMV was raade aad fhough the mini-bus was a coiniuercial vehicle but was an LMV, ftierefore, the driver who was baviug only LMV aufhorization could not drive fhe said inini-bus unless a distinct Ucence is obtained to drive the coaunercial vebicle. 'v x . ' \^ 5. In fh.e inatter of Ortentat Insurance Co. L'M. Vs. Angad Kol & others reported in (2009) 11 SCC 356 fhe HonTile Supreine Court has held fhus: "Alttiough the defioition of 'ligbt motor vehicle' brm.gs wifhiu its urabrage both "transport vehicle" or "oinrdbus"', indisputably, a distin.ctLon between an effecti.ve driving licence graated for transport vehicle and passenger raotor vehicle exists. The distinction between a 'Ught niotor vebicle' and a 'traasport vebicle' is evident. A transport vehicle niay be a l^ht inotor vehicle but for the purpose of drivuig the sarae, a distinct Ucence is required to be obtaiaed. The distinction between a 'traasport vehicle .and a 'passenger vebicle' can. also be noticed froin Section 14 of fhe Act. Section 14(2) provides for duration of a period of three years in case of an. effective driviag Ucence to drive a 'traasport vehicle', whereas iu case of aay ofher Ucence, it inay reiaaui effective for a period of twenly years. Thus, it is evident that.a ti-ansport vehicle inay be a Ught inotor vehicle, but > ^: if '.N.. ^•"•'•..,. ^ X \: for fhe purpose of driviag the same, a distinct licence is required to be obtained..." 6. However, Mr. Saajay Agrawal, learaed counsel appearuig for respondent no.7 ia M.A(C).No. 650/2008 subiaits fhat ia fact the ofFendiag vehicle iu question was requisitioned by fhe Collector for the purpose ofelection aiid fhe accident took place when it was already under the possession aad control of the CoUector. He has placed reliaace on a decision ofthe Supreine Court in. JVattoncl Insureince Co. Ltd. Vs. Deepa Deat eind others (2008) 1 SCC 414, para 10 of fbe said judgment is relevaat here aad quoted below: "10. Parliament eitfaer uuder the 1939 Act or the 1988 Act did not take into consideration. a situation of this nature. No doubt, respondents 3 & 4 contiaued to be the registered owners of the vehicle despite fhe fact that the same was requisitioned by the District Magistrate ia exercise of fhe power coiiferred upon liim uiider fhe Representation of People Act. A vehicle is requisitioned by a statutoiy aufhority, pursuaat to fhe provisions contauied ia astatute. The owner of the vehicle cnnnnt refuse to abide by the order of requisition of vehicle by the Deputy Conunissioner. WhUe the vehicle reinaias under requisition, the owner does not exercise any control thereover. The driver niay stiU be the einployee of ftie owner of fhe vehicle but he has to drwe it as Rer ttie direction of the of&cer of the State, who is put in charge fhereof. Save aad except for legal ownership, for aU. iutent and purport, the registered owner of fhe vehicle loses entire control thereover. He has no sav as to whether the vehicle should be driven at a given poiat of tim.e or nofc He caiuiot ask ftie driver not to drive a vehicle on a bad road. He or the dnver could not possibly say that ftie vehicle would not be driven in the ~ ^night. The purpose of requisition is to use the vehicle. ' \ i ../ -^*..- •V For the period fhe vehicle reiuains under fhe control of fhe State and/or its officers, the owner is only eiitifled to payinent of coiapensation fherefor in tenns ofthe Act but he camiot not (sic) exercise aay control thereupon. In a situation of fhis nature, this Court niust proceed on ttie presumption fhat ParUameiit while enactiitg the 1988 Act did not envisage such a situation. Ifina given situati.au, the stataitoiy definitions contamed ia fhe 1988 Act caruiot be given effect to ia letter aud spirit, fhe same shoiild be understood fix>ni the conmion sense poin.t of view." 7. In view of the above discussion, we hold fhat the driver of fhe vehicle was not haviug valid aad effecti.ve driviag Ucence, therefore, the Insuraace Conipany is liable to be exonerated but for the purpose as to who will pay fhe coinpensation - whether fhe owner of the vehicle or fhe Stete Govemnient/ CoUector who had requisitioned the vehicle aad the accident took place at the time when fhe vehicle was under the possession aud control of fhe GoUector is to be decided by fhe Clairus Tribuoal by conducting an enquiiy aad suminoiung the relevant records fi-oin the Election OfBce/CoUector aad for that purpose fhe inatter is liable to be remitted to the Tribuxial for decisiou afresh. 8. Therefore the appeal is aUowed ui part. The insuian.ee Coinpaay is exonerated froni its liabiUty to pay couipensation. However, the matter is remitted back to the Tribunal to decide ttie responsibiUly to pay coinpensation in light of the observations made hereiuabove. It will be open for the parties Coucemed to raise objection before fh.e Clauns Tribunal on the t[ues1:iQii pf quantuin also. ^' y "Y: ^ 9. Needless to inention that fhe parties shall be aUowed to amend fhe pleadings, adduce further evidence, file docuineats or get ttie dociunents verified etc., aud thereafter fhe Tribunal sball inake the award afresh at fhe earliest. The records of the Tribuiial shaU be sent back without furfher delay. The pardes shaU appear on 22nd Sept. 2011. 10. The auiouiit which has been deposited bv the Insuraiice Coinpaay shaU. be refunded. However, if fhe whole or any part fhereof has already been disbursed, it wiU be open for the AppeUaat to reaUze the saine froni the person whoin the learaed CIaims Tribuiial holds responsible to pay coinpensation i.e., eifher the CoUector or the owner, as the case may be. SA'- I.M.Quddusi Judge Sd/- G.Minhajjudin Judge Rao *.. ~\. x