INTHE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT /' M.A.(C)No.- u o^/2009 THE ORIEI LIMITED, DIVISIONAL ORIENTAL LIMITED, KUTCHERY ^g^n^^ ^ ^.t^^ i.S ft-';;:.^" " ^ \^^ i'\ FAL INSURANCE COMPANY THROUGH SHRIMAN MANAGER, THE INSURANCE COMPANY MADINA MANZIL, CHOWK, JAIL ROAD, RAIPUR, TAHSIL & DISTRICT - RAIPUR (C.G.) (INSURER OF OFFENDING VEHICLE BUS) (INSURANCE PERIOD UP TO 30/11/06 TO 29/11/07) Vrs. RESPQNDENTS/CLAIMANTS :- ^ SMT. NASIBUN BEGUM WIDOW OF MOHD. YASIN QUERESI, AGE ABOUT 43 YRS., MOBIN QUERESI S/0 MOHD. YASIN QUERESI, AGE 25 YRS., KU. TABSSUM D/0 MOHD. YASIN QUERESI, AGE 23 YRS., ^ ^ L^ ^ MOHSIN S/0 MOHD. YASIN QUERESI, ^ f AGE21YRS., ALL RESIDENT OF RANI DURGAWATI WARD, BALODABAZAR, TAH. - BALODABAZAR, DISTRICT - RAIPUR (C.G.) RESPONDENTS/NON-APPLICANTS:- 5., ^" 6. SUKHRAM DHIMAR S/0 JANAKRAM DHIMAR, AGE 42 YRS., RESIDENT OF SUBHASH WARD, BHATAPARA, TAHSIL - BHATAPARA, DISTRICT - RAIPUR (C.G.) (VEHICLE DRIVER) (BUS NUMBER- C.G. 10/Z.A.-0411) M/s. MAHADEO TRANSPORT SERVICE, PROPRIETOR MOHD. HASAN KHAN S/0 ALI AHMAD KHAN, RESIDENT BUS STAND, BILASPUR TAHSIL & DISTRICT - BILASPUR (C.G.) (REGISTERED OWNER OF VEHICLE BUS ) ..2.. •^ --.'l APPEAL UNDER SECTIQN 173 OF MOTOR VEmCLE ACT 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR D8V8SION BENCK: HON'BLE ftm. J.M.QUDDUSI & HON'BLE MR. PRASHANT KUIVIAR MISHRA, JJ. Appeltant Resoondents JVI.A. fcl No.403/2009 The Oriental Insurance Company Ltd. Vs Smt. Nasibun Begum & others Present: Mr. Sudhir Agar-wai, Advocateforthe appellant. Mr. Prakash Mishra, Advocate for respondents No.1 to 4. None for the respondents No.5 8s 6 though sen/ed. ORDER (Orall (7th January, 2011) I.IVI. Quddusi. J; ) 1. Heard. 2. The instant appeal una'er Section 173 ofthe Motor Vehicles Act, 1988 (for short 'the Act') is filed by the appellant-insurance Company against the av^ird dated 16.09.2008 passed by the iearned Additiona! Motor Accident CIaims Tribunal, Bhatapara, District Raipur (CG) (for short !the Tribunal') in Claim Case No.05/2008 allowing the claim application of the claimants, awarding a compensation of Rs.9,29.500/- to the claimants and fastening liability on the appellant-lnsurance Company to satisly the award. 3. At the outset, learned counsel for the appellant has submitted that he would not like to argue the case on merits at thjs stage and for the present he is only challenging the order dated 1.9.2008 by which application for grant of permission under Section 170 oftheAct has been rejected. 4. Facts ofthe case, in brief, are that on 15.10.2007 at about 2.30 p.m. Mohammed Yasim Qureshi (since deceased) was going towards Baloda Bazar from Bhatapara in the unnumbered motor cyde of his nephew namely Wahid Qureshi. The said motorcyde was being driven by said Wahid Qureshi and the said Mohammed Yasim Qureshi was travelling as pillion rider, On the way, a bus coming from back sicje, which was being driven by its driver in a rash and negiigent manner, dashed the motorcycle as a result said Mohammed Yasim sustained injuries on his head, his brain material came out and he died on the spot. Matterwas reportedto the Police Station Bhatarpara (Rural), District Raipur (CG). The claimants/ respondents No.1 to 4 have claimed compensation on the ground that they were dependent on the deceased, who was the sole earning member in family, and due to his death, they have suffered loss of income 5. Non-applicant No.1 did not fiie his written statement. Non-appljcant No.2 has filed his written statement denying the averments made in the claim petition and in -z- additional submissions averred that at the relevant time the vehicle was insured with the appellant-lnsurance Company and therefore, compensation, if any, awarded to the claimants, then the same is payable bythe insurance Company. 6. Non-applicant No.3-lnsurance Company also filed its written statement and in which it has been mentioned that the incident had taken place due to negiigence ofthe deceased himself, he was not having valid and effective driving licence at the time ofincident and therefore, the msurance company is not liable to pay the amount ofcompensation. 7. On the pleadings of the parties, the Tribunal framed as many as seven issues and after hearing the parties in the matter and considering the material available on record arrived at a conclusion that the claimants are entitled for compensation and accorciingly, allowed the claim petition andawarded a sum of Rs.9,,29,500/- as compensation. 8. Learned counsel for the appellant -Insurance Company has submitted that the appellant was deprived of producing evidence to the effect that the driver of offending vehicle was not having valid & effective driving licence. He has further submitted that at one hand the Tribunal has allowed to cross-examine the witness but at the same time prevented the appellant from adducing evidence, espedally to the effect that the driver of the vehicle was not having valid and effective iicence and due to which the Tribunal has shjfted the liabiiity to the appeilant - fnsurance Company wthout any case. 9. On the other hand, learned counsel for the respondent Nos.1 to 4 supporting the impugned order has submitted that the Tribunal has rightly rejected the application ofthe appellant. 10. We have heard learned counsel for the parties and perused the records ofthe case. 11-Perusal ofthe order dated 1.9.2008 rejecting the apptication fiiled under Section 170 ofthe Act reveals that the Tribunal has observed in the said order that driver & owner ofthe vehicie are contesting the matter seriously, but we have found that driver of the vehicie in question even did not file written statement. Though owner of the vehicle has filed his written statement mtet-aiia stating that at the time of accident the driver was having valid and effective driving licence and in case the Tribunai reached to the conclusion that the claimants are entitled for compensation, then the insurance Company may be held liable for the same, as forthe relevant period thevehide was insured with the Insurance Company. 12.1n the above situation, we find force in the argument of learned counsel for the appellant that appiication ofthe appellant filed under Section 170 oftheAct was wrongly rejected as the Insurance Company should have been aranted ^^, 1 J Y?y^ -3- opportunity to contest the case to show that the insurance company is not iiable to paythe compensation. 13. In the result, the appeal is ailowed in part, order dated 01.09.2008 passed by the Tribunal in Claim Case No.05/2008 rejecting the application of the appellant Insurance Company filed under Section 170 ofthe Act is hereby set aside and as a consequence the impugned award is also set aside and the matter is remitted back to the Tribunal for decision afresh after granting permission to the appellant- insurance Companyto contestthe claim case on all the available grounds. 14-Needless to mention that the claim case shall be decided by the Tribunal after providing opportunity to the parties to adduce further evidence, if any, amend the pleadings, fiie documents or verify the documents aiready filed. It is also directed that the amount, v^iich has already been deposited by the appellant-lnsurance Company and yet not disbursed to the claimants, shall not be either refunded to the appellant-lnsurance Company or disbursed to the claimants till the decision is taken afresh. The parties shall appear before the Tribunal on 10.2.2011 for expeditious disposal of the claim case. No order as to cosis. iS.Certified copy as per rules. Roshan/- Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge