^ IN THE HON'BLE MGH GQURT OF CHHATTISGARH AT BILASPUR Misc. Appeal {C} No. ^r^c) /2010 APPELLANT ^ T Ivature Generali India Insurance Company Limlted, Shop No. 1, Near Dhuppar Petrol Pump, G.E. Road, Ralpur, Tahsil & Distrlct ((;.G.) (INSURER) YERSUS RESPONDENTS ^ l.°^ 4y^ ^y '^^'..-f' i^-" ^ Ram Sevak Baghel S/o Late Jugru Ram Baghel, aged about 45 years, R/o VUlage Narra, Post Barhi, Tahsll & Thana Balod, Dlstrict Durg (C.G.) (CLAIMANT) Rajkumar Sahu S/o Chhannulal Sahu, aged about 32 years R/o Village Narra, Post Barhl', Tahsll & l&ana Balod, Dlstrict Durg (C.G.) (S.aiVER) Jicendra Kumar Sahu S/o CSihannulal Sahu, aged about 40 years R/o Village Narra, Post Barhl, ^ ^Aisil & Thana Balod, District 0:.G.) (OWNER1 -4) Bita\;;m Bai aged about 35 years Caste- Gada W/o Not Known, R/o VUlage Onta!<onha, Post Gurur, Thana & Tahsil Gunir, Distnct Durg (C.G.) 3) 'S'Sii L730 MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AME NDED BY ACT OF 1994 i ^' •<^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal (C.l No.339 of 2010 Appellant versus Respondents Future Generali India Insurance Company Limited Ram Sevak Baghel and others Present: Shri S.S.Rajput, counsel for the appellant. Shri V.K.Sahu, counsel for respondent No.1. Shri B.P.Singh, counsel for respondents No.2 and 3. Notice to respondent No.4 is already exempted. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORAL ORDER (Passed on 4th October, 2010) Heard. 2. The insurer has preferred this appeal under Section 173 of the Motor Vehictes Act, 1988 (henceforth 'the Act') calling in question the award of compensation of Rs.1,26,000/- in favour of respondent No.1. 3. The only ground raised in this appeal is that for the mistake of the counsel the insurance company inadvertently closed its evidence before the Claims Tribunal when the matter was fixed for recording evidence ofthe parties on 9-12-2009, however,when the matterwas fixed for passing the award on 11-12-2009, an application under Section 151 of the Code of Civil Procedure, 1908 (henceforth 'the Code') was moved seeking permission to adduce evidence in ^'ft8;?^^^I^^^^W^?r;;'^s^ ;7/^;-^ •^€. .,/s rebuttal raising the groundof breach of policy as the driver was not having valid and effective driving licence. 4. Shri S.S.Rajput, learned counsel appearing for the appellant would submit that the driving licence was issued in the name of driver/respondent No.2 Rajkumar Sahu, son of Chhannulal Sahu, whereas in the certificate issued by the concerned R.T.O., it was certified that the office record of the concerned driving licence number shows that the driving licence was issued in the name of one RajkumarNishad, son of Punitram Nishad and that this fact was also raised in the written statement filed by the insurance company. Learned counsel would further submit that the insurance company had a valid defence in terms of Section 149 of the Act, however, the counsel closed the evidence by inadvertence. 5. Shri V.K.Sahu, learned counsel appearing for respondent No.1 and Shri B.P.Singh, learned counsel appearing for respondents No.2 and 3 would argue that the appeal has no substance because the prayer made under Section 151 of the Code before the Claims Tribunal was rejected after due consideration. 6. Record of the Claims Tribunal is available. This Court perused the said record containing the driving licence submitted by the driver/respondent No.2 Rajkumar Sahu and the certificate issued by the concerned R.T.O. On perusal of the document, the argument raised by learned counsel for the appellant appears to be convincing. The discrepancy in the driving licence and the certificate has been raised/pleaded in the written statement filed by the ^, /.•^) appellant before the Claims Tribunal, therefore, it cannot be said that no ground was available to the insurer/appellant in terms of Section 149oftheAct. 7. From the order-sheet, it would reflect that the counsel appearing for the insurance company closed the evidence on 9-12- 2009, however, the application under Section 151 of the Code was moved on the very next day of hearing, i.e., 11-12-2009. Thus, considering the totality of the circumstances, it appears that the Claims Tribunal should have allowed the appellant's prayer under Section 151 of the Code permitting the insurance company to lead evidence with regard to the validity of the driving licence by examining the witnesses. Since the prayer has been disallowed by the Claims Tribunal, this Court is of the opinion that the matter requires to be remitted back to the Claims. Tribunal for decision afresh by giving an opportunity to the insurance company to adduce evidence in support of the defence available to the insurance company under law. 8. In the result, the miscellaneous appeal is allowed. The impugned award is set aside and thematter is remitted back to the Claims Tribunal for decision afresh after giving opportunity to the insurance company to lead evidence. The amount deposited by the insurance company with this appeal shallremain in deposit before the Claims Tribunal and shall be subject to final decision by the Claims Tribunal. It is directed that the Claims Tribunal shall do well to dispose of the matter within a period of three months from the 'date of appearance of the parties. •^'•<"^ ^' !: ^ •*1-J '^ i 'J^ ! /^ 9. The parties shall appear before the Claims Tribunal on 8th November, 2010. Record of the Claims Tribunal be sent back fbrthwith. Sd//- Prashant Kumar Mishra Judge ^ Gopal