Allowed

Omprakash Soni and Anr. v. Pranjal Agrawal and Anr.

Chhattisgarh HC14 Sept 2012MAC/359/2011

Case brief

AI extract

What is this about?

In this miscellaneous appeal under the Motor Vehicles Act, the High Court set aside the Tribunal's decision to exonerate the insurance company. The Court held the insurer failed to prove the driver lacked a valid license and found the license ticket forged. Consequently, the insurer was held jointly and severally liable for compensation.

What did the court decide?

The appeal is allowed; the insurance company is held jointly and severally liable for compensation to the claimants.

Omprakash Soni and Anr. Vs Pranjal Agrawal and Anr. — Motor Accident Claims | Chhattisgarh HC (2012)

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Misc. Appeal (C) No. 359 of2011

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APPELLANTS	1. Om Prakash Soni, son of Jaggu Ram Soni, aged about 35 years, resident of village - Rajpur, Police Station and Tahsil - Rajpur, District Surguja (Chhattisgarh) ... Owner
	2. Sanjay Soni @ Guddu, son of Krishna Soni, aged about 30 years, resident of village Sarnadih, Police Station & Tahsil Balrampur, District Surguja (Chhattisgarh) - ... Driver Versus
RESPONDENTS	1. Pranjal Agrawal, aged about 11 years, minor, through his her natural guardian - Suresh Agrawal, son 6f Rameshwar Das Agrawal, residentof Opposite State Bank, Police Station and Tahsil - Rajpur, District Surguja (Chhattisgarh) Claimant
	2. The United India Insurance Co. Bramhapur, Ambikapur, District Surguja (Chhattisgarh) ... Insurer Misc. Appeal (C) No. 409 of2011
APPELLANTS	1. Om Prakash Soni, son of Jaggu Ram Soni, aged about 35 years, resident of village - Rajpur, Police Station and Tahsil - Rajpur, District Surguja (Chhattisgarh) ... Owner
	2. Sanjay Soni @ Guddu, son of Krishna Soni, aged about 30 years, resident of village Sarnadih, Police Station & Tahsil Balrampur, District Surguja (Chhattisgarh) ... Driver Versus
RESPONDENTS	Neha Agrawal, aged about 20 years, occupation- House work, resident of In froht of Bank, Nagar, Police Station and Tahsil - Rajpur, District Surguja (Chhattisgarh)

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The United India Insurance Co. Through its Branch Manager, Bramha Road, Ambikapur, District Surguja (Chhattisgarh) ... Insurer

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MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLEACT.1988

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(SB: Hon'ble Mr. N.K. Aaarwal. J.)

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Present : Shri V.K.Pandey, counsel for the appellants. Shri Sanjay S. Agrawal, counsel for respondent No.2

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ORAL AWARD

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(14.09.2012)

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M.A.(C) No.359 and M.A.(C) No.409 of 2011 are being diSposed by this common award as common questions of facts and law are involved in both the appeals-and ^re arising out of the same accident.

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The facts necessary for disposal of this appeal are as under:

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|»IN»-

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i. On 22-4-2009, the Jeep bearing registration No.C.G. 16/0844 metwith accident. In the said accident, Neha Agrawal, aged about 28 years and Pranjal Agrawal, aged about 11 years got injured.

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Both the above claimahts have filed claim applications under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by them in the motor accident on 22.4.2009.

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The Tribunal, on a close scrutiny of the evidence led, held; the accident had occurred due to rash and negligent driving of Jeep

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ibearing registration No.C.G. 16/0844 by its driver Sanjay Soni @

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Guddu i.e. appellant No.2; the claimants in claim case No. 153/2009 and claim case No. 154/2009 have sustained injuries in the said accident; respondent No.2/United India Insurance Company Limited not liable for payment of compensation as the driver of the offending vehicle was not possessing valid and effective driving licence; assessed and awarded compensation of Rs.69,000/- in claim case ^o. 153/2009 and Rs.1,07,000/- in claim case No. 154/2009 holding the appellants liable for payment of compensation and exonerated respondent No.2/insurance company from its liability to pay compensation.

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Shri V.K.Pandey, learned counsel appearing for the appellants contended: respondent No.2/insurance company did not prove the violation of policy conditions; Pawan Kumar Sahu (N.A.W.1) examined by respondent No.2/insurance company did not bring any register, in which, the record of licence is being kept by the R.T.O. Ambikapur, and therefore, the Tribunal has fallen error in exonerating No.2/insurance company from its liability to pay compensation.

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Per contra, Shri Sanjay S. Agrawal, learned counsel appearing for the respondent No.2/insurance company supported the award impugned and submitted: in the facts and circumstances of the case, the Tribunal has rightly exonerated respondent No.2/insurance company from its liability to pay compensation.

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I have heard learned counsel appearing for the parties and perused^{therecordoftheTribunalincludingawardimpugned.}

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The law is well settled. The burden to prove violation of policy conditions is upon the appellant/insurance company. Three Judges / bench of Supreme Court in case of National Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 has held in para 110

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(iii)& 110 (iv)asunder:

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"(iii) The breach of policy condition -e.g. disqualification of the driver or invalid driving lieence of the driver, as contained in sub-section (2)( a )(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time,, are Aot in themselves defences available to the insurer'against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on thepart of the owner of the vehicle; the burden of proof wherefor'^- would be on them."

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For the reasons best known to the respondent No.2 /Insurance Company, it could neither prove the policy of insurance to prove the violation of policy conditions nor could prove the fact that the driver of the offending vehicle was not possessing valid and effective driving licence at the time of accident by cross-examining f the appellants nor the witness P.K.Sahu (N.A.W.1), examined by y 'respondent No.2/insurance company, could prove the fact that

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appellant No.2 was not possessing valid and effective driving licence and the licence possessed by him was found fake and forged, inasmuch as, the said witness has given statement on the basis of his memory without bringing the register. In the absence whereof, it cannot be said that respondent No.2/insurance company had successfully proved the defence taken by it in the written statement.

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It was for the appellanVinsurance company to prove the defence taken by it in the written statemerit, in which it utterly failed. Therefore, in the light of ratio of law laid down by the Supreme Court in case of National Insurance Co. Ltd. V. Swaran Singh and others (Supra), in my opinion, the Tribunal has committed has fallen in error in exonerating respondent No.2 from its liability of payment of compensation and was .not justified in fastening liability of payment of compensation upon the appellants.

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For the reasons mentioned hereinabove, the appeals are allowed. The respondent No.2/United India Insurance Company Limited is; also held liable jointly and severally along with the appellants for payment of compensation to the claimants. The award is modified to the above extent. Rest of the conditions of the award shall remain intact. The appellants are entitled to recover the .amount from respondent No.2/insurance company, which they deposited before the concerned Tribunal.

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The respondent No.2/United India Insurance Company Limited is granted three months time to deposit the amounts of

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compensation along with interest in both the claim cases, i.e. claim

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case No. 153/2009 and claim case No. 154/2009 before the

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concerned Claims Tribunal.

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No order as to costs.

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Sd/-

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N.K. Agarwal Judge

Omprakash Soni and Anr. v. Pranjal Agrawal and Anr.

Case brief

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Omprakash Soni and Anr. v. Pranjal Agrawal and Anr.

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