Allowed

Omprakash Soni and Anr. v. Neha Agrawal and Ors.

Chhattisgarh HC14 Sept 2012MAC/409/2011

Case brief

AI extract

What is this about?

This bench allowed motor vehicle appeals arising from a fatal accident. It held that the insurance company failed to discharge the burden of proving the driver lacked a valid licence or that the owner was negligent under Section 149. Consequently, the insurer was held jointly and severally liable.

What did the court decide?

The insurance company held jointly and severally liable for compensation; award modified to include insurer liability.

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

¶1

H1GH COURT OF CHHATnSGARH AT BILASPUR

¶2

Misc. Appeal (Ct No. 359 of 2011

¶3

/- ,h»

¶4

APPEU.ANTS	1. Om Prakash Soni, son of Jaggu Ram Soni, aged about 35 years, resident of village - Rajpur, Police Station and Tahsit - 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 about11 years, minor, through his her natural guardian Suresh Agrawal, son of 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 (Cl 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

¶5

Versus

¶6

RESPONDENTS

¶7

Neha Agrawal, aged about 20 years, occupatfon - House work, resident of In front of Bank, Nagar, Police Statkin and Tahsil - Rajpur, District Surguja (Chhattisgarh)

¶8

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

¶9

MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLEACT./1988

¶10

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

¶11

Present : ShriV.K-Pandey, counsetfortheappellants. l Shri Sanjay S. Agrawal, counsel for respondent No.2 v

¶12

ORAL AWARD (14.09.2012)

¶13

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 are arising out of the same accident.

¶14

The facts necessary for disposal of this appeal are as unden i. On 22-4-2009, the Jeep bearing registration No.C.G.16/08< met with accident. In the said accident, Neha Agrawal, aaed about 28 years and Pranjal Agrawal, aged about 11 years got injured.

¶15

ii.

¶16

Both the above claimahts have filed claim applications under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for thejnjuries^{sustainedbytheminthemotor} accident on 22.4.2009.

¶17

The Tribunal, on a close scrutiny of the evidence led, held; the accident had occurred due to rash and negligent driving of J.eep bearing registration No.C.G.16/0844 by its driver Sanjay Soni @

¶18

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 No. 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.

¶19

¶20

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.

¶21

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 ^k).2/insurance company from its liability to pay compensation.

¶22

¶23

I have heard learned counsel appearing for the parties and perused the record ofthe Tribunal jncluding award impugned.

¶24

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 Natlonal Insurance Co. Ltd. v. Swaran Slnghand others, (2004) 3 SCC 297 has held in para 110 ~ (iii) & 110 (iv) as under :

¶25

"(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence 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 not 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) InsurancS 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 the part ofthe owner of the vehicle; the burden of proof wherefor would be on them."

¶26

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 the appellants nor the witness P.K.Sahu (N.A.W.1),^examinedby respondent No.2/insurance company,^could prove^thefactthat

¶27

y^ ^7

¶28

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.

¶29

It was for the appellant/insurance company to prove the defence taken by it in thewrittenstatement, 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 hascommitted 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 compensationupontheappellants.}

¶30

For the reasons mentioned hereinabove, the appeals are allowed. The respondent No.2/United India Insurance Company Limited is also held liable jointly and severatly 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. .

¶31

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

¶32

compensation along with interest in both the claim cases, i.e. claim case No. 153/2009 and claim case No. 154/2009 before the

¶33

concerned Claims Tribunal.

¶34

No order as to costs.

¶35

Sd/N. K. Agarwal Judge

Omprakash Soni and Anr. v. Neha Agrawal and Ors.

Case brief

What is this about?

What did the court decide?

Omprakash Soni and Anr. v. Neha Agrawal and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ram Keliya and Another Vs Phool Kunwar and Others

Shiv Prasad Joshi Vs the Commissioner Municipal Corporation

Shyam Kumar Shrivastava Vs Birendra Kumar and Ors.

National Insurance Comp.Ltd. Vs Madho Ram Nishad and Ors.

Omprakash Soni and Anr. Vs Pranjal Agrawal and Anr.

Mirza Jamaluddin Beg Vs Mohanlal Yadav and Ors.