Allowed

The Oriental Insurance Company Limited v. Smt. Bundbai

Chhattisgarh HC13 Feb 2024MAC/228/2017

Case brief

AI extract

What is this about?

Insurer appealed an MACT award for a fatal motorcycle accident, arguing the driver held only an LMV licence, not one for a geared motorcycle. The court agreed, exonerated the insurer of liability, but directed it to first pay claimants and then recover from the owner-cum-driver.

What did the court decide?

Insurance company exonerated of liability; directed to first pay award of Rs.6,51,000/- to claimants and then recover from owner-cum-driver.

The Oriental Insurance Company Limited Vs Smt. Bundbai — Insurance | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 228 of 2017

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(Order reserved on 05.02.2024)

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(Order pronounced on 14.02.2024)

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The Oriental Insurance Co. Ltd. through its Divisional Manager, Divisional Office, Ist Floor, Rama Trade Centre, Near Bus Stand, Bilaspur, Civil & Revenue District Bilaspur, CG PIN – 495001.

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---- Appellant/NA No.2

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Versus

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1. Smt. Bundbai, Wd/o Kashiram, aged about 41 years,

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2. Lakhanlal, S/o Kashiram, aged about 28 years,

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3. Pappu Kumar, aged about 21 years, S/o Kashiram,

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Note: All by caste Satnami, At Pahariya, PS & Tahsil Baloda, District JanjgirChampa, CG

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(Claimants)

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4. Firat Khunte S/o Maharathi Khunte, At Pahariya, PS Baloda, District Janjgir Champa, CG Present Address : Balgi, PS Kusmunda, District Korba, CG

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(Owner-cum-Driver)

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5. Nisha Kumari D/o Kashiram, aged about 24 years, W/o Devendra, R/o Village Leemdih, PS Kartala, district Korba, CG

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---Respondents

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For appellant - Shri Akash Shrivastava, Advocate
For respondents No. 1to3 - Shri Alok Tiwari,Advocate
For respondent No.4 - Shri Anand Shukla, Advocate

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CAV Order by Hon'ble Shri Justice Sachin Singh Rajput

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This appeal under Section 173 of the Motor Vehicle Act (for short “MV Act”) is against the impugned award dated 21.10.2016 passed by Motor Accident Claims Tribunal (for short “Tribunal”) Janjgir, CG, in Claim Case No.33/2016. By the impugned award learned Tribunal has awarded the compensation of Rs. 6,51,000/- in favour of the claimants/ respondents No. 1 to 3 to be paid by the appellant/insurance company.

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It is a case where deceased Kashiram Miri died in a road accident on 11.05.2015. At that time he was aged about 45 years and being a mason by occupation he was earning Rs. 10,800/- per month. Respondent No.4 herein was the driver and owner of the offending motorcycle whereas the appellant is its insurer. The appellant/Insurer filed the written statement and denied almost all the claim averments. It has been specifically pleaded on its behalf that the driver and owner (R-4 herein) of the offending vehicle himself did not have the valid and effective driving licence to drive the motorcycle. Driver-owner of the said motorcycle in his written statement has admitted that he is the registered owner of the offending vehicle and that it was insured with the appellant herein and that he was having the valid and effective driving licence also. Learned Tribunal framed the issues and decided them all in favour of the claimants. Against the compensation of Rs. 22,65,649/- claimed by the claimants/respondents No. 1 to 3 who are the wife and sons of the deceased, learned Tribunal awarded a sum of Rs. 6,51,000/- Hence this appeal by the Insurance Company.

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Learned counsel for the appellant/Insurer submits that in this case the offending vehicle is a motorcycle and Section 10 of the MV Act provides for distinct classes of vehicles for which driving licence is issued. He submits that the driver of the motorcycle (R-4 herein) was holding the licence to drive only LMV and not the motorcycle with gear, therefore on the date of accident the offending vehicle was driven by respondent No.4 without the effective and valid driving licence. He submits that the defence taken by the insur-

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ance company has been duly proved with the help of cogent and prudent evidence and therefore the appellant/insurer may be exonerated of its liability to satisfy the award. In support of his submissions, reliance is placed on the decision of the Supreme Court in the matter of Oriental Insurance Co. v. Zaharulnisha and others reported in 2008 AIR SCW 3251 and an unreported decision of this Court dated 31.08.2017 rendered in MAC No. 631 of 2017 connected with MAC No. 1109 of 2017.

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On the other hand, counsel for the respondents 1 to 3 – the claimants, supports the award impugned and submits that it being just and proper does not warrant any interference in this appeal. Counsel for respondent No.4 submits that the insurance company could not prove the defence taken by it by leading cogent and prudent evidence. In support of his submissions, reliance is placed on the decision of the Delhi High Court in the matter of Oriental Insurance Company Ltd. Vs. Smt. Kamlesh and others rendered in MAC APP. No. 175/2005 & CM No. 3988/2005.

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Heard counsel for the parties and perused the record.

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Insurance Company filed its written statement and took a very specific plea that driver of the offending vehicle was not holding the valid and effective driving licence to drive the motorcycle. Respondent No.4 herein – the driver and owner of the motorcycle examined himself as NAW-1 and stated that he had a valid and effective driving licence to drive the two wheeled and four wheeled vehicle. He is stated to have even produced the driving licence to drive the two wheeled vehicle. One Sanjay Wastrakar has been examined as NAW-2 on behalf of the Insurance Company and exhibited the verification report of the driving licence Ex. NA-4 according to which respondent No.4 herein was not eligible to drive the motorcycle. He was subjected to cross examination also but nothing significant could be elicited to discard his version spoken in the examination-in-chief. C.P. Ghritkar (NAW-2) - the Admin-

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istrative Officer of the Insurance Company has been examined to prove the insurance policy Ex.NA-10. He has stated that on the date of accident the offending vehicle was insured with the appellant herein. On a query being made, he has stated that respondent No.4 herein was having the licence to drive the Light Motor Vehicle (LMV) and not the motorcycle.

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To appreciate the controversy involved in this case, Section 10 of the MV Act appears necessary to be taken note of, which is reproduced as under:

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“10. Form and contents of licences to drive.-

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(1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.

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(2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-

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(a) motor cycle without gear;

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(b) motor cycle with gear;

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(d) light motor vehicle;

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[(e) transport vehicle;]

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(i) road-roller;

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(j) motor vehicle of a specified description.”

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Section 10 referred to above thus indicates that a distinct class has

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been made for different motor vehicles, and that one should have the driving licence for the vehicle which he or she intends to drive. Dealing with an identical question it has been held by the Supreme Court in the matter of Oriental Insurance Company v. Zaharulnisha (supra) as under:

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“18. In the light of the above-settled proposition of law, the appellant-insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possesing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.”

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Thus in the light of above factual and legal position this Court has no hesitation to say that on the date of accident, the driver of the vehicle in question was not having a valid and effective driving licence to drive the motorcycle which he drove on the fateful day. From perusal of the driving licence and the verification details, this fact stands further fortified. Case law sought to be taken support of by counsel for respondent No.4 of Delhi High Court referred to above is not applicable to the present case as it involves different facts.

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Accordingly, the appeal is allowed and the appellant – Insurance Company is exonerated of its liability to satisfy the award. However, considering judgments of the Supreme Court in the matter of National Insurance Company. Ltd. v. Swaran Singh and others reported in (2004) 3 SCC 297 and in the matter of - National Insurance Co. Ltd., Vs Challa Bharathamma and others reported in 2004 ACJ 2094 , this Court directs the appellant to first satisfy the award and then it may recover from the owner-cum-driver of the offending vehicle.

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11. Appeal is thus allowed.

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Sd/-

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(Sachin Singh Rajput) Judge

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Jyotishi

The Oriental Insurance Company Limited v. Smt. Bundbai

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Company Limited v. Smt. Bundbai

Case brief

What is this about?

What did the court decide?

What the court decided

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