Dismissed

The Oriental Insurance Company Limited v. Shiv Kumar Pao

Chhattisgarh HC10 Jun 2024MAC/236/2017

Case brief

AI extract

What is this about?

Insurer appealed against tribunal award of compensation for death of a passenger, contending she was a gratuitous passenger and the driver lacked a valid driving licence. The court found no evidence she was a gratuitous passenger and held that a driver holding an LMV licence suffices for a vehicle under 7,500 kg, relying on Supreme Court precedent, and dismissed the appeal.

What the court decided

AI extract

The Oriental Insurance Company Limited Vs Shiv Kumar Pao — Insurance | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Misc. Appeal (C) No.236 of 2017

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The Oriental Insurance Company Limited Behind Rajeev Plaza, Old Bus Stand, Bilaspur, Chhattisgarh ..............Non-Applicant No.3/ Insurer Of Offending Vehicle No. M.P.18 L 0335, Chhattisgarh

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---- Appellant

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Versus

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Shiv Kumar Pao S/o Late Bharat Singh Pao, Aged About 30 Years R/o Village Usad, Tahsil Mervahi, Police Station Merwahi, District Bilaspur, Chhattisgarh ...............Claimant, Chhattisgarh

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Dinesh Kumar Chandra S/o Deenbandhu Mahar, Aged About 43 Years R/o Puranibasti, Tahsil Merwahi, Police Station Merwahi, District Bilaspur, Chhattisgarh .............. Driver Of Offending Vehicle No. M.P.18 L 0335, District : Bilaspur, Chhattisgarh

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Kamlesh Gupta S/o Guljarilal Gupta, Aged About 25 Years R/o Puranibasti, Tahsil Merwahi, Police Station Merwahi, District Bilaspur, Chhattisgarh .............. Owner Of Offending Vehicle No. M.P.18 L 0335, District : Bilaspur, Chhattisgarh

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---- Respondent

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__________________________________________________________

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For Appellant : Mr. Pankaj Agrawal, Advocate alongwith Ms. Swati Agrawal, Advocate For Respondent No.1 : Mr. Abhishek Sharma, Advocate For Respondent Nos. 2 & 3 : None.

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__________________________________________________________

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Hon'ble Shri Justice Sachin Singh Rajput Order on Board

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11.06.2024

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This appeal has been filed under Section 173 of Motor Vehicles Act, 1988 being aggrieved by the award dated 05.11.2016 passed in in Claim Case No.13/2016 by the Additional Motor Accident Claims Tribunal, Pendra Road, District Bilaspur Chhattisgarh. The claimant

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has claimed Rs.20.00 lacs under different heads, the learned Tribunal has awarded compensation of Rs.1,15,000/- in favour of the respondent No.1 on account of death of the deceased Samodia Bai. She was sitting in the vehicle bearing Registration No. MP18 L 0335 which was driven in rash and negligent manner by Respondent No.2, namely, Dinesh Kumar Chandra (driver) and the Respondent No.3, namely, Kamlesh Gupta (owner of the vehicle) insured by the appellant insurance company.

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As per the pleadings of the claim application, the deceased was traveling in the offending vehicle and the driver of the vehicle drove the vehicle in rash and negligent manner and the incident took place, resultantly cause the death of the deceased (Samodia Bai). The offence under Section 304-A of the IPC was registered against the respondent No.2 (driver) of the offending vehicle. The Respondent No.1/claimant depended on the income of the deceased.

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The respondent Nos. 2 and 3 filed their written statement and denied the averments of the claim application.

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The appellant insurance company also filed a written statement and denied the averments of the claim application. It was pleaded that the deceased was gratuitous passenger and the driver did not have valid and effective driving licence so the insurance company is not liable to pay the compensation.

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The learned Tribunal framed issues on the basis of the pleadings of the parties and after assessment of the evidence available on record the Tribunal came to the conclusion that the insurance company is liable to pay the compensation.

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Shri Pankaj Agrawal along with Ms. Swati Agrawal, Advocate for the insurance company vehemently argued that the deceased was the gratuitous passenger and the driver did not have valid and effective driving licence, therefore, the finding with regard to fastening the liability upon the insurance company is bad in law and requires to be set aside.

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Learned counsel for the respondent No.1 submits that the issue with regard to driving licence is no longer res integra in the light of judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan Versus Oriental Insurance Company Limited as the driver of the offending vehicle has the licence to drive the light motor vehicle (LMV). He has supported the award and submitted that the policy and terms and conditions of the policy (Exhibit D/3), wherein the present sitting capacity of the vehicle is shown to be 2+1, therefore, this appeal deserves to be dismissed.

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I have heard both the parties, perused the record and considered the rival submissions.

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First issue with regard to the fact whether the deceased was traveling

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as a gratuitous passenger or not? The Tribunal after meticulous examination of the evidence available on record came to the conclusion that the deceased was not a gratuitous passenger. The sitting capacity of the offending vehicle is 2+1, it does not appear from the record and the witness of the insurance company examined as Shivlochan (NW-2) who has not stated in his evidence that the deceased was traveling as a gratuitous passenger. The only defence appears to have been taken by the insurance company is with regard to violation of the terms and conditions only on the ground of valid and effective driving licence. Therefore, this contention of Shri Pankaj Agrawal and Ms. Swati Agrawal, Advocates is hereby repelled. Also, the contention with regard to valid and effective driving licence is res integra in the light of judgment of Supreme Court in the case of

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Mukund Dewangan (supra).

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Admittedly, the driver of the offending vehicle had licence to drive light motor vehicle and the weight of the offending vehicle was less than 7,500 K.G. Therefore, the contention in this regard raised by the insurance company is also repelled. Consequently, the appeal fails and is hereby dismissed.

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Accordingly, this appeal is dismissed .

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Sd/(Sachin Singh Rajput) Judge

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Abhigya.S

The Oriental Insurance Company Limited v. Shiv Kumar Pao

Case brief

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What the court decided

The Oriental Insurance Company Limited v. Shiv Kumar Pao

Case brief

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