Allowed

The New India Assurance Company Limited v. Smt. Janshi Bai

Chhattisgarh HC19 Feb 2024MAC/642/2017

Case brief

AI extract

What is this about?

Insurance appeal against MACT award for a rider killed by a motorcycle driven by a licence-holder for LMV/transport vehicles only. Holding the driver lacked a valid licence under Section 10 MV Act, the court exonerated the insurer but directed pay-and-recover from owner-driver per Swaran Singh.

What did the court decide?

Insurer exonerated of liability to satisfy the award; permitted to first pay claimants and then recover from owner-cum-driver.

The New India Assurance Company Limited Vs Smt. Janshi Bai — Insurance | Chhattisgarh HC (2024)

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NAFR

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H IGH COURT OF CHHATTISGARH, BILASPUR MAC No. 642 of 2017

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The New India Assurance Company Limited Divisional Manager, Division Office, Rama Trade Center, In Front Of Rajeev Plaza, Old Bus Stand Bilaspur, Chhattisgarh (Insurer Of Offending Vehicle Bearing Regd. No. C.G.10 V 8065)

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---- Appellant

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Versus

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1 - Smt. Janshi Bai W/o Adhana Lal Sarthi, Aged About 40 Years 2 - Adhanna Sarthi S/o Late Lakhan Lal Sarthi, Aged About 45 Years

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3 - Sarita D/o Adhanna Lal Sarthi,

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4 - Kavita D/o Adhanna Lal Sarthi,

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5 - Durga D/o Adhanna Lal Sarthi,

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6 - Varun S/o Adhanna Lal Sarthi,

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All are R/o Village Bitkuli, P.S. Seepat, District Bilaspur, Chhattisgarh.

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7 - Jageshwar Singh Maravi S/o Laxman Singh Maravi, R/o Village Bedparsada Gangasagr Mohalla P.S. Masturi, District Bilaspur, Chhattisgarh (Driver & Owner Of Offending Vehicle Bearing Regd. No. C.G.10 V 8065)

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---- Respondents

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For the Appellant : Mr. Raj Awasthi, Adv. For Respondent No.7 : Mr. Akash Shrivastava, Adv. None for respondents No.1 to 6, though served.

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Hon'ble Shri Justice Sachin Singh Rajput, Order on Board

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20.02.2024

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1. The appellant has filed the instant appeal under Section 173 of Motor Vehicle Act, 1988 (for short “the Act of 1988”) challenging the award dated 13.02.2017 passed by Motor Accident Claims Tribunal, (for short “learned Tribunal”) Bilaspur, (CG) in Claim Case No.323/2016. By the impugned award, the learned tribunal has awarded Rs.5,85,984/- as compensation to the respondents No.1 to 6/claimants with 7.5% interest per annum on account of death of deceased Dinesh in an unfortunate accident which took place on 27.03.2016 by rash and negligent driving of offending vehicle i.e. Pulsar Motorcycle bearing Registration No. CG-10V8065 by respondent No.7/driver cum owner and insured with appellant/insurance company.

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1. As per the pleadings of the claim application filed under Section 166 of the MV Act, the deceased was aged about 19 years and used to help in managing of Tata Magic owned by his father and from which he was earning an income of Rs.8,000/- per month. The claimants being dependents, claimed Rs.89,50,000/- as compensation under various heads.

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1. The claim application was resisted by respondents No.7/driver cum owner and appellant/insurance company of the offending vehicle on various grounds.

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1. The learned tribunal on the basis of pleadings of the parties framed issues and after appreciation of evidence and material available on record awarded the compensation as stated above.

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Learned counsel for the appellant/insurance company argued that the driver of the offending vehicle was not holding any valid and effective driving license to drive the offending vehicle i.e. motorcycle, he had a driving license to drive light motor vehicle and transport vehicle, this fact has been duly proved by calling a witness of RTO office or insurance company. Admittedly no driving license indicating that the driver of offending vehicle to drive the motorcycle is placed on record. Even the learned tribunal gave a categorical finding that he had driving license to drive light motor vehicle, however still the liability fasten upon the insurance company. 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. Therefore, he submits that the appeal

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may be allowed and the insurance company may be exonerated from payment of compensation.

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Learned counsel for respondent No.7 vehemently oppose the submissions and submits that the driver of the offending vehicle was having license to drive light motor vehicle and transport vehicle, therefore, when he could drive the vehicle of higher category, he could drive the offending vehicle i.e. motorcycle. He further submits that the appellant could not prove the defence under Section 149 (2) of the MV Act by cogent and prudent evidence therefore, the finding recorded by the learned tribunal may not be disturbed.

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1. Heard the learned counsel for the parties, considered their rival submissions and perused the record.

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In the case in hand, the offending vehicle is a motorcycle. The insurance company has filed its written statement and specifically stated that on the date of accident, the driver of the offending vehicle was not holding any valid and effective driving license which is violation of terms and conditions of the insurance policy. This fact has been proved by the insurance company by calling the witness Anil Swarnkar (DW-2) who has deposed in this line. Heeralal Dhurw (DW-1), who is Date Entry Operator, RTO Office Lagra Bilaspur also deposed in the same line. Ex.D-1 is the particulars of the license which indicates that light motor vehicletransport is valid from 04.07.2016 to 12.06.2019 and statement of Heeralal Dhurw also reflects that the driving license for light motor vehicle is issued on 23.10.1998 and for driving of heavy motor vehicle is issued on 13.05.2004. It further reflects that the license

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of light motor vehicle is valid upto 29.11.2023 and heavy motor

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vehicle is valid upto 12.06.2019.

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1. 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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(c) [adapted vehicle];

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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 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.

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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 possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Sect ion 10(2) of the MV Act.

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1. 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. The respondent No.7 could not brought any evidence to show that he had a license to drive motorcycle on the date of accident.

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1. 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 , 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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1. Appeal is thus allowed.

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Sd/- (Sachin Singh Rajput) Judge

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Parul

The New India Assurance Company Limited v. Smt. Janshi Bai

Case brief

What is this about?

What did the court decide?

The New India Assurance Company Limited v. Smt. Janshi Bai

Case brief

What is this about?

What did the court decide?

What the court decided

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