Mitesh Soni Vs Sher Singh Khela

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2025:CGHC:28403

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1364 of 2019

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1 - Mitesh Soni S/o Tul Bahadur Soni Aged About 23 Years R/o Pandit Deendayal Upadhyay Nagar, Khursipar, Bhilai, Tahsil And District- Durg, Chhattisgarh.

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--- Appellant

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versus

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1 - Sher Singh Khela S/o Late Gurudayal Singh R/o Bikunthdham Nagar, Shardapara, Infront Of Ashok Kirana Stores, Camp-2, Chhawani, Bhilai, District Durg, Chhattisgarh ( Driver Of Sumo No. Cg-07/au-3060).

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2 - Maa Bhagwati Services, Through- Proprietor Vivek Kumar Tank, S/o Harish Kumar Tank, R/o Qtr. No. 49/d, Sadak Avenue C, Sector- 2, Bhilai, Tahsil And District Durg, Chhattisgarh....... ( Owner Of Sumo No. C.G.-07/au3060)

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3 - Divisional Manager, The New India Insurance Company Limited, AddressFirst Floor Estate Near Chandra, Mourya, Talkies, G.E. Raod Supela, Bhilai, Tahsil And District- Durg, Chhattisgarh ( Insurer Of Sumo No. C.G. 07/au3060).

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	---Respondents
For Appellant	: Ms. Ranjana Tiwari, Advocate on behalf of Mr. Praveen Dhurandhar, Advocate
For Respondent No. 2	: Mr. Hemant Kumar Agrawal, Advocate
For Respondent No.3	: Mr. B.N. Nandey, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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27/06/2025

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Claimant/appellant has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking enhancement of compensation awarded by the learned Additional Motor Accident Claims Tribunal, Durg, District – Durg (for short ‘the

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Claims Tribunal’) vide award dated 11.04.2019 passed in Claim Case No.108/2015 and further prays for issuance of a direction to the Insurance Company to first pay the amount of compensation and thereafter to recover from owner of the offending vehicle. Cross appeal by owner/respondent No.2 is also filed challenging the finding of the learned Claims Tribunal of exoneration of Insurance Company from its liability on the ground that on the date of accident, the offending vehicle was not having valid permit for plying the vehicle on public road.

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Facts relevant for disposal of this appeal are that a claim application was filed by the appellant/claimant seeking compensation as against the injury suffered by him in the road accident. It was pleaded in the application that on 10.01.2015 at approximately 9.30 PM, Mitesh Soni was traveling from Khursipar to Pandit Deendayal Nagar on his friend’s motorcycle bearing registration number CG-07/AM-7242 at the same time, driver of Sumo car bearing registration number CG-07/AU3060 by driving the said car in rash and negligent manner dashed the motor cycle from behind, on which the appellant was travelling and caused accident. The appellant sustained severe injuries, including a rupture of intestine, fracture of spine, and serious injuries to his leg. He was initially taken to the Government Hospital, Supela. Due to the critical nature of his injuries, he was referred to and admitted at Sparsh Hospital, where he remained under treatment from 10.01.2015 to 19.01.2015. Subsequently, he was transferred to BSP Sector-9 Hospital, Bhilai, where he was admitted from 19.01.2015 to 21.02.2015.

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Non-applicant No.1 and 2 filed their reply to the claim application and resisted the claim. It was pleaded that the accident occurred due to the negligence of the driver of motorcycle himself. The offending vehicle was duly insured with respondent No.3..

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Non-applicant No.3 also filed its reply denying the averments made in the claim application. It was pleaded that at the time of accident, three persons were travelling on motor cycle in violation of the Motor Vehicle Act and Rules. Non-applicant No.-2 is a business firm that owns the vehicle, which is registered as a taxi and was being used for commercial purposes at the time of accident without obtaining necessary permit in breach of conditions of the insurance policy.

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The learned Claims Tribunal upon appreciation of the pleadings and the evidence brought on record by respective parties, allowed the claim application in part, awarded total compensation of Rs.2,80,000/fastening liability upon the owner/non-applicant No.2 of the offending vehicle to pay the amount of compensation on the ground that at the relevant point of time, necessary permit was not obtained by the nonapplicant No.2 for plying the offending vehicle.

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Learned counsel for the appellant/claimant submits that she is pressing this appeal only on the ground that the learned Claims Tribunal erred in not issuing a direction to respondent No.3/Insurance Company of pay and recover. She has not challenged the quantum of award passed by the learned Claims Tribunal. She submits that learned Claims Tribunal recording a finding that as the offending vehicle was not having valid permit, there was breach of conditions of insurance policy has exonerated the insurance company from

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indemnifying the injured, however, in the facts of the case, learned Claims Tribunal could have issued a direction of pay and recover. She placed reliance upon the decision of Hon’ble Supreme Court in case of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558.

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Learned counsel for respondent No.2, owner of the offending vehicle would submit that he has filed cross appeal challenging the finding of the learned Claims Tribunal exonerating the Insurance Company from indemnifying the insured. He contended that learned Claims Tribunal in its award has recorded the defence taken by the owner of the offending vehicle that at the time of accident, vehicle was not carrying passenger, but it was going to Sairam Body Shop for repairing, therefore, in view of the provisions under Section 66 (3) (p) of the Act, 1988, there is no requirement of permit at that relevant period of time. He also contended that learned Claims Tribunal has awarded Rs.1,35,000/- towards medical expenses, however none of the persons/employees of the hospital has been examined to prove the medical bills placed by the claimant and accepted by the learned Claims Tribunal. He also contended that interest awarded by the learned Claims Tribunal is on higher side.

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Learned counsel for respondent No.3/Insurance Company opposes the submission of both the counsel. He resisted the grounds in crossappeal and would submit that according to the specific provision under Section 66 (1) of the Act, 1988 that for plying the transport vehicle or passenger carrying vehicle on public road, permit is mandatory even if the vehicle is being plied empty. He further contended that there is no

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specific pleading and defence as to what mechanical fault suffered with by the offending vehicle at that relevant point of time. Hence, the defence taken before the learned Claims Tribunal that the offending vehicle was being taken for repairing is not sustainable and accordingly, the learned Claims Tribunal has disbelieved, that defence. He also pointed out that pay and recover is not to be ordered in each and every cases. The pay and recover can be ordered only where the claimant may face difficulty for recovery of the amount of compensation. In the case of like nature, it is for the claimant to prove that the amount of compensation awarded by the learned Claims Tribunal could not be recovered from the owner. In support of his contention, he placed reliance upon the the decision of Coordinate Bench of this Court in MAC No. 1295 of 2016 and other connected matters decided on 30.07.2024.

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I have heard learned counsel for the parties and perused the documents placed on record.

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In the facts of the case, I find it appropriate to first consider the crossappeal filed by the respondent No.2/owner of the offending vehicle. The grounds raised by the learned counsel for the respondent No.2 that in view of the defence taken by the owner that the vehicle was being taken to the garage for its repair I find it appropriate to peruse the reply filed by the non-applicant No.1 and 2 i.e. driver and owner of the offending vehicle. In reply no defence as such submitted before the Claims Tribunal has been specifically taken. There is no pleading in the reply that the vehicle was being taken to garage for the purpose of repairing of particular fault in the vehicle. In absence of the

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pleadings mere oral submission during the course of arguments if raised before the Claims Tribunal could not be accepted. For the foregoing discussions, the submission made by the learned counsel for the respondent No.2 that the offending vehicle being taken to garage for the purpose of repairing is not acceptable, accordingly it is repelled.

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So far as the second grounds raised by the learned counsel for respondent No.2/owner, in view of the provisions under Section 66 (3) (p) of the Act, 1988, there was no requirement of permit in view of the above discussion is not sustainable because the driver failed to plead this fact in the written statement and further during the course of argument no specific mechanical fault or defect of the vehicle has been pointed out. The provision under Section 66 of the Act, 1988 deals with necessity for permits, which provides that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods. From bare perusal of the aforementioned extracted provisions of Section 66 (1) of the Act, 1988, it is apparent that even if the commercial vehicle is running empty on public road, permit shall be required for such vehicle also. In view of the above specific provision under the Act, 1988, the submission of learned counsel for the respondent No.2 that as the vehicle was running empty at the time of accident, the permit was not necessary is also not sustainable, accordingly it is repelled.

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So far as the other submission made by the learned counsel for the respondent No.2 that no employee of the hospital or the doctor has

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been examined to prove the bill, is concerned, the claimant suffered motor accidental injuries over his person. He took treatment as inpatient from Sparsh Hospital and BSP Sector-9, Hospital. He underwent operation also. The claimant has submitted the discharge summary of Jawahar Lal Nehru Hospital and Research Center, Bhilai (Sector -9 Hospital) in which date of admission is mentioned as 19.01.2015 till 21.02.2015. Copy of the documents showing the procedure of treatment given by the doctors of the hospital is also filed along with Ex.P-8 (discharge summary). The bills of the hospital enclosed, investigation, cash receipt and etc has been placed on record. Doctor has also been examined to prove the nature of the injuries and the treatment given. Further claimant has also taken treatment from Sparsh Multispeciality Hospital, Bhilai and as per the bed head sheet, date of admission is shown as 10.01.2015 till 19.01.2015 i.e. prior to admission at Sector-9 Hospital, Bhilai. Considering entirety of the facts of the case, nature of the injuries suffered, treatment taken by the appellant/claimant, the computation of amount by the learned Claims Tribunal under the head of medical expenses is based on the original documents of the treatment and the bills submitted, which cannot be said to be erroneous. Hence, I am not inclined to accept the submission of learned counsel for the respondent No.2 that the learned Claims Tribunal erred in awarding the amount of Rs.1,35,000/- towards medical expenses without having proof of the said bills, accordingly, it is repelled.

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So far as the last submission made by the learned counsel for the respondent No.2 that the learned Claims Tribunal erred in awarding

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excessive interest on the amount of compensation awarded is concerned, the learned Claims Tribunal has awarded 8% interest per annum on the amount of compensation. The claimant became entitled for the compensation on the date he met with an accident, however, no amount of compensation was paid by the non-applicants to the claimant. The interest on the amount of compensation is to be awarded keeping in mind the interest on the fixed deposit prevailing in the nationalized bank. Considering the date of accident, I am not inclined to interfere with the award of interest by the learned Claims Tribunal.

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For the foregoing discussion, the cross-appeal filed by the respondent No.2/owner having no merit is liable to be and it is hereby dismissed.

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So far as the prayer made by the learned counsel for the appellant/claimant of a direction to the insurance company to pay and recover is concerned, admittedly the Insurance Company is exonerated from its liability on account of the breach of conditions of insurance policy as at the time of accident, the vehicle was not having valid permit.

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The Hon'ble Supreme Court in case of Amrit Paul Singh (supra) has considered the issuance of a direction to Insurance Company to pay and recover in case of breach of conditions of the insurance policy for want of valid permit and held thus :-

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“24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the

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accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and other cases pertaining to pay and recover principle.”

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Considering the facts of the case, decision of Hon'ble Supreme Court and also keeping in mind the object of the Act, 1988 to provide compensation to the persons suffered injury and the legal heirs of the deceased, who died in the motor accident, I find it appropriate to allow the prayer made by the learned counsel for the appellant/claimant.

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Accordingly, the appeal filed by the appellant/claimant is allowed in part. The respondent No.3/Insurance Company is directed to first satisfy the amount of compensation and thereafter to recover the same from the owner of the offending vehicle. It is made clear that the Insurance Company can recover the amount of compensation so paid as observed by the Hon’ble Supreme Court in case of Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224. Other conditions of the award shall remain intact.

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Balram

Mitesh Soni v. Sher Singh Khela

Case brief

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Mitesh Soni v. Sher Singh Khela

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