Harnarayan Agrawal Vs Dinesh Kumar Biyar

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2025:CGHC:515

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 161 of 2020

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Harnarayan Agrawal S/o Late Nivas Agrawal, R/o G.E. Road Tatibandh Raipur. Hall Mukam Plot No. 191 T.P. Nagar Korba Thana And Tahsil And District Korba Chhattisgarh...................Owner

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... Appellant(s)

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versus

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Dinesh Kumar Biyar S/o Jatiram Biyar, Aged About 34 Years R/o Gumiya Chowki Hardibazar, Thana Kusmunda Tahsil Kartala District Korba Chhattisgarh...............Claimant

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Ramesh Kumar Dhanuhar S/o Lochan Singh Dhanuhar, Aged About 31 Years R/o Ghonsara, Police Chowki Korbi Thana Pasan District Korba Chhattisgarh..............Driver

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The Insurance Company Limited, Branch Office- 13 Minu Complex Main Road Kosabadi Korba Tahsil Korba District Korba Chhattisgarh..................Insurer

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... Respondent(s)

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(Cause Title is taken from Case Information System)

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For Appellant	: Mr. Arjun Lal Singroul, Advocate
For Respondent No. 1	: Mr. Mirza Kaisher Beg, Advocate
For Respondent No. 3	: Mr. Sanjay Patel, Advocate
For Respondent No. 2	: None, though served.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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0 3.01.2025

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The appellant has challenged the award passed by the learned Motor Accidents Claims Tribunal, Korba in Claim Case No. 140 of 2015 dated 01.11.2019, wherein, an award of Rs. 8,55,000/- with interest at the rate of 7% was passed in favour of the claimants.

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The facts of the present case are that on 23.08.2013, respondent No. 2 parked his trailer bearing registration No. C.G. 04/JB/6379 on the middle of the road; on account of darkness, the vehicle was not visible, and the claimant, who was going to Gumiya from Janjgir Champa, dashed the trailer and sustained injuries over the head, face, eyes, and other parts of his body. Thereafter, the claimant remained hospitalized from 24.08.2013 to 14.09.2013.

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The claimant filed a claim case under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as Act, 1988) claiming therein compensation of Rs. 23,23,551/- inter alia on the ground that he was working as an agent in Sai Prasad Property Ltd. and was earning Rs. 37,520/- per month and at the time of the accident, his age was 34 years.

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It is also pleaded that there was a vision deficiency of up to 60% in the eyes of the claimant, and thus, a certificate was issued by the medical board in this regard. The owner filed a written statement and denied the allegations. It is stated that the driver of the vehicle had a valid driving license, the claimant himself was negligent, there was contributory negligence on the part of the claimant, and the claimant has exaggerated his income.

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The Insurance Company also filed a written statement and denied the contents of the application. A specific plea was taken by the insurer that there was no valid permit and fitness of the offending vehicle and in the absence of such mandatory requirement, liability cannot be fastened upon the insurer.

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The learned tribunal framed issues and passed an award of Rs. 8,55,000/in favour of the claimant, taking into consideration the disability, the injury sustained by the claimant, the period for which the claimant remained

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hospitalized, pain and suffering etc., with interest at the rate of 7% per annum from the date of filing of the claim application.

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Mr. Arjun Lal Singroul, counsel appearing for the appellant would submit that the liability has been fastened with the owner on the ground that at the time of the accident, in favour of the offending vehicle, no valid fitness certificate was issued. He further submitted that there is no such requirement under Section 149(2) of the Act, 1988 and this ground is not available to the Insurance Company. He also submitted that the claimant was negligent and a specific stand was taken by the owner of the vehicle. It is contended that the learned tribunal failed to frame issues in this regard, whereas, there was contributory negligence on the part of the claimant. It is further contended that in the absence of any proof of income, the learned tribunal committed an error of law in concluding that the monthly income of the claimant was Rs. 7,000/-. In support thereof, he placed reliance on the judgment passed by the Coordinate Bench of this Court in the matter of Divisional Manager, The Oriental Insurance Company Ltd. vs. Smt. Rupa Dahariya and others, MAC No. 1229 of 2012.

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On the other hand, Mr. Sanjay Patel and Mr. Mirza Kaisher Beg, learned counsels appearing for respondents No. 1 and 3 would oppose the submissions made by Mr. Singroul. They would submit that the driver of the offending vehicle parked the vehicle in the middle of the road and there was darkness. They would further submit that the driver of the vehicle was negligent in parking the vehicle. They would also submit that there was no contributory negligence on the part of the claimant as he was driving the vehicle in the middle of the road. It is contended that the owner of the vehicle failed to produce a valid fitness certificate and permit according to the provisions of Section 66 of the Act, 1988.

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Mr. Beg would further submit that the claimant was working under Sai Prasad Property Ltd. and was earning about Rs. 37,520/- per month. He would also submit that the owner failed to prove the contrary.

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10. Mr. Patel has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Amrit Paul Singh and another vs. Tata AIG General Insurance Company reported in 2018 7 SCC 558 and the judgment passed by the Full Bench of the Kerala High Court in the matter of Pareed Pillai vs. Oriental Insurance Co. Ltd., Ernakulam reported in AIR 2019 KERALA 9 : 2019 1 ACJ 16 .

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

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12. Admittedly, the driver of the offending vehicle parked the trailer in the middle of the road on the fateful date i.e. 23.08.2013; the claimant who was going from Jangir-Champa to Gumiya, dashed the vehicle from the back side and sustained grievous injury. The driver of the owner failed to examine himself. Though some documents were filed but copy of the permit and fitness certificate was not produced before the learned tribunal.

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13. The Hon’ble Supreme Court while dealing with a similar issue in the matter of Amrit Paul Singh (supra) in para 24 held that the use of a vehicle in a public place without a permit is a fundamental statutory infraction and such a situation cannot be equated with the absence of a license or a fake license or a license for a different kind of a vehicle. The relevant para 24 is reproduced herein-below:-

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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 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

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66 of the Act, needless to emphasise, are to be pleaded and 19 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 National Insurance Co. Ltd. vs. Swaran Singh, (2004) 3 SCC 297 and Lakhmi Chand vs. Reliance General Insurance, (2016) 3 SCC 100 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 ba 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 and other cases pertaining to pay and recover principle.

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14. This issue is no more res-integra and the Full bench of the High Court of Kerala in the matter of Pareed Pillai (supra) while dealing with Sections 147, 149(2)(a)(i)(c), 66 and 56(1) of the Act, 1988 held that the absence of a valid permit is a fundamental breach and not a technical breach. A similar view has also been taken by the High Court of Madhya Pradesh in the matter of United India Insurance Co. Ltd. vs. Vinod & Ors. reported in 2019 (3) C.G.L.J. 33 (M.P.) .

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15. The High Court of Kerala in the matter of Pareed Pillai(supra) while dealing with the issue involved at hand in para 17 held as under:-

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17. The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate the transport vehicle all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot

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be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of Section 66 of the Act and by virtue of the mandate under Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in nature; unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a trans- port vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.

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16. The High Court of M.P.(Gwalior Bench) in the matter of Vinod (supra) while dealing with a similar issue in para 10 and 17 held as under:-

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“10. Thus, it is clear that for use of a vehicle, Insurance Policy is required under Section 147 of Motor Vehicles Act, 1988, and for use of a vehicle, its registration is compulsory and for registration, the fitness certificate of the transport vehicle is necessary under Section 56 of Motor Vehicles Act. Use of vehicle without registration is also punishable under Section 192 of Motor Vehicles Act. Thus, in the considered opinion of this Court the requirement of fitness certificate for the liability of the Insurance Company is not dependent upon the terms and conditions of the Insurance Policy, but it is the

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requirement of law for using the vehicle in accordance with law and none of the term or condition of the Insurance Policy allows the owner of the vehicle to ply the vehicle in contravention of any provision of law. Thus, this Court is of the considered opinion that due to non-availability of the fitness certificate it can be safely said that the vehicle was being used contrary to the provisions of law, and since, the insurance policy is required under Section 147 of the Motor Vehicles Act, therefore, it cannot be said that Insurance Policy is a private contract of insurance between the driver and the Insurance Company, but in fact it is the statutory requirement.

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17. Accordingly, it is held that since the offending vehicle was not having the fitness certificate on the date of the accident, therefore, the terms and conditions of the insurance policy were violated and thus the Insurance Company is not .jointly and severally liable to make payment of compensation. However, in the light of the judgments passed by the Supreme Court in the cases of Amrit Paul Singh Vs. TATA AIG General Insurance Co. Ltd and Shamanna and another Vs. Divisional Manager the Oriental Insurance Co. Ltd. and- others *, it is held that the Insurance Company shall be liable to make payment of the compensation amount with liberty to recover the same from the owner.”

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17. The owner of the vehicle/appellant could not produce any document with regard to the permit and fitness certificate and since the offending vehicle did not have the fitness certificate on the date of the accident, the terms and conditions of the insurance policy were violated and thus the Insurance Company is not jointly and severally liable to make payment of compensation.

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18. With regard to contributory negligence, it is apparent from the record that the offending vehicle was parked in the middle of the road without any indicator or parking lights in a negligent manner. The claimant who was coming from the back side could not locate the stationary vehicle due to a flashlight coming from the opposite direction of the road.

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19. The Hon’ble Supreme Court while dealing with the issue of contributory negligence in the matter of Archit Saini and another vs. Oriental Insurance Company Ltd. and others reported in (2018) 3 SCC 365 in para 8 held as under :-

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“8. After having perused the evidence of PW 7, site map (Ext. P-45) and the detailed analysis undertaken by the Tribunal, we have no hesitation in taking the view that the approach of the High Court in reversing the conclusion arrived e at by the Tribunal on Issue 1 has been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done by the Tribunal, it is a well-considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the f Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW 7 as being unreliable nor has it discarded his version that the driver of g the Maruti car could not spot the parked Gas Tanker due to the flashlights of the oncoming traffic from the front side. Further, the Tribunal also adverted to the legal presumption against the driver of the Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The site plan (Ext. P-45) reinforces the version of PW 7 that the truck (Gas Tanker) was parked in the middle of the road but the High Court opined to the contrary without assigning any reason whatsoever. In our view, the site plan (Ext. P-45) filed along with the charge-sheet does not support the finding recorded by the High Court that the Gas Tanker was not parked in the middle of the road. Notably, the High Court has also not doubted the claimant's plea that the Gas Tanker/offending vehicle was parked without any indicator or parking lights. The fact that PW 7 who was standing on the opposite side of the road at a distance of about 70 ft, could see the Gas Tanker parked on the other side of the road does not discredit his version that the Maruti car coming from the opposite side could not spot the Gas Tanker due to flashlights of the oncoming traffic from the front side. It is not in dispute that the road is a busy road. In the cross-examination, neither has any attempt been made to discredit the version of PW 7 nor has any suggestion been made that no vehicle with

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flashlights on was coming from the opposite direction of the parked Gas Tanker at the relevant time.”

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20. Taking into consideration the facts of the case with regard to contributory negligence and the law laid down by the Hon’ble Supreme Court in the matter of Archit Saini (supra), there was no contributory negligence on the part of the claimant.

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21. With regard to the income of the claimant, the claimant has fairly stated that he was working as an agent and earning Rs. 37,520/- per month. Though the claimant failed to examine his employer, but he was an educated person and it can be presumed that he would have been earning Rs. 7,000/- per month and the learned tribunal has not committed any error of law while assessing the monthly income of the claimant.

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22. Taking into consideration the above-discussed facts and law discussed above, in the considered opinion of this Court, no case is made out for interference.

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23. Accordingly, this petition fails and is hereby dismissed . No cost(s). S

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Sd/- (Rakesh Mohan Pandey) Judge

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$iddhant

Harnarayan Agrawal v. Dinesh Kumar Biyar

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Harnarayan Agrawal v. Dinesh Kumar Biyar

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