Raipur, Chhattisgarh v. 1 - Fekulal Suryawanshi S/o S/o Kanhaiyalal Suryavanshi Aged About 48 Years R/o Village
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:43068 NAFR MAC No. 527 of 2018 1 - Bajaj Allianz General Insurance Company Limited, Through Manager, Head Office- G.I Plaza, Airport Road, Yerwada, Pune M. H. Pin 411006, Branch Office- Shivmohan Bhawan, Vidhan Sabha Road, Pandri, Raipur, Chhattisgarh. Pin 492001. ............(Non Applicant No. 3.), District : Raipur, Chhattisgarh --- Appellant versus 1 - Fekulal Suryawanshi S/o S/o Kanhaiyalal Suryavanshi Aged About 48 Years R/o Village (Muktaraja Baradwar), Thana Jaijaipur, Tehsil Sakti, District Janjgir- Champa, Chhattisgarh. ............Claimant, District : Janjgir-Champa, Chhattisgarh 2 - Raju Prasad Sahu S/o S/o Chotelal Sahu Aged About 30 Years R/o Shivpurva, Tehsil Gud, District Rewa M. P. Present Address- Camp. 1, Bhilai, P. S. Chawni, Bhilai, C/o H. T. C. Transport, T. P. Nagar, Bhilai, Durg, Chhattisgarh. ..............Driver., District : Durg, Chhattisgarh 3 - Anupam Shah S/o S/o Ajit Shah R/o Care Of H T C Transport, T. P. Nagar, Bhilai Durg, Chhattisgarh. ..................Owner., District : Durg, Chhattisgarh --- Respondent(s) 2 MAC No. 554 of 2018 1 - Bajaj Allianz General Insurance Company Limited Through Manager, Head Office- G.I. Plaza, Airport Road, Yerwada, Pune M.H. Pin 411006, Branch Office- Shivmohan Bhawan, Vidhan Sabha Road, Pandri, Raipur, Chhattisgarh, Pin 492001 (Non-Applicant No.3), District : Raipur, Chhattisgarh ---Appellant Versus 1 - Deepak Kumar Suryawanshi S/o Fekuram Suryavanshi Aged About 24 Years R/o Village Muktaraja Baradwar, Thana Baradwar, Tehsil Sakti, District Janjgir-Champa, Chhattisgarh, District : Janjgir-Champa, Chhattisgarh 2 - Jahnvi D/o Deepak Kumar Suryavanshi Aged About 2 Years Minor Represented Through Natural Guardian Father Deepak Kumar Suryavanshi, R/o Village Muktaraja Baradwar, Thana Baradwar, Tehsil Sakti, District Janjgir-Champa, Chhattisgarh, District : Janjgir-Champa, Chhattisgarh 3 - Manvi D/o Deepak Kumar Suryavanshi Aged About 04 Months, Minor Represented Through Natural Guardian Father Deepak Kumar Suryavanshi, R/o Village Muktaraja Baradwar, Thana Baradwar, Tehsil Sakti, District Janjgir-Champa, Chhattisgarh (Claimants), District : Janjgir-Champa, Chhattisgarh 4 - Raju Prasad Sahu S/o Chotelal Sahu Aged About 30 Years R/o Shivpurva, Teshil Gud, District Rewa (M.P.) Present Address- Camp 1, Bhilai, P.S. Chawni, Bhilai, C/o H.T.C. Transport, T.P.Nagar, Bhilai Durg, Chhattisgarh (Driver), District : Durg, Chhattisgarh 5 - Anupam Shah S/o Ajit Shah R/o Care Of H.T.C. Transport, T.P.Nagar Bhilai, Durg, Chhattisgarh (Owner), District : Durg, Chhattisgarh --- Respondents 3 For Insurance Company
Legal Reasoning
: Ms.Santoshi Yadav, Advocate on behalf of Mr. Utsav Mahiswar, Advocate. For Claimants : Mr. Pravesh Sahu, Advocate Hon’ble Shri Amitendra Kishore Prasad, Judge 25.08.2025 Judgment on Board 1. Since both the above-captioned appeals filed by the Insurance Company arise out of the same impugned awards dated 19.09.2017 passed by the Second Additional Motor Accidents Claims Tribunal, Sakti, District Janjgir-Champa, C.G. in separate Claim Case Nos. 11/2016 and 54/2015, relating to the same
Decision
accident, they are being heard together and are disposed of by this common judgment. 2. As per averments made in the claim petitions, on 25.04.2015, respondent No.1 Fekulal had taken his daugther-in-law/Smt. Bindyabai (hereinafter referred to as 'deceased') to Sakti Hospital for delivery, where at about 12:05 p m, on the same day, she gave a birth to a girl child. Thereafter, on 27.04.2015, at about 7:00 am, after being discharged from the hospital, they were returning to their village Muktajhara in the Mahatari Express Vehicle of the hospital. Besides the deceased-Smt. Bindyabai, respondent No.1 Fekulal, Dhansai, Dorren and Pramila were also travelling in the said vehicle. At about 8:40 am, when the Mahatri Express reached village Jetha, a trailor bearing registration No.CG07-ZC-4564 4 (hereinafter called as 'offending vehicle') coming from opposite direction from Baradwar and being driven rashly and negligently by its driver- Raju Prasad Sahu, dashed the Mahatari Express, as a result of which, appellant- Fekulal sustained grievous injuries over his body and also suffered a fracture in his left leg, whereas deceased- Bindyabai succumbed to the injuries. At the time of accident, offending vehicle was owned by non-applicant No.2 and insured with non-applicant No.3. 3. On account of death of deceased- Bindyabai, a claim petition i.e. Claim Case No.54/2015 was filed by the claimants under Section 166 of the Motor Vehicles Act claiming compensation of Rs.1,16,70,000/- under various heads inter alia stating that at the time of accident, she was engaged in the business of Milk production and was earning Rs.24,000/- per month. The learned 2nd Additional Motor Accident Claims Tribunal, Sakti, District Janjgir-Champa, C.G., C.G., after considering the evidence led by the parties, by the impugned award granted a total compensation of Rs.12,72,000/- with interest @ 9% p.a from the date of application till its realization, while fastening the liability upon the Insurance Company / non-applicant no.3. 4. Similarly, in the said accident, appellant-Fekulal sustained grievous injuries and, therefore, filed a claim petition i.e. Claim Case No.11/2016 under Section 166 of the Motor Vehicles Act claiming compensation of Rs.15,21,000/- under various heads inter alia stating that at the time of accident, he was earning 5 Rs.9,000/- per month by working as a Carpenter. The learned 2nd Additional Motor Accident Claims Tribunal, Sakti, District Janjgir- Champa, C.G., C.G., after considering the evidence led by the parties, by the impugned award granted a total compensation of Rs.2,95,390/- with interest @ 9% p.a from the date of application till its realization, while fastening the liability upon the Insurance Company / non-applicant no.3. Aggrieved by the said awards, Insurance Company has preferred separate appeals before this Court. 5. Learned counsel for the Insurance company submits that the Tribunal erred in fastening liability on the insurer despite the admitted fact that the offending vehicle did not possess a valid permit on the date of the accident. He further submits that although the owner subsequently paid the permit fees and penalty and got the permit validated with retrospective effect, but such post-facto compliance cannot cure the breach that had already occurred on the date of the accident. In support of his contention, reliance has been placed on the judgment of the Kerala High Court in New India Assurance Co. Ltd. v. Sabu reported in AIR 2019 Ker 9, wherein it has been held that in the absence of a valid permit, the insurance company cannot be made liable to indemnify the owner, as such use of the vehicle amounts to a clear violation of the statutory terms of the policy. It is, therefore, urged that the Tribunal failed to appreciate that the breach went to 6 the root of the contract of insurance, and the liability ought to have been fixed upon the driver and owner of the offending vehicle. 6. On the other hand, learned counsel for the claimants supports the impugned awards and submits that the Tribunal, after evaluating the entire evidence on record, has rightly fastened the liability upon the Insurance Company, which needs no interference by this Court. 7. I have heard learned counsel for the parties and perused the record. 8. The primary question that arises for consideration in these appeals is whether the Tribunal was justified in fastening the liability upon the Insurance Company despite the admitted fact that the offending vehicle was being plied without a valid route permit on the date of the accident? 9. The records reveal, and it is not disputed, that on the date of the accident i.e., 27.04.2015, the offending vehicle was being operated without a valid permit. Although the owner of the vehicle subsequently paid the required fees and obtained a permit with retrospective effect, the same does not absolve the breach which had already occurred. It is well-settled that use of a transport vehicle without a valid permit amounts to a violation of Sections 66 and 84 of the Motor Vehicles Act, and such use is in breach of the policy conditions. In AIR 2019 Ker 9 (New India Assurance Co. Ltd. v. Sabu), the Kerala High Court has categorically held that even if the permit is obtained with retrospective effect, the insurer cannot be fastened with liability, as the vehicle was, in fact, 7 operating unauthorisedly on the date of the accident. The Hon’ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh , (2004) 3 SCC 297, and reiterated in Shamanna v. Divisional Manager, Oriental Insurance Co. Ltd. , (2018) 9 SCC 650 , has held that where there is a proven breach of policy condition by the insured, the insurer, though not liable to indemnify the insured, may still be directed to pay the compensation to the third party and recover the same from the insured. In the present case, the claimants are a third party and cannot be denied compensation due to breach of policy terms by the owner. However, the insurer has successfully proved such breach (lack of valid permit) and is entitled to recover the amount from the owner and driver of offending vehicle. 10. In view of the discussion above, this Court holds that the learned Tribunal erred in saddling the liability upon the appellant- insurance company without considering the proven breach of permit condition. Therefore, the finding of the Tribunal to that extent is liable to be set aside. However, in line with the settled position of law, the insurance company shall pay the compensation amount to the claimants in the first instance and shall be entitled to recover the same from the owner- Anupam Shah/non-applicant No.2 and driver- Raju Prasad Sahu/non- applicant No.1 of the offending vehicle in accordance with law. 11. In the result, both the appeals filed by the insurance company are allowed. The impugned awards passed by the learned claims Tribunal are modified to the above extent. Rest of the conditions of 8 the impugned awards shall remain in tact. 12. No order as to costs. Sd/- Sd/- (Amitendra Kishore Prasad) Judge Vishakha