M/s Sent Xaviers Public School Korba Assistant Manager, Chattarpal Singh Rathore v. Smt. Rani Shriwas

2 - Ku. Monika (Minor) D/o Late Arvind Shriwas Aged About 4 Years Through Natral Guardian, Her Mother Smt. Rani Shriwas, R/o Ramnagar, Shyahimudi, Tahsil- Katghora, District-Korba,Chhattisgarh 3 - Ganesh Gir S/o Mangal Gir Aged About 48 Years R/o Gidhori, Police Station Urga, District- Korba, Chhattisgarh, Presently R/o Shankar Nagar, Rajgamar Road, Police Sta- Chhattisgarh............(Driver) tion Balco, And District- Korba, Tahsil 4 - The Oriental Insurance Company Limited Through Branch Manager, The New India Insurance Company Limited, Geetanjali Building Main Road, Old Bus Stand, Tahsil And District- Korba, Chhattisgar.......(Insurer) ... Respondents ----------------------------------------------------------------------------------------------------- For Appellant For Respondent no. 1& 2 : Mr. Dharmendra, Advocate For Respondent No. 3 : None For Respondent no. 4 : Mr. Mirza Kaiser Baeg, Advocate : Mr.Akash Shrivastava, Advocate appears on behalf of Mr. R.N. Pusty, Advocate ----------------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge

19.11.2024 Order on Board

1. Owner of the offending vehicle has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'Act of 1988'), challenging the impugned award dated 15.05.2018, passed by Learned Additional Motor Accident Claim Tribunal Katghora, 2 District Korba (C.G.) in Claim Case No. 21/2016, whereby Tribunal allowed application filed under Section 166 of the Act of 1988 in part, calculated total compensation of Rs.7,01,000/- on account of death of Arvind Kumar Shriwas/deceased.

2. Facts relevant for disposal of this appeal are that on 22.07.2015 at about 3:00PM deceased Arvind Kumar Shriwas was going on his motorcycle from his village Ramnagar to NTPC Darri, when he reached near Petrol Pump SADA Colony Darri, got dashed by a School Bus bearing registration no. CG 12 – 9852 which was being driven by respondent no. 3 in a rash and negligent manner. Due to the said accident deceased Arvind Kumar Shriwas received grievous injuries and was subsequently died on the spot.

3. Respondents (therein) have denied all the contentions raised by the claimants by categorically stating that driver of the offending vehicle was not having a valid and effective driving licence whereas the offending vehicle was insured with the insurance company. Hence it is completely a breach of insurance policy.

4. Upon appreciation of pleadings and evidence placed on record by respective parties, Tribunal held that deceased died on account of rash and negligent driving of the school bus driver due to which he suffered grievous injuries and as a consequence died on the spot. Accordingly, Tribunal allowed application in part, awarded Rs.7,01,000/- with interest @ 7% per annum, fastened liability upon Repondent No. 2(therein) or appellant(herein) to pay the amount of compensation. 3

5. Learned counsel appearing for the appellant submits that claimants have totally failed to prove and establish their claim and has also failed to establish the fault of the appellant. He also contended that the insurance company cannot be enlarged of the liabilities only on the ground that the permit of the Bus was found to be invalid, as he stated that there is no need of permit for the school buses. Hence prays for passing the order of “pay than recover”.

6. Learned counsel appearing for the respondent no. 1,2 and 4 opposes the prayer made by the learned counsel for the appellant and contended that Claims Tribunal after taking into consideration documents placed on record by the Claimants have been awarded total amount of compensation Rs.7,01,000/-. Hence, amount of compensation awarded by the Tribunal to claimants cannot be said to be on lower side, rather it is just and proper in the given facts and circumstances of the case and does not call for any interference. Moreover the driver of the offending school bus was not having a valid permit at the time of accident, which is a clear breach of policy.

7. I have heard learned counsel for the parties at length, considered their rival submissions and perused the records with utmost circumspection.

8. In the instant case it is an undisputed fact that the offending school bus bearing registration no. CG 12- 9852 was insured at the time of accident, which the insurance company has itself accepted. But so far as the question of violation of insurance policy is 4 concerned, there is a dispute on whether the said bus had a permit or not. The witness, Chhatrapal Singh Rathore has stated that the bus had a permit from 03.07.2016 to 30.09.2016 which is after the incident. In this regard, the insurance company has got the examination od Assistant Grade III Sanjay Kumar Vartakar of District Transport Office Korba zone. Witness Sanjay Kumar Vartakar stated in para 3 of the main examination that according to the permit register, the permit of CG 12- 9852 has been issued from 04.07.2015 to 30.09.2015. On the date of accident, the permit was not issued to the said bus, thus it is clear violation of the rules of the insurance policy. Hence the insurance company is not liable to pay the amount of compensation that has been arisen out of the said claim petition. In the considered opinion of this court Tribunal has rightly exonerated the insurance company.

9. Looking to the fact that the deceased was a third party and Insurance Company has issued certificate of insurance and valid on the date of accident, therefore, in view of provision of Section 147 of the Motor Vehicles Act, 1988, it is the first duty of the insurer to satisfy the judgments and awards against persons insured in respect of third party risks. In view of the peculiar facts and circumstances of the case and in the light of the decision passed by Hon'ble Supreme Court in the matter National Insurance Co. Ltd. v. Swaran Singh and Others reported in (2004) 3 SCC 29 , it is directed that the insurance company would first satisfy the amount of compensation as awarded and thereafter recover the 5 same from the owner of the offending school bus in the same execution proceedings.

10. In the result, appeal is allowed in part and the award impugned stands modified to the extent indicated herein-above. (Arvind Kumar Verma) Judge sd/- Alfiza