Nafr High Court
Case Details
1 2025:CGHC:16745 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1546 of 2018 Judgment reserved on : 05.03.2025 Judgment delivered on : 09.04.2025 Digitally signed by RAMAKANT NIRALA 1 - The New India Insurance Company Ltd. Divisional Office Behind LIC Pandari Raipur, Chhattisgarh, Through Authorised Signatory for the New India Assurance (Insurance) Company Limited Bilaspur, Divisional Office, Opposite Rajiv Plaza Near Old Bus Stand Road Bilaspur, Chhattisgarh versus Appellant
Legal Reasoning
This Court in the matter of Patthar Singh (supra) held in 10 as under:- “10. So far as the order of “pay and recover” is concerned, Hon’ble Supreme Court in the case of Balu Krishna (supra) has held that the Tribunal should not mechanically pass an order of “pay and recover” in every case. Rather, it should be seen whether there is technical need for it or not. In paragraphs 8 & 10 of the said judgment it has been held as under:- “8. Hence, the only aspect for our consideration herein, is as to whether in the facts and circumstances of the present case, an order to direct the Insurance Company to “pay and recover”, is required to be made. On this aspect, the law is well settled that if the liability of the Insurance Company is decided and they are held not to be liable, ordinarily, there shall be no direction to “pay and recover”. However, in the facts and circumstances arising in each case, appropriate orders are required to be made by this Court to meet the ends of justice. 10. Therefore, on the legal aspect, it is clear that in all cases such order of “pay and recover” would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice.” 11. The learned Tribunal also found that on the date of incident on 6 22.10.2015, the driver of the offending vehicle did not possess the effective and valid licence to drive transport vehicle, but the learned Tribunal only on this ground that person who possesses light motor vehicle licence can driver transport vehicle. The learned Tribunal did not appreciate the weight of vehicle, which is as per registration certificate (Ex-D/2) is 16200, as such the vehicle is prima facie a heavy vehicle and driver did not have a valid and effective driving licence to driver heavy transport vehicle on the date of incident, as such the finding of the learned Tribunal with respect to the same is not sustainable. However, the learned Tribunal awarded just and proper compensation in favour of the claimants and interest rate of 9% awarded by the learned Tribunal is also just and proper 12. Thus, looking to the guidelines of the Hon’ble Supreme Court in the matter of Balu Krishna Chavan (supra) and looking to the facts and circumstances of the case, it is directed that the insurance company shall first pay compensation to the claimants and thereafter would be entitled to recover the same from the driver and owner of the offending vehicle i.e. respondent Nos.7 & 8. 13.
Arguments
1 - Smt. Koushilya Bai Wd/o Late Mohit Bariha Aged About 30 Years 2 - Minor Sonali D/o Late Mohit Bariha Aged About 6 Years 3 - Minor Luckky S/o Late Mohit Bariha Aged About 3 Years 4 - Minor Bhumika D/o Late Mohit Bariha Aged About 7 Years Respondent Nos.2 to 4 Through Natural Guardian (R-1) Mother Koushilya Wd/o Late Mohit Bariha 5 - Punitram Bariha S/o Baijuram Aged About 60 Years 6 - Mehttarin W/o Punitram Bariha Aged About 50 Years All above R/o Village Junvanikala Police Station Tehsil and District Mahasamund, Chhattisgarh 7 - Manohar Dhruv S/o Duklaha Aged About 26 Years R/o Village Mudiyadih Post Sirpur Police Station Tumgaon District Mahasamund, Chhattisgarh.................... Driver 8 - M/s Macadum Makers Infrastructure Private Limited Behind Apex Bank Pandri Raipur, Chhattisgarh…………………..Owner Respondent(s) 2 For Appellant : For Respondent Nos.1 to 6 : : For Respondent No.7 : For Respondent No.8 Mr. B. N. Nande, Advocate Mr. J. A. Lohani, Advocate None, though served Mr. Akash Pandey, Advocate Hon’ble Smt. Justice Rajani Dubey CAV Judgment 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant insurance company against the award 10.07.2018 passed by the learned Additional Motor Accident Claims Tribunal (FTC), Mahasamund in Claim Case No.69/2016, whereby claim of the claimants has been partly allowed and they were awarded Rs.9,77,200/- as compensation and the liability to pay compensation has been fastened upon the appellant insurance company. 2. Brief facts of the case are that a road mishap occurred on 22.10.2015 at 8 pm on Phuseradıh -Sirpur Road while a Dumper (Truck) bearing No.C.G04-G-3471 driven in rash and negligent manner by its driver namely Manohar Dhruv (R-7 herein) coming from opposite direction caused dash to a Motorcycle bearing No.C.G04-KY-7922 driven by one Mohit with a pillion rider by name Tiknu Khaivar resulting which alleged Driver of Motorcycle Mohit sustained grievous injuries and immediately taken to District Hospital Mahasamund wherefrom he was taken to Narayna Hospital, Raipur wherefrom he was further taken to Medical College Hospital Raipur for treatment and case police 3 case was registered against the driver of the offending vehicle. Subsequently, the family of the injured filed a claim petition before the learned Tribunal, which was allowed and the claimants were awarded Rs.9,77,200/- as compensation. 3. Learned counsel for the appellants submits that the impugned award is perverse, illegal and contrary to law. The finding recorded by the learned Tribunal suffers from perversity being contrary to pleadings and evidence on record and as such the same is liable to be set aside. The driver of the offending vehicle was not having driving licence for transport vehicle and as per driving licence (Ex-D/2), the driver was not having effective driving licence for the period 01.03.2014 to 29.11,2015, whereas the incident is of 22.10.2015, as such the policy conditions of the insurance company have been breached, but despite the same the liability to pay compensation has been fastened upon the appellant insurance company. The deceased who was driving motor cycle at the time of accident in question did not also possess Driving License but he was riding on motorcycle carrying a pillion rider too, but the said aspects of the matter have been ignored by the learned Tribunal, as such the appeal deserves to be allowed. Reliance has been placed on the judgment passed by this Court in MAC No.1295/2016 vide judgment dated 30.07.2024 in case of Branch Manager vs Patthar Singh and others and other connected matters. 4. Learned counsel for the respondent Nos.1 to 6 supports the 4 impugned award and submits that the learned Tribunal has minutely appreciated the oral and documentary evidence and rightly fastened liability upon the appellant insurance company to pay compensation to the claimants. Therefore, this appeal is without any merit and deserves to be dismissed. 5. Learned counsel for the respondent No.8 supports the impugned award. 6. No one appears on behalf of the respondent No.7 despite service of notice. 7. Heard learned counsel for the parties and perused the material available on record. 8. The learned Tribunal framed issue Nos.2 & 3 as under:- okn iz’u D;k vukosnd dz0 01 us ?kVuk fnukad fu"d"kZ izekf.kr 1 22&10&2015 dks yxHkx 8-00 cts jkf= dks fljiqj eksM+ esa xzke QqlsjkMhg ckck fdlkjke lekf/k LFky ds cksMZ ds ikl esa okgu MEQj Vªd dz0 lh0th0 04@th@3471 dks rsth o ykijokghiwoZd pykdj eksVj lk;fdy dz0 lh0th0 04 ds ok;0 7922 dks Bksdj ekjdj e`rd eksfgr cfjgk dks lka?kkfrd pksVs igqapk;h ftlls mldh e`R;q dkfjr gqbZ \ D;k vukosnd dz0 01 us ?kVuk fnukaWd dks 2- izekf.kr ugh okgu MEQj Vªd dz0 lh0th0 04@th@3471 dks fcuk oS/k Mªk;foax yk;lsal] ijfeV] fQVusl] jftLVªs’ku ,oa chek ikWfylh ds pkyu fd;k \ 9. The learned Trial Court found in para 16 that the driving licence 5 of the driver was not valid and effective for transport vehicle on the date of incident i.e. on 22.10.2015 but he possessed the valid licence for non transport vehicle. The learned Tribunal on the guidelines of the Hon’ble Apex Court in the matter of Mukund Dewas vs Oriental Insurance Company Ltd., reported in 2017 (4) TAC 11 (SC), found that a person who possesses light motor vehicle licence can driver the transport vehicle, but in this case it is clear that as per registration certificate (Ex-D/2), gross vehicle weight (gvw) is 16200 kg. 10.
Decision
In the result, the appeal is partly allowed. Nirala Sd/- Rajani Dubey Judge