Chattisgarh High Court
Vinod Kumar Bhagat vs Tedhu Ram on 9 April, 2025
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Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.15
15:12:17 +0530
2025:CGHC:16762
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1718 of 2017
1. Vinod Kumar Bhagat S/o Sukhram Bhagat, Aged About 33 Years
R/o Village Bumtel, Post Kharsota, Tahsil Manora District Jashpur,
Chhattisgarh .............. Owner
2. Arvind Ram Bhagat S/o Sukhram Bhagat, Aged About 27 Years
R/o Village Bumtel, Post Kharsota, Tahsil Manora, District
Jashpur, Chhattisgarh .............. Driver
... Appellants
versus
1. Tedhu Ram S/o Bhikhu Ram, Aged About 60 Years Caste Urao,
R/o Village Kharsota, Post Kharsota, Tahsil Manora, District
Jashpur, Chhattisgarh
2. Babulal S/o Tedhu Ram, Aged About 28 Years Caste Urao, R/o
Village Kharsota, Post Kharsota, Tahsil Manora, District Jashpur,
Chhattisgarh
3. Saroz Ram S/o Tedhu Ram, Aged About 26 Years Caste Urao,
R/o Village Kharsota, Post Kharsota, Tahsil Manora, District
Jashpur, Chhattisgarh
4. Kanta Bai D/o Tedhu Ram, Aged About 32 Years Caste Urao, R/o
Village Kharsota, Post Kharsota, Tahsil Manora, District Jashpur,
Chhattisgarh ...............Claimants
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5. Future General India Insurance Co. Ltd. Through Branch Manager
Office Code-2, Second Flore No. S-3 C.G.Plaza Agrasen Chowk
Bilaspur, District Bilaspur, Chhattisgarh
... Respondent(s)
For Appellants : Mr. Sanjay Agrawal, Advocate, along with
Ms. Vidhi Matlani, Advocate
For Respondents 1 to 4 : Mr. U. R. Koshley, Advocate, on behalf of
Mr. J. K. Saxena, Advocate
For Respondent No. 5 : Mr. Sourabh Sharma, Advocate, along with
Mr. Chitram Sahu, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal, J.
Order On Board
09/04/2025
1. This appeal under Section 173 of the Motor Vehicles Act has been
preferred by owner and driver challenging the award dated
08.09.2017 passed by the Motor Accident Claims Tribunal, Jashpur
(C.G.) in Claim Case No.03/2017.
2. The facts, in brief, necessary for disposal of this appeal are that on
17.05.2016, deceased Jaggi Bai along with her companions were
travelling in the offending vehicle i.e. auto (Tempo) bearing
registration No. CG 14 MD 9166 from village Kharsota to Jashpur to
sell vegetables. On account of rash and negligent driving of
Appellant No.2 Arvind Ram Bhagat, Jaggi Bai was thrown out of
the said Auto on the road near village Jaria and suffered grievous
injuries on her forehead and chest and died during treatment in
District Hospital, Jashpur. The claimants who are the husband and
children of the deceased preferred a claim application before the
Tribunal claiming compensation of Rs.29,55,000/-. Learned
Tribunal, on a close scrutiny of the evidence brought on record,
awarded total compensation of Rs.4,65,000/- with interest @ 9%
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per annum, from the date of application till its realization, in favour
of the claimants.
3. While passing the impugned award, the Tribunal has exonerated the
Insurance Company on the ground of breach of insurance policy
conditions and fastened the liability of payment of compensation
jointly or severally upon the owner and driver, against which the
present appeal has been filed by the owner and driver.
4. Learned counsel for the appellants submits that the Tribunal has
erred in exonerating the Insurance Company on the ground that at
the relevant point of time, the driver did not have a valid and
effective driving licence and the vehicle was being operated without
valid permit, whereas the driver had a valid driving licence at the
time of accident and permit was not required for the offending
vehicle i.e. Auto. Hence, prayed for allowing the appeal.
5. On the other hand, it has been argued on behalf of learned counsel
appearing for the Insurance Company that in the facts and
circumstances of the case, the finding of the Tribunal regarding
liability is just and proper and requires no interference in the same.
6. Learned counsel appearing for the respondents 1 to 4/claimants
prays for issuance of an order of “pay and recover” in case breach
of policy condition is found.
7. So far as valid and effective driving licence is concerned, the
Tribunal has held that at the time of accident the vehicle was being
used as a passenger carrying vehicle for which the driver did not
have a valid licence as he had a licence of Light Motor Vehicle
(LMV). However, in the light of the judgment of the Hon’ble
Supreme Court in the case of Mukund Dewangan Vs. Oriental
Insurance Company Limited, (2017) 14 SCC 663, the said finding
of the Tribunal would not be sustainable.
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8. As regards valid permit, Law Officer Sunil Gananayak (NAW-1) has
been examined on behalf of the Insurance Company who has
stated that no permit was issued for the offending vehicle for the
relevant period. In his cross-examination, this witness has denied
the suggestion that no permit is required for the offending vehicle. In
para-11 of its award the Tribunal has held that during cross-
examination the owner and driver remained silent and no document
has been produced by them to show that any permit was issued by
the RTO to the offending vehicle for the relevant period. As per the
insurance policy Ex.D-1, the offending vehicle was insured as a
passenger carrying vehicle for which permit is required but no
permit was issued for the said vehicle. As such, on the date of
incident, the offending vehicle was being operated in violation of
the insurance policy condition. Therefore, the insurance Company is
not liable for payment of compensation.
9. As regards the prayer of the claimants for an order of “pay and
recover”, admittedly, the offending vehicle was duly insured with the
Insurance Company but due to breach of policy condition the
Insurance Company has been exonerated from its liability. However,
considering the principles laid down by the Hon’ble Supreme Court
in the case of Amrit Paul Singh and Another Vs. Tata AIG
General Insurance Company Limited and others reported in
(2018) 7 SCC 558 ordering the insurance company to pay first and
then recover and also taking note of the facts and circumstances of
the present case, particularly the fact that at the time of accident the
vehicle was insured with insurance company, this Court is of the
opinion that it would be appropriate to pass an order of pay and
recover.
10. Accordingly, it is directed that the Insurance Company of the
offending vehicle shall first pay the compensation awarded to the
claimants and then recover the same jointly or severally from the
driver and the registered owner of the vehicle in question.
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11. In the result, the appeal is partly allowed to the extend indicated
herein-above.
12. Records of the Tribunal along with a copy of this order be sent back
forthwith for compliance and necessary action, if any.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai