The Oriental Insurance Co. Ltd vs Bhaiyya
2023 Latest Caselaw 606 Chatt

                                           1

                                                                              NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                                    MA(C) No. 643 of 2016

   • The Oriental Insurance Co. Ltd., through its Divisional Manager, Divisional
     Office, 1st Floor, Rama Trade Centre, Near Bus Stand, Bilaspur, Civil and
     Revenue District Bilaspur, Chhattisgarh Pin 495001.

                                                                     ---- Appellant

                                        Versus

  1. Bhaiyya, S/o Ratiram Netam, Aged about 28 years, R/o Haradula, P.S.
     Charama, District Kanker Chhattisgarh.

  2. Dhruv Sen, S/o Narendra Sen, Aged about 23 Years R/o Ranchirai Balod,
     District Balod, Chhattisgarh.

  3. Pawan Kumar Sahu, S/o Devdhar Sahu, C/o Mahendra Kumar Verma,
     House No. 7, SBI Colony, Dharampura Road, Jagdalpur, District Bastar
     Chhattisgarh.

                                                                  ---- Respondents

        For Appellant           :       Mr. R.N. Pusty, Advocate.
        For Respondent No.1     :       Mr. Praveen K. Dhurandhar, Advocate.
        For Respondent No.2     :       Mr. Sumit Shrivastava, Advocate.
        For Respondent No.3     :       None.


                   Hon'ble Shri Justice Arvind Singh Chandel

                                    Order on Board

31/01/2023

1. With the consent of counsel for both the parties, heard finally.

2. The Appellant/Insurance Company has been filed the instant

appeal under Section 173 of the Motor Vehicles Act, 1988

challenging the impugned award dated 10.02.2016 passed in Motor

Accident Claim Case No.32/2014 by the Motor Accidental Claims

Tribunal, North Bastar, Kanker, District Kankar (C.G.), whereby the

Tribunal has awarded total sum of Rs.3,96,600/- (Three Lakh

Ninety Six Thousands and Six Hundreds Rupees) as compensation

to respondent No.1/Bhaiyya in injury case.

3. The brief facts of the case is that, the claimant/respondent No.1 has

filed a Claim Petition under Section 166 of the Motor Vehicles Act

on the allegation inter alia, that he is working as truck driver in

Shankar Rice Mill. On 21.09.2013, while he was going to his home

by a motorcycle, respondent No.2 allegedly driving a Tipper Truck

bearing registration No.CG 17-H 2671 rashly and negligently

dashed the motorcycle over the Mahanadi Bridge. As a result of

said accident, the claimant received multiple injuries on his head

and other parts of the body. He received treatment in various

hospitals till 02.10.2013. It is also alleged that a rod was inserted in

his leg during operation. The offending vehicle was owned by

respondent No.3 and the appellant herein was the Insurer of the

offending vehicle, the respondent No.1/Claimant claimed the

amount of Rs.4,65,000/- as compensation.

4. The owner and driver of the offending vehicle have filed their written

statements and denied the averment of the claimant. It was further

pleaded by them that as the truck's driver was holding valid and

effective driving licence and the offending vehicle was insured with

the appellant herein, therefore, the liability, if any, would be that of

the Insurer.

5. Learned counsel for the Appellant/Insurance Company has filed its

written statement had denied all the material allegations. It was

pleaded that there was a breach of the terms and conditions of the

policy as the driver was driving the insured vehicle without having

valid and effective driving licence and there was a contributory

negligence also on the part of the claimant.

6. On the basis of pleadings of the parties, the Tribunal framed the

issues and after recording the evidence of both the parties vide

impugned award dated 10.02.2016 grant of award of Rs.3,96,600/-

in favour of the claimant/respondent No.1. Hence, this appeal has

been preferred by the Appellant/Insurance Company.

7. Learned counsel for the appellant submits that the learned Tribunal

wrongly fastening the liability on the Insurance Company to first pay

the compensation to the Claimant and then recover the same from

the owner of the offending vehicle. It is further submitted that once it

was established that there was a breach of terms and conditions of

the policy, the Insurance Company ought to have been exonerated

from any liability relying the judgment passed by the Hon'ble

Supreme Court in the case of Oriental Insurance Company Limited

Versus Nanjappan (2004)13 SCC 224, it is further argued by

learned counsel that, this appeal may be disposed of directing the

Executing Court to take adequate security from the owner before

passing any order for releasing the amount to be paid by the

Insurer in terms of the award as entire compensation amount has

already been deposited by the appellant/Insurance Company

before the Tribunal.

8. Learned counsel appearing on behalf of respondent No.2 supported

the impugned judgment of learned Tribunal. Relying the judgment

passed by the Hon'ble Supreme Court in the case of Samanna and

Another Versus Divisional Manager, Oriental Insurance Company

Limited & Others (2018) 9 SCC 650, it is submitted by learned

counsel that the Tribunal has rightly fastened the liability on

Insurance Company and directed firstly to pay and then it will be

recovered from the owner of the offending vehicle.

9. I have heard and perused the record of the Claim Tribunal.

10. Undisputedly, the offending vehicle was the vehicle of the HGV

(Heavy Goods Vehicle) Category and the driver of the offending

vehicle possess the driving licence of LMV (Light Motor Vehicle)

Category, therefore, the Tribunal rightly arrived on the conclusion

that there was a breach of insurance policy, therefore, relying the

judgment of National Insurance Company Limited Versus Swaran

Singh and Others (2004) 3 SCC 297, learned Tribunal has rightly

directed the Insurance Company firstly to pay the compensation to

the Claimant then, it will be recovered from the owner of the

offending vehicle. I do not find any infirmity in the finding recorded

by the learned Tribunal.

11. As agreed by the counsel for both the parties, in the light of the

judgment passed by the Hon'ble Supreme Court in the matter of

Nanjappan (supra), the Executing Court is directed to disburse the

awarded amount to the Claimant as per the terms and conditions

held by the Hon'ble Supreme Court in the matter of Nanjappan

(supra). Thereafter, the Insurance Company will be at liberty to

recover the same from the insured.

12. Accordingly, the instant appeal stands disposed of.

Sd/-

(Arvind Singh Chandel) Judge

Vasant