Chattisgarh High Court
The New India Assurance Company Limited vs Shivmangal Rajwade on 4 April, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.07
15:26:53 +0530
2025:CGHC:15977
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1106 of 2019
The New India Assurance Company Limited Through Its Branch
Manager, Branch Office- Ambika Transport, Ambika Petrol Pump
Parisar, Ambedkar Nagar Chowk, Banaras Road, Ambikapur,
District Surguja Chhattisgarh.
... Appellant
versus
1. Shivmangal Rajwade S/o Dilbharan Rajwade Aged About 30
Years Caste Rajwar, Occupation Business, R/o Village Khopa,
O.P. Karanji, Police Station Bishrampur, Tahsil And District
Surguja, Chhattisgarh.
2. Chandravati Devi W/o Shivmangal Rajwade Aged About 28 Years
Housewife, R/o Village Khopa, O.P. Karanji, Police Station
Bishrampur, Tahsil And District Surguja Chhattisgarh
3. Dilbharan Rajwade S/o Bahoran Rajwade Aged About 55 Years
R/o Village Khopa, O.P. Karanji, Police Station Bishrampur, Tahsil
And District Surguja Chhattisgarh
4. Sushila W/o Dilbharan Rajwade Aged About 52 Years House Wife,
R/o Village Khopa, O.P. Karanji, Police Station Bishrampur, Tahsil
And District Surguja Chhattisgarh
5. Poonam Chand Sharma S/o Bhagirathi Prasad Sharma Aged
About 57 Years Occupation Service, R/o Village Salka, Police
Station Bhatgaon, District Surajpur Chhattisgarh (Owner)
2
6. Puranram Dewangan S/o Rambharos Dewangan Aged About 51
Years R/o Village Adhina Salka, Police Station Bhatgaon, District
Surajpur Chhattisgarh (Driver)
... Respondent(s)
For Appellant : Mr. Dashrath Gupta, Advocate
For Respondents : Mr. Divyanand Patel, Advocate, on behalf of
5&6 Mr. Rishikant Mahobia, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal, J.
Order on Board
04.04.2025
1. This is an Insurer's appeal against the award dated 20.02.2019
passed by learned 2nd Additional Motor Accident Claims Tribunal,
Surajpur (C.G.) in Claim Case No.98/2017.
2. In this case, the accident took place on 11.08.2017 at about 5:00
p.m., when deceased Rampratap (a student aged about 05 years)
after getting down from the offending vehicle bearing registration
No.CG 15 AD 0553 was crossing the road to go to his house, the
driver of the said vehicle i.e. respondent no.6 drove the vehicle
rashly and negligently and after hitting Rampratap crushed him, as
a result of which, he suffered grievous injuries and died on the spot.
The claimants who are parents and grandparents of the deceased
preferred a claim application before the Tribunal claiming
compensation of Rs.15,50,000/-. Learned Tribunal, on a close
scrutiny of the evidence available on record, award a total
compensation of Rs.4,80,000/- in favour of the claimants with
interest @ 9% per annum, from the date of application till its
realization. While passing the impugned award, the Tribunal has
saddled the liability of payment of compensation upon the
Insurance Company against which the present appeal has been
filed by the Insurance Company.
3. Learned counsel appearing for the appellant-Insurance Company
submits that the offending vehicle was being used for transporting
school children for which there was no permit. Therefore, operating
the vehicle without a permit is a violation of the insurance
conditions. He submits that the burden of proof placed on the
insurance company by the Tribunal is erroneous as the insurance
conditions were violated by operating the vehicle in the absence of
permit. In such a situation, the insurance company is not liable for
payment of any compensation. Therefore, prays for allowing the
appeal by exonerating the Insurance Company from its liability.
4. Learned counsel for respondents No. 5 and 6 submits that the
award passed by the tribunal is based on proper appreciation of
evidence and there is no error of any kind in it. The argument of the
appellant insurance company is not acceptable. Hence, the appeal
is liable to be dismissed.
5. Heard learned counsel for the parties and perused the record.
6. In this case, deceased Rampratap was a 5 year old student. On
behalf of the claimants, the father of the deceased, Shivmangal
Rajwade and spot witness Mohitram Rajwade have been examined
whereas on behalf of the appellant insurance company, Investigator
Anoop Mehta and Branch Manager B. R. Bhagat have been
examined. The registration certificate of the offending vehicle
Exhibit-NA 02, the driving license of driver Puranram Exhibit-NA 03
and the policy Exhibit NA 04 have been produced on behalf of the
Insurance Company. From the entire pleadings and evidence of
both the parties, it is clear that at the time of incident, the offending
vehicle was being used for transporting school students. On the
date of incident, when 5 year old Rampratap was getting down from
the offending vehicle and going, the accident took place. According
to the insurance company's witnesses, Investigator Anoop Mehta
and Branch Manager B. R. Bhagat, a permit was required for the
said vehicle but there was no permit. The registered owner and the
driver of the offending vehicle have not pleaded in their reply
regarding the availability of permit of the offending vehicle. The
witnesses of the insurance company have also been cross-
examined but no suggestion has been made that permit for the
offending vehicle was available.
7. In the matter of Amrit Paul Singh and Another Vs. Tata AIG
General Insurance Company Limited and others reported in
(2018) 7 SCC 558, the necessity of permit and the burden of proof
of vehicle owner has been determined. In this regard, the Hon'ble
Supreme Court in paragraph-24 of the said judgment has observed
as follows:-
"24. In the case at hand, it is clearly demonstrable
from the materials brought on record that the vehicle at
the time of the accident did not have a permit. The
appellants had taken the stand that the vehicle was
not involved in the accident. That apart, they had not
stated whether the vehicle had temporary permit or
any other kind of permit. The exceptions that have
been carved out under Section 66 of the Act, needless
to emphasise, are to be pleaded and proved. The
exceptions cannot be taken aid of in the course of an
argument to seek absolution from liability. Use of a
vehicle in a public place without a permit is a
fundamental statutory infraction. We are disposed to
think so in view of the series of exceptions carved out
in Section 66. The said situations cannot be equated
with absence of licence or a fake licence or a licence
for different kind of vehicle, or, for that matter, violation
of a condition of carrying more number of passengers.
Therefore, the principles laid down in Swaran Singh
(supra) and Lakhmi Chand (supra) in that regard
would not be applicable to the case at hand. That
apart, the insurer had taken the plea that the vehicle in
question had no permit. It does not require the wisdom
of the "Tripitaka", that the existence of a permit of any
nature is a matter of documentary evidence. Nothing
has been brought on record by the insured to prove
that he had a permit of the vehicle. In such a situation,
the onus cannot be cast on the insurer. Therefore, the
tribunal as well as the High Court had directed the
insurer was required to pay the compensation amount
to the claimants with interest with the stipulation that
the insurer shall be entitled to recover the same from
the owner and the driver. The said directions are in
consonance with the principles stated in Swaran
Singh (supra) and other cases pertaining to pay and
recover principle."
8. Keeping in view the pleadings of both the parties and the evidence
presented in the case, in the light of the above judgment, it is clear
that the burden of proof was on the vehicle owner to establish the
fact that the vehicle registered as commercial use or taxi had a
permit. But in this regard, neither any pleading was made by the
owner and the driver of the vehicle nor any evidence has been
presented.
9. Thus, the burden of proof has not been discharged by the vehicle
owner. The burden of proof saddled on the insurance company by
the Tribunal is not found to be appropriate. The insurance
conditions have been violated by driving the vehicle without a
permit. Therefore, the Insurance Company is not primarily liable for
payment of compensation. But the offending vehicle was duly
insured by the appellant-Insurance Company. Therefore, in the light
of the principles laid down by the Hon'ble Supreme Court in the
case of Amrit Paul Singh (supra), it is directed that the Insurance
Company shall first pay the amount of compensation awarded to
the claimants and then recover the same from the driver and the
registered owner of the offending vehicle jointly or severally.
10. Accordingly, the appeal is partly allowed. The impugned award
stands modified to the above extent and rest of the conditions shall
remain intact.
11. 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
