Advocates:
['ASHUTOSH GHADE', '', 'DASHRATH GUPTA', 'H A P S Bhatia']

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MAC No. 449 of 2015

 The United India Insurance Company Limited Through Its Branch

Manager, Near Anupama Talkies, Jagdalpur, District Bastar,

Chhattisgarh

---- Appellant

Versus

1. Dhaneshwar Singh Kavde S/o Shri Sukkuram, R/o Rajur, Tokapal,

P.S. Parpa, District Bastar, Chhattisgarh (Driver/Owner)

2. Hungaram S/o Late Lakhma, S/o Bade Lakhpal, Post Bade

Lakhapal, P.S. Katekalyan, Tehsil Dantewada, District Dantewada,

Chhattisgarh, Present Address – Village Murkinaar, P.S. Bedre,

District Bijapur, Chhattisgarh (Claimant)

---- Respondents

For Appellant

:

Mr. Dashrath Gupta, Advocate

For Respondent no.2

:

Mr. H. A. P. S. Bhatia, Advocate

Hon'ble Shri Justice P. Sam Koshy

Order On Board

25.08.2022

1. The respondent no.1 i.e. the owner and driver of the offending vehicle

has remained ex parte both before the Tribunal as also before this

Court.

2. The instant is an appeal by the Insurance Company under Section

173 of the Motor Vehicle Act assailing the award dated 31.01.2015

passed in Claim Case No.25/2012 by the Motor Accident Claims

Tribunal, South Bastar, Dantewada. Vide the impugned award, the

Tribunal has quantified the compensation payable to the claimant at

Rs.1,21,345/- with interest @ 6% per annum from the date of

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application till the date of award. The amount of award was to be

deposited within a period of two months failing which there was a

penal interest awarded @ 9% per annum. It is this award dated

31.01.2015 which is under challenge in the present appeal.

3. The primary contention of the Insurance Company is that the

respondent no.1 i.e. the driver and owner of the offending vehicle

bearing registration No.CG19T0527 was not having a valid effective

licence to operate passenger carrying commercial vehicle. Secondly,

the vehicle did not have a valid permit and fitness certificate. In

support of its contention, the Insurance Company had led the

evidence of one Bhim Kumar Mandal who has categorically stated

before the Tribunal that the vehicle did not have proper permit and

fitness certificate nor did the driver and owner have a proper valid

effective licence to operate the passenger vehicle.

4. As regards the ground of the driver not having a valid effective

licence, it is revealed that at the relevant point of time the respondent

no.1 who was the owner and driver of the vehicle in fact had a licence

for driving LMV non-transport vehicle. 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

contention of the Insurance Company would not be sustainable and

the said ground stands answered in negative.

5. So far as the valid permit and fitness is concerned, undoubtedly, the

owner and driver was required to plead and prove in this regard that

he had a valid permit and fitness for operating the said commercial

vehicle. However, in spite of proper service, the respondent no.1 i.e.

the owner and driver of the vehicle chose not to contest the case and

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remained ex parte both before the Tribunal and also before this Court.

In the absence of any specific pleading and proof led by the owner

and driver, this Court is inclined to accept the contention of the

Insurance Company which they had taken from the initial stage and

had led evidence to that effect.

6. In the case of Amrit Paul Singh & another Vs. Tata AIG General

Insurance Company Limtied & others, (2018) 7 SCC 558, the

Hon’ble Supreme Court in paragraph-24 has held as under:

“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.