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2024 DIGILAW 338 (CHH)

Bhagtin Bai, W/o Mahaveer Kumar Sonwani v. Sanjay Suryawanshi, S/o Jageshwar Suryawanshi

2024-04-19

RADHAKISHAN AGRAWAL

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JUDGMENT ON BOARD : 1. Since both the appeals filed by the different claimants arise out of same accident that took place on 20.10.2015, therefore, they are being heard together and disposed of by this common judgment. 2. As per averments made in the claim petition filed by the Smt. Bhaktin Bai, claimant in MACT No.540/2017, on 20.10.2015, when deceased- Rohit Kumar Sonwani was going towards Ratanpur on his pulsar motorcycle bearing registration No.CG28-9554 (hereafter called as 'pulsar bike'). However, on the way, when he reached near Kanan Pindari, at that time, Sanjay Sooryavanshi/non-applicant No.1 by driving TVS moped bearing registration No.CG10-Y-0756 (hereinafter referred to as ‘offending vehicle TVS moped’) in a rash and negligent manner, came from opposite side and dashed against the pulsar bike of Rohit Kumar Sonwani, as a result of which, deceased-Rohit Kumar Sonwani sustained grievous injuries over his body and succumbed to the same. At the time of accident, the offending vehicle TVS moped was insured with non-applicant No.2 Bharti Axa Insurance Company Limited. 3. As per averments made in the claim petition filed by the Sanjay Sooryavanshi, claimant, in MACT No.564/2016, on 20.10.2015, when claimant-Sanjay Sooryavanshi, after completing his work was going towards his village Pendri via Bilaspur, Takhatpur, Main Road, on offending vehicle TVS moped and suddenly his mobile phone rang, then he stopped the offending vehicle TVS moped and was talking on the side of road, at that time, driver of the pulsar bike (deceased-Rohit Sonwani) by driving the same in a rash and negligent manner, dashed the offending vehicle TVS moped from back side, as a result of which, he sustained grievous injuries over his body, due to said injuries, he was admitted in CIMS Hospital, Bilaspur and thereafter, he was referred to Mundra Hospital, Bilaspur for better treatment where he remained from 21.10.2015 till 24.10.2015. In the said accident, the driver of pulsar bike (Rohit Kumar Sonwani) has died. At the time of accident, the pulsar bike was insured with non-applicant No.1 i.e. Bajaj Alliance General Insurance Company Limited and non-applicant No.2 has been arrayed as legal heirs of deceased-Rohit Kumar Sonwani. 4. In the said accident, the driver of pulsar bike (Rohit Kumar Sonwani) has died. At the time of accident, the pulsar bike was insured with non-applicant No.1 i.e. Bajaj Alliance General Insurance Company Limited and non-applicant No.2 has been arrayed as legal heirs of deceased-Rohit Kumar Sonwani. 4. On account of death of deceased-Rohit Kumar Sonwani, a claim petition (MACT No.540/2017) was filed by the claimant under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.22,70,000/- inter alia pleading that at the time of accident, deceased- Rohit Kumar Sonwani was aged about 19 years and was earning Rs.10,000/- per month by working as driver. The said claim petition was registered as MACT No.540/2017, in which, vide impugned award dated 07.03.2019, learned 6th Additional Motor Accident Claims Tribunal, Bilaspur, after considering the evidence available on record, awarded a compensation of Rs.9,77,200/- to the claimant with interest at the rate of 7.5% per annum from the date of application till its realization and fastened the liability upon the non- applicant No.1 i.e. Sanjay Sooryavanshi, driver and owner of the offending vehicle TVS moped while exonerating non-applicant No.2/Insurance Company-Bhartiya Axa Insurance Company Ltd. Hence, the claimant preferred an appeal seeking enhancement of compensation as well as fastening liability upon the Insurance Company. 5. Similarly, on account of injuries sustained by the claimant-Sanjay Sooryavanshi in the same accident, a claim petition (MACT No.564/2016) was filed by him under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.35,00,000/- inter alia pleading that at the time of accident, injured-Sanjay Sooryavanshi was aged about 22 years and was earning Rs.10-12,000/- per month by working in H.P. Gas Company, Bilaspur. The said claim petition was registered as MACT No.564/2016, in which, vide impugned award dated 17.05.2019, learned 6th Additional Motor Accident Claims Tribunal, Bilaspur, after considering the evidence available on record, dismissed the claim petition filed by the injured-Sanjay Sooryavanshi. Hence, he preferred a separate file being MAC No.1204/2019. 6. Ms. The said claim petition was registered as MACT No.564/2016, in which, vide impugned award dated 17.05.2019, learned 6th Additional Motor Accident Claims Tribunal, Bilaspur, after considering the evidence available on record, dismissed the claim petition filed by the injured-Sanjay Sooryavanshi. Hence, he preferred a separate file being MAC No.1204/2019. 6. Ms. Astha Sharma, learned counsel for the appellant/claimant in MAC No.820/2019 submits that though she has raised various grounds in the memo of appeal, however, she is not pressing all those grounds and is assailing the impugned award on the grounds that the Tribunal has wrongly exonerated the Insurance Company/non-applicant No.2 Bharti Axa Insurance Company of its liability on the ground that the insurer has been able to prove the breach of policy conditions by non- applicant No.1 Sanjay Soorayavanshi as he did not possess the valid and effective driving licence to drive the offending vehicle TVS moped. She further submits that accident was reported to the police station against the driver of the offending vehicle TVS moped/non-applicant No.1-Sanjay Sooryavanshi and after investigation, charge sheet has been filed against the non-applicant No.1-Sanjay Soorayavanshi. She also submits that as per the evidence of NAW-1 Sanjay Sooryavanshi (non-applicant No.1), he was having valid and effective driving licence on the date of accident and his licence was issued from Lagra, Bilaspur in the year 2013, but the same was found to be misplaced by him and that the Insurance Company has not adduced any evidence from concerned RTO to rebut the defence taken by NAW-1 Sanjay Sooryavanshi and that the vehicle in question was being driven by non-applicant No.1-Sanjay Sooryavanshi in violation of the terms and conditions of the Insurance Policy. She also submits that the offending vehicle was duly insured with non-applicant No.2-Bharti Axa Insurance General Company Ltd. on the date of accident. In these circumstances, the Tribunal ought to have fastened the liability on non-applicant No.2/Insurance Company i.e. Bharti Axa Insurance Company Limited. Alternatively, she submits that if any breach was proved by the Insurance Company, then in the given facts and circumstances of the case, order of pay and recover may be passed in this case. Reliance has been placed on the decision of this Court in the matter of Branch Manger, National Insurance Company Limited vs. Shabana Khan and others passed in MAC No.322 of 2015 on 21.09.2022. 7. Mr. Reliance has been placed on the decision of this Court in the matter of Branch Manger, National Insurance Company Limited vs. Shabana Khan and others passed in MAC No.322 of 2015 on 21.09.2022. 7. Mr. Harshmander Rastogi, learned counsel for the Insurance Company of offending vehicle TVS moped/non-applicant No.2 i.e. Bharti Axa Insurance Company Ltd in MAC No.820/2019 opposes the contentions made by the appellant's counsel and submits that at the time of accident, non-applicant No.1 Sanjay Sooryavanshi was not possessing valid and effective driving licence to drive the offending vehicle TVS moped and that there was breach of policy conditions by the non-applicant No.1. Therefore, the Tribunal, considering the overall evidence, oral and documentary, available on record, has rightly exonerated the Insurance Company/non-applicant No.2- Bharti Axa Insurance Company Ltd. of its liability, which needs no interference by this Court. 8. Mr. Anand Kesharwani, learned counsel for the Sanjay Sooryavanshi (appellant/claimant in MAC No.1204/2019 and respondent No.1 in MAC No.820/2019) submits that the offending vehicle pulsar bike of deceased-Rohit Kumar Sonwani was insured with Bajaj Allianz General Insurance Company Ltd. and at the time of accident, the said pulsar bike was being driven by deceased-Rohit Kumar Sonwani in a rash and negligent manner and dashed against him while he was talking over phone with somebody on the side of road and despite there being no fault on his part, the learned claims Tribunal was unjustified in dismissing his claim petition seeking compensation while fastening liability upon him. He further submits that at the time of accident, Sanjay Sooryavanshi was having valid and effective driving licence to drive the offending vehicle TVS moped and that the said offending vehicle was insured with non-applicant No.2/Bharti Axa Insurance Company Ltd. Therefore, in case of any liability, the same could be indemnified by the said Insurance Company. Thus, he prayed that suitable compensation may be awarded in his favour while exonerating him from liability. 9. Mr. Sangeet Kumar Kushwaha, learned counsel for the respondent No.1/Bajaj Allianz General Insurance Company Ltd. in MAC No.1204/2019 submits that the claimant-Sanjay Sooryavanshi has filed claim petition under Section 166 of the Motor Vehicle Act, therefore, he is under obligation to prove that the vehicle pulsar bike was being driven by the deceased-Rohit Kumar Sonwani in a rash and negligent manner, but the claimant-Sanjay Sooryavanshi has failed to prove its case. He further submits that non-applicant No.1/ Bajaj Allianz General Insurance Company Ltd. is the insurer of offending vehicle pulsar bike which was being driven by deceased-Rohit Kumar Sonwani, but the FIR (Ex.P-3) has been lodged against the claimant- Sanjay Sooryavanshi and after investigation by police, charge sheet has been filed against the claimant-Sanjay Sooryavanshi before the competent Judicial Magistrate Court and that claimant has not filed any document or reliable evidence showing that the said pulsar bike was being driven by deceased- Rohit Kumar Sonwani in a rash and negligent manner causing the accident. Therefore, the learned claims Tribunal, after appreciating the evidence available on record, has rightly dismissed the claim petition filed by the claimant- Sanjay Sooryavanshi, which needs no interference by this Court. 10. I have heard learned counsel for the parties and perused the records of the claim cases carefully. 11. In order to appreciate the arguments, I shall deal with the evidence led by the parties. A perusal of contents of FIR (Exs.P-2 & P-3) would reveal that offence under Section 304-A of IPC was registered against the driver and owner of the offending vehicle TVS moped i.e. Sanjay Sooryavanshi and further perusal of its contents would also reveal that it was Sanjay Sooryavanshi because of whose negligence accident took place, as a result of which, the driver of pulsar bike i.e. deceased- Rohit Kumar Sonwani has lost his life. Contents of FIR (Exs.P-2 & P-3) also find corroboration from contents of final report which has been submitted before the Judical Magistrate, Bilha, Bilaspur. Though NAW-1 Sanjay Sooryavanshi has stated in his statement that he was standing on the side of road and was taking over mobile, at that the time, the driver of the pulsar bike (deceased-Rohit Kumar Sonwani) came from wrong side and dashed him, as a result of which, he suffered grievous injuries over his body, but in his cross-examination, he has admitted that offence under Section 304-A of IPC was registered against him at police Station Chakarbhata and a criminal case is also pending against him and at the time of accident, police had seized offending vehicle TVS moped along with documents from him. He has also admitted that though he had filed report before Police Station Sakri and before Superintendent of Police that without proper investigation, false case was filed against him, but he has not filed any copy of complaint before the Tribunal. Therefore, the learned claims Tribunal after appreciating the material available on record, held that on 20.10.2015, the accident occurred on account of rash and negligent driving of offending vehicle TVS moped by its driver and owner i.e. non-applicant No.1 Sanjay Sooryavanshi, as a result of which, deceased-Rohit Kumar Sonwani has died on account of grievous injuries sustained by him and that there was no contributory negligence on the part of deceased-Rohit Kumar Sonwani. Therefore, I am of the view that the said findings recorded by the claims Tribunal are findings of fact based on evidence and material documents available on record and I hereby upheld the said findings of claims Tribunal with respect to accident. 12. Now the question that arises for consideration as to whether the Tribunal was justified in fastening the liability upon the non-applicant No.1 Sanjay Sooryavanshi? 13. A perusal of impugned award would reveal that the learned claims Tribunal in its award para 15 held that after the accident, non- applicant No.1 Sanjay Sooryavanshi has not filed any driving licence during course of investigation and that as per the statement of Ramesh Sinha {NAW-2(1)}, Law Officer of Insurance Company-Bharti Axa General Insurance Company Ltd., that on the date of accident, the driver of the offending vehicle was not possessing valid and effective driving licence to drive the offending vehicle TVS moped, therefore, considering his evidence, the Tribunal has fastened the liability upon non-applicant No.1 Sanjay Sooryavanshi on the ground of breach of policy conditions while exonerating the Insurance Company from its liability. However, NAW-1 Sanjay Sooryavanshi has stated in his evidence that his driving licence was issued from the Office of RTO Lagra, Bilaspur. He further deposed that the said licence was found misplaced, therefore, he could not produce the same during course of investigation. On the other hand, NAW-2(1) Ramesh Sinha, Law Officer of Bharti Axa General Insurance Company Ltd. has stated that on the date of accident, driver and owner of the offending vehicle TVS moped was not possessing valid and effective driving licence. On the other hand, NAW-2(1) Ramesh Sinha, Law Officer of Bharti Axa General Insurance Company Ltd. has stated that on the date of accident, driver and owner of the offending vehicle TVS moped was not possessing valid and effective driving licence. He has also stated that he has moved an application under RTI to Regional Transport Authority, Bilaspur through Investigator Lalit Tehlani for obtaining information regarding driving licence of driver and owner of the offending vehicle TVS moped, but in his cross-examination, he admitted that concerned RTO Bilaspur did not send any reply on his application filed under RTI and further admitted that Insurance Company has also not sent any information to the driver and owner of the offending vehicle TVS moped for producing licence. 14. The Hon'ble Supreme Court in the case of National Insurance Co. Ltd. V. Swaran Singh, reported in (2004) 3 SCC 297 laid down parameters/guidelines while deciding the claim application by the Tribunal in clause (iii), (iv) & (vi) of paragraph 110, has held as under:- (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act. 15. Reverting to the facts of present case in the light of aforesaid decision rendered by the Supreme Court coupled with the evidence available on record, it is quite clear that though the Insurance Company/Non- applicant No.2-Bharti Axa Insurance Company Ltd. has pleaded that on the date of accident, non-applicant no.1 Sanjay Sooryavanshi was driving the offending vehicle without having valid and effective licence, but no evidence whatsoever has been adduced by Insurance Company to substantiate the said pleading. As per final report submitted by Police Station Chakarbhata before the Judicial Magistrate, Bilha, charge sheet has been filed against the driver & owner of offending vehicle TVS moped/non-applicant No.1 for the offence under Section 304-A of IPC, whereas no offence was registered against the driver & owner of offending vehicle TVS moped/non-applicant No.1 under Motor Vehicles Act, 1989 for not having a valid and effective licence. Moreover, NAW- 2(1) Ramesh Sinha, Law Officer of Insurance Company himself admitted that Insurance Company has also not sent any information to the driver and owner of the offending vehicle TVS moped for producing licence, this itself shows that Insurance Company did not take any initiative steps for obtaining driving licence of offending vehicle TVS moped from non-applicant No.1 Sanjay Sooryavanshi. Since the Insurance Company was raising a specific plea regarding breach of policy conditions, the burden lies upon it to prove the same by adducing cogent and reliable evidence, but Insurance Company has failed to do so. 16. For all the aforesaid reasons and keeping in view the judgment of the Hon’ble Supreme Court in Swaran Singh (supra), this Court is of the opinion that the Insurance Company has completely failed to discharge its duty to obtain driving licence either from the driver and owner of the offending vehicle TVS moped or from the office of RTO Lagra, Bilaspur and that there was any breach of policy conditions by non-applicant No.1 Sanjay Sooryavanshi. Therefore, I am of the considered opinion that the Tribunal was not justified in exonerating the Insurance Company/non-applicant No.2-Bharti Axa Insurance Company Ltd. of its liability while fastening the same on non-applicant No. 1 Sanjay Sooryavanshi. Thus, it is held that non-applicant No.2/Insurance Company- Bharti Axa General Insurance Company Ltd. is liable to pay the compensation to the claimant in MAC No.820/2019 as awarded by the Claims Tribunal. Accordingly, the appeal (MAC No.820/2019) filed by the claimant deserves to be and is hereby allowed in part to the above extent. Consequently, the Insurance Company- Bharti Axa General Insurance Company Ltd. shall pay the amount of compensation to the claimant as awarded by the Tribunal i.e. Rs.9,77,200/- along with interest at the rate of 7.5% per annum from the date of filing of claim petition till its realization in MAC No.820/2019 within a period of 30 days from today. 17. As regards the appeal (MAC No.1204/2019) filed by the Sanjay Sooryavanshi claiming compensation, since this Court has already held in preceding paragraph that it is the claimant-Sanjay Sooryavanshi, who on the date of incident, by driving the offending vehicle TVS moped in a rash and negligent manner caused the accident, as a result of which, deceased- Rohit Kumar Sonwani suffered grievous injuries and succumbed to the same. 18. In view of what has been stated above, the appellant- Sanjay Sooryavanshi is not entitled for any compensation and the learned claims Tribunal was justified in dismissing his claim petition. Consequently, MAC No.1204/2019 filed by Sanjay Sooryavanshi is liable to be and is hereby dismissed being without merit. 19. 18. In view of what has been stated above, the appellant- Sanjay Sooryavanshi is not entitled for any compensation and the learned claims Tribunal was justified in dismissing his claim petition. Consequently, MAC No.1204/2019 filed by Sanjay Sooryavanshi is liable to be and is hereby dismissed being without merit. 19. In the result, MAC No.820/2019 is allowed in part to the extent indicated herein above, whereas MAC No.1204/2019 being without any substance is liable to be and is hereby dismissed.