The High Court dismissed appeals by a driver and vehicle owner challenging an award which held the insurance company exempt from liability because the fatal accident occurred while the driver held only a learner's licence and was not accompanied by a licensed instructor.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MISC. APPEAL (C) NO. 152 OF 2011
… Appellants
versus
… Respondents
MISC. APPEAL (C) NO. 1221 OF 2010
… Appellants
versus
Hon'ble Shri Justice P. Sam Koshy
Order on Board
13/11/2017
1. The present two appeals under Section 173 of the Motor Vehicles Act, 1988, have been filed by the driver and owner of the offending vehicle, assailing the common award passed on 27.9.2010 by the Additional Motor Accident Claims Tribunal (F.T.C.), Rajnandgaon, in Motor Accident Claim Case Nos. 136/2009 and 137/2009.
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2. Vide the impugned award, the learned Tribunal, in an injury case, under Section 166 of the Motor Vehicles Act, has awarded a compensation of Rs.1,02,700/- to the claimant-Dumendra @ Domendra in Claim Case No.136/2009 and Rs.2,30,300/- to the claimant-Dileep Kumar in Claim Case No.137/2009, with interest thereon in both the cases at the rate of 6% per annum from the date of presentation of the claim application. While passing the award, the learned Tribunal has exonerated the insurance company of its liability and fastened the same upon the driver and owner of the offending vehicle.
3. The sole ground of exonerating the insurance company raised by the learned counsel for the appellants/driver and owner was that the driver of the offending Tractor, i.e., appellant no.1-Peela Singh, at the time of accident, was having only a learner's licence and that there was no person with a valid licence, as an instructor, available on board when the accident took place. Learned counsel for the appellants submits that it is a case where there is no proof adduced by the respondents to show that it was a breach on the part of the appellants while the offending vehicle was being driven at the time of accident and that there is only the evidence of one Shri Kishan Lal Rajak, the Manager of the Insurance Company, and whose evidence has been relied upon by the learned Tribunal. He further submits that the award deserves to be modified to the extent of at least applying the principle of 'pay and recovery'. He thus prayed for the award to be set aside and modified suitably.
4. Learned counsels appearing for the insurance company however opposing the appeals submit that it is a case where definite evidence has come before the learned Tribunal in respect of the fact that the driverPeela Singh at the time of accident only had a learner's licence and this aspect of the driver having only a learner's licence also stands established
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from his conviction that was made in the criminal case registered against him. It was further submitted on behalf of the insurance company that no evidence whatsoever have been produced by the appellants to disprove the fact that the driver was not having a valid licence and only a learner's licence and thus there is no scope of interference nor can the finding of the learned Tribunal be said to be erroneous or bad in law. They thus prayed for the rejection of the appeals.
5. At this juncture, it would be relevant to refer to a decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh & Others , 2004 (3) SCC 297 , wherein it has been held in paragraph 94 as under:-
6. Based on the decision in Swaran Singh (supra), this Court also in a couple of decisions in similar set of facts has held that in the event of the vehicle being driven by a person having learner's licence without being accompanied by a person with a valid licence it would amount to fundamental breach of policy condition and under such circumstances the
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insurance company shall not be liable for payment of compensation, rather it shall be the liability of the owner to pay the compensation.
7. In Vikas Kumar Verma v. Lachiya Devi & Others , 2012 (3) C.G.L.J. 585 , this Court in paragraph 15 has under as under:-
“15. The combined effect of provisions of the Motor Vehicles Act, 1988 along with Rule 3 of the Central Motor Vehicles Rules, 1989, is that if the driver of the vehicle was holding learner's licence, then he must be accompanied by an instructor holding a valid and effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle. In the absence whereof, it cannot be said that the driver of the vehicle was possessing valid and effective driving licence. ”
8. Similarly, in M/s Anaal Automobiles v. Ashish Kumar Shukla &
Others , 2008 (2) C.G.L.J. 41 , it was held as under:
9. This Court is also inclined to accept the same analogy applied in the aforementioned two decisions and holds that the finding of the learned Tribunal cannot be found fault with and the insurance company in the instant case has been rightly exonerated of its liability.
10. As regards the contention of the award to be modified applying the principle of 'pay and recovery', this Court is of the opinion that such order of modification cannot be passed in an appeal preferred by the owner, particularly when the learned Tribunal has not applied the principle of 'pay and recovery'. The same analogy could had been applied if it had been an appeal preferred by the claimants.
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11. In the instant case, all that this Court is forced to consider is, whether the finding of exoneration of the insurance company is justified or not. Since this Court has found that the learned Tribunal has based its finding on the principles laid down by the Hon'ble Supreme Court in the case of Swaran Singh (supra) and which further stands fortified from the aforementioned two decisions of this Court, it is difficult to hold that the said finding is contrary to the evidence or is contrary to the statutes i.e. the Motor Vehicles Act.
12. The two appeals thus being devoid of merits deserve to be and the same are accordingly dismissed.
Sd/-
(P. Sam Koshy)
/sharad/ Judge
2 issues framed by the court
Whether exonercation of the insurance company is justified when a driver operates a vehicle with a learner's licence without an accompanying validly licensed instructor.
Whether the appellate court can modify an award to apply the 'pay and recovery' principle in an appeal filed by the vehicle owner rather than the claimant.
Colour shows how this judgement treated each authority
2 provisions across 1 enactments
Peela Singh
Jagadu Ram
Dileep Kumar
National Insurance Company Limited
P. Sam Koshy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
