Tikeshwar Kumar Sinha Vs Prakash Das

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 1151 of 2020

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Tikeshwar Kumar Sinha S/o Gaind Ram Sinha Aged About 19 Years R/o Village Chvad Narharpur, Tahsil And Thana Narharpur, District North Baster Kanker Chhattisgarh

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---- Appellant

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Versus

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Prakash Das S/o Gopal Das Aged About 40 Years R/o Bangali Camp Singarbhatha, Kanker, District North Baster Kanker Chhattisgarh, District : Kanker, Chhattisgarh

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The National Insurance Company Limited Branch Office Mobin Mahal 2nd Floor G. E. Raipur District Raipur Chhattisgarh

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---- Respondents

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(Cause-tile taken from the Case Information System)

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----------------------------------------------------------------------------------------------- For Appellant : Mr. A.L. Singroul, Advocate For Respondent No. 2 : Mr. Shivendu Pandya, Advocate -----------------------------------------------------------------------------------------------

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Hon'ble Shri Arvind Kumar Verma, Judge Order on Board

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11.03.2024

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short MV Act) has been filed by the appellants/claimants being aggrieved by the award dated 29.02.2020 passed by the Motor Accident Claims Tribunal, North Bastar Kanker, District- Banker (C.G.), in Claim Case No. 76/2019.

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Brief facts of the case is that on 30.05.2018, Tikeshwar Kumar Sinha/appellant in his motorcycle bearing registration No. C.G.

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19/BE/0468, was returning from Kanker at around 04:00 AM near Bardebhatha by pass driving the motorcycle slowly on his left side the respondent No. 1 driver of the offending motorcycle by driving rashly and negligently dashed the motor cycle of the appellant from front side, as a result of which the appellant fell along with the motor cycle, due to which he sustained several injuries and as a result thereof, he had suffered 20% permanent disability.

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As per the pleadings, the appellant/claimant at the time of accident was about 19 years and use to earn Rs. 4,500/- per month by working as a labour and claimant has claimed total compensation of Rs. 5,12,000/- jointly and severally against the respondents.

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The respondent no. 1 owner/driver has proceeded ex parte and has not filed the reply to the claimant’s application.

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The respondent No. 2/ Insurance Company filed its written statement and denied the averments made in the claim petition that appellant/claimant suffered serious injury and permanent disability due to the accident and pleaded that Respondent no. 1 did not have a valid and effective driving license and vehicle was driven in breach of terms and condition of Insurance policy. The accident occurred due to careless and negligent driving of the motorcycle by the appellant/claimant. The accident is a head on collision between two motorcycles. Therefore, compensation should be determined

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according to the principle of contributory negligence. Therefore, the Insurance company of the motorcycle which the appellant/claimant was driving is also a necessary party to the case.

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On the basis of above broad pleadings, learned Tribunal framed as many as five issues and after assessment of evidence and material placed before it decided the same in favour of the appellant/claimant and awarded Rs.1,71,299/- as compensation by considering it as contributory negligence and deducted the 50% of the award amount and awarded half of the amount i.e. Rs. 85,650/- against Respondent No. 1. The learned Tribunal exonerated the Insurance Company/Respondent No.2 from liability due to breach of policy.

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Learned counsel for the appellants/claimants vehemently argued that deduction of 50% towards contributory negligence is liable to be set aside because the Insurance Company has neither examined any witness in defence nor laid any evidence to show that accident is caused due to contributory negligence. He further argued that learned Tribunal committed grave illegality in holding the income of the deceased as Rs. 4,000/- per month, it ought to have considered income of injured/appellant as Rs. 4,500/- and 40% future prospect. He lastly submits that appellant/claimant was working as labour and due to injury appellant/claimant is entitled for compensation towards 20% disability, loss of earning, loss of income, pain and suffering.

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Learned counsel for the appellant/claimant contended that tribunal has wrongly exonerated the insurance company from its liability without consideration the appellant is third party for the insurance company therefore even in case of breach of policy principle of pay and recover would be applicable and places reliance upon the judgment passed by the Hon’ble Apex Court in Shamanna and others vs. Divisional Manager, Oriental Insurance Company and others 2018 (9) SCC 650.

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Learned counsel for the respondent no.2 contended that statement of RTO officer has been recorded wherein he deposed in para 2 of his cross-examination that after verifying the driving license register it is found that the said driving license is not the driving license of Prakash Chandra. The said driving license has not been issued from RTO Kanker. Learned counsel for the Respondent No. 2/Insurance Company supports the award impugned and submits that looking to the evidence available on record, the findings so recorded by the learned Tribunal does not require any interference with regard to the compensation.The learned Tribunal has rightly exonerated the Insurance company.

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I have heard learned counsel for the parties, at length and considered their rival submission and perused the records with utmost circumspection.

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First and foremost argument raised by the appellant that this is not a case of contributory negligence. Learned Tribunal failed to consider that appellant was not negligent in driving the vehicle, therefore the deduction of 50% award towards contributory negligence is liable to be set aside.

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Per contra Learned counsel appearing for the respondent No.2/Insurance Company that this is a case of head on collision and appellant in evidence before the learned Tribunal in Para 6 admitted that accident occurred due to head on collision, it is a clear cut case of contributory negligence, therefore learned tribunal has rightly held it as a contributory negligence and deducted the 50% amount of the award.

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I have perused the record with utmost circumspection and found that learned Tribunal discussed this issue in para 13 of the judgment. (AW1) admitted in his cross examination in para 6 the question was asked that there was a head on collision between the two motorcycle? Answer to the said question given by the appellant that the motorcycle came from the front and hit my motorcycle. Hence, it is a case of head on collision, therefore this Court hereby affirming the case of contributory negligence and learned Tribunal rightly deducted 50% of the award amount.

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The contention raised by the appellant is that at the time of accident Respondent No. 1 had a license to drive the Light motor vehicle only

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and not a motor cycle with gear and the motor cycle was being operated by the Respondent No. 1 in violation of the terms and conditions of the Insurance Policy. Learned Counsel for the appellant places reliance upon the judgment passed by the Hon’ble Apex Court in Shamanna and others vs. Divisional Manager, Oriental Insurance Company and others 2018 (9) SCC 650. I have perused the record and found that as far as driving license of Respondent No. 1 is concerned this Court is of view that it is evident from (Ex D/1C) that Respondent No. 1 had a license to drive light motor vehicle only not the motor cycle with gear and at the time of accident the motorcycle was being operated by Respondent No. 1 in violation of terms and conditions of the Insurance Policy. Considering the above and taking guidance from the judgment of Hon’ble Supreme Court in the matter of

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Shamanna and others vs. Divisional Manager (Supra)

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In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh and others, (2004) 3 SCC 297:2004 (1) T.A.C 321, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. Doctrine of "pay and recover" was considered by the Supreme Court in Swaran Singh case wherein the Supreme Court examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Elaborately considering the insurer's contractual liability as well as statutory liability vis-a-vis the claims of third parties, the Supreme Court issued detailed guidelines as to how and in what circumstances, “pay and recover” can be ordered.

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In para (110), the Supreme Court summarised its conclusions as

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under:-

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“110. The summary of our findings to the various issues as raised in these petitions is as follows:

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(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.

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(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.

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(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.

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(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 wherefore would be on them.

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(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.

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(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

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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.

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(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.

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(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.

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(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.

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(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by

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sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.

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(xi) The provisions contained in sub-section (4) with the proviso there under and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims,”

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As per the decision in Swaran Singh case, onus is always upon the Insurance Company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case.

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The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut , (2007) 3 S.C.C. 700 : 2007(2) T.A.C. 398, wherein this Court held that “the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured”. The same principle was reiterated in Prem Kumari v. Prahlad Dev and others (2008) 3 S.C.C. 193 : 2008(1) T.A.C. 803.

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For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the Insurance Companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others , (2005) 12 S.C.C. 243 : 2005(2) T.A.C. 1, the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the Insurance Company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle.

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In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56: 2017 (3) T.A.C.20, the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for “agricultural

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works”, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the Insurance Company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor.

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In the present case, to deny the benefit of ‘pay and recover’, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 : 2009 (4) T.A.C. 382 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In P arvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that “if the Insurance Company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle”. The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case.

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Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the Insurance Company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.

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So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that “….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the

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concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.”

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In the result, the impugned judgment of the High Court insofar as enhancement of the compensation to Rs.4,94,700/- is affirmed. Insofar as direction of the impugned judgment directing the appellants/claimants to recover the compensation from the owner of the vehicle is set aside and the appeal is partly allowed. The first respondent insurance company shall pay the enhanced compensation to the appellants/claimants along with the accrued interest and the Insurance Company shall recover the same from the owner of the vehicle. No costs.

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Therefore, in the light of above principle laid by the Hon’ble Supreme Court, the principle of pay and recover would be applicable in this case.

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It is evident from para 18 of the judgment and documentary evidence available on record that appellant/claimant has presented the medical bill of Rs. 50,799/- which is justified. The Compensation under the Loss of income was awarded by the learned Tribunal is only Rs. 12,000 which is on lower side. This Court feels to provide loss of income for 5 months by considering the 20% disability. Due to 20% reduction in vision in his right eye, therefore, it would be fair to provide compensation to the claimant for his pain and suffering due to serious injury and loss of vision in his right eye. This Court is awarding for the loss of amenities taking into the nature of injuries suffered by him and the extent of his disability. This Court is awarding under the head of special diet. The amount awarded under the head of transportation is very meager looking to the fact that the appellant was shifted from one

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hospital to another hospital. So far as Attendant charge is concerned the learned Tribunal has not consider to award anything. The evidence on record indicates that the injury caused by the accident the appellant’s right jaw was broken and his right eye was also damaged. It is not in dispute that the appellant will not be able to work in the same manner as he used to prior to the accident and this Court is awarding Attendant Charges during treatment. This court feels to reassess the compensation:

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SL. No.	Particular	Awarded by this Court
1.	Medical Expenses	Rs. 50799/-
2.	Pain and suffering	Rs. 100,000/-
3.	Transportation Charges	Rs. 15,000/-
4.	Attendant Charges	Rs. 10,000/-
5.	Special diet	Rs. 15,000/-
6.	Loss of income for 5 months	4500 X 5 Total Rs. 22,500/-
7.	Loss of amenities	Rs. 15,000/-
	Total Compensation	Rs. 2,28,299/-

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However, on the ground of there being contributory negligence on the part of the claimant assessed at 50%, a total amount of Rs 1,14,150/came to be awarded, together with interest at six per cent per annum. the claimant/appellant is held entitled for amount of Rs. Rs 1,14,150/the amount shall carry interest @6% per annum from the date of claim application. The impugned award stands modified to the above extent.

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Consequently, the appeal is partly allowed. The Insurance Company is directed to deposit the amount of compensation as enhanced by this Court within a period of 60 days from today to the appellant first and thereafter as per the doctrine of pay and recover, shall recover the same from Respondent No. 1 in the same execution proceeding.

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Sd/-

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(Arvind Kumar Verma) Judge

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Shoaib

Tikeshwar Kumar Sinha v. Prakash Das

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Tikeshwar Kumar Sinha v. Prakash Das

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