Branch Manager Vs Smt. Heeramati

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SYED ROSHAN ZAMIR ALI

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Digitally signed by SYED ROSHAN ZAMIR ALI

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2025:CGHC:38518

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 2 of 2019

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Branch Manager The New India Insurance Company Limited (Correct Name As Assurance), Rama Trade Centre, 2nd Floor, U.T.I. Building, Opposite Razeev Plaza, Bilaspur Chhattisgarh. 495001, District : Bilaspur, Chhattisgarh

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... Appellant

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versus

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Smt. Heeramati Wd/o Late Sudarshan Aged About 40 Years By Caste Kumhar,

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Anil Kumar S/o Late Sudarshan Aged About 20 Years By Caste Kumhar,

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Hansh Kumari D/o Late Sudarshan, Aged About 17 Years

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Sunita D/o Late Sudarshan Aged About 14 Years

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Yogesh S/o Late Sudarshan Aged About 10 Years No.3 to 5 minor through Natural Guardian Mother Claimant No.1 Smt. Heeramati,

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Jaikunwar Wd/o Late Noharsai Aged About 65 Years All by Caste Kumhar, R/o Village Katora, Police Station Patna, Tahsil Baikunthpur, District Korea Chhattisgarh.

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Rajkamal Kushwaha S/o Ramchandra Kushwaha Aged About 28 Years Caste Koier, Occupation Driver R/o Village Sawaranga, PS Patna, Dist. Korea (CG)

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Rupesh Kumar Gupta S/o Yaduwansh Gupta Aged About 32 Years Occupation - Owner Of Vehicle, R/o Ward No. 20,

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Sarnapara, Patna, Tahsil Baikunthpur, District Korea Chhattisgarh.

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... Respondent(s) For Appellant : Ms. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate For Respondent No.1 to 6 : Ms. Shweta Bole, Advocate on behalf of Mr. Pushkar Sinha, Advocate. For Respondent No.7 & 8 : None though served.

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Hon'ble Shri Justice Parth Prateem Sahu Order on Board

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4/8/2025

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Appellant- Insurer has filed this appeal challenging the award dated 29.9.2018 passed in Claim Case No.32/2017 by which learned Motor Accident Claims Tribunal, Baikunthpur, District Koriya (for short ‘the Claims Tribunal’) fastened liability upon appellant-Insurance Company to pay awarded amount of compensation to claimants.

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Brief facts of case, in nutshell, are that claimants-respondents No.1 to 5 herein filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) claiming compensation to the tune of Rs.1,40,50,000/- against death of deceased Sudarshan in a road traffic accident caused by trailer bearing registration No.CG16-E-1527 (for short ‘offending vehicle’), driven in a rash and negligent manner by non-applicant No.1-driver.

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Non-applicant No.1 and 2, driver and owner of offending vehicle, jointly filed reply to claim application and denied the

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pleadings made therein. They pleaded that deceased while trying to steal coal from moving offending vehicle, slipped down, came under its wheel, sustained injuries and died, as such they are not responsible for accident. On the date of accident, non-applicant No.1 was having valid and effective driving license, there was valid permit also in favour of offending vehicle; it was insured with non-applicant No.3 and therefore, if any compensation is awarded to claimants, it will be responsibility of insurance company to pay the same.

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Non-applicant No.3/appellant-Insurance Company also filed its reply denying averments made in claim application and pleaded that on the date of accident, driver of offending vehicle was not holding valid and effective driving license. Even there was no valid permit and fitness certificate in favour of offending vehicle.

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The Claims Tribunal after appreciating pleadings and evidence of the parties arrived at a finding that accident took place due to rash and negligent act of driver of offending vehicle resulting into death of deceased Rupesh; on the date of accident, driver was holding valid & effective driving license to drive offending vehicle and consequently, allowed claim application in part, awarded Rs.10,15,000/- as compensation and fastened liability to pay compensation on appellant insurance company.

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Learned counsel for appellant Insurance Company would submit that Claims Tribunal erred in recording finding that on the date of accident, non-applicant No.1, driver of offending vehicle, was possessing valid and effective driving license overlooking contents of Ex.D-7, which is extract of driving license wherein it is specifically mentioned that validity of license for transport vehicle was upto 26.1.2017 and date of renewal is mentioned as 25.3.2017. Thus, on the date of accident i.e. 22.3.2017, non-applicant No.1-driver was not having valid and effective driving license to drive offending vehicle. In fact, it is a case of no license on the date of accident. Claims Tribunal erroneously held that insurance company has not produced any document from concerned Regional Transport Authority specifically mentioning that on 22.3.2017 non-applicant No.1 was not having effective license to drive offending vehicle, which is contrary to evidence on record.

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Learned counsel for claimants/respondents No.1 to 5 would submit that impugned award passed by Claims Tribunal is just and proper and does not call for any interference.

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I have heard learned counsel for respective parties and perused record of claim case.

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Learned counsel for appellant raised sole ground before this Court for consideration that Claims Tribunal erred in not

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considering that on the date of accident, non-applicant No.1 was not having valid and effective license authorizing him to drive offending vehicle.

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Non-applicant No.1-owner of offending vehicle, produced copy of license issued in the name of Rajkamal in which validity to drive transport vehicle is mentioned as 24.3.2020 and for non-transport vehicle as 8.112026. Non-applicant No.2 entered into witness box as NAW2-1 and admitted that he is not aware as to when license of non-applicant No.1 was renewed and it is also not mentioned in Ex.D-5, which is copy of license issued in the name of non-applicant No.1. Extract of license issued by the office of Licensing Authority concerned is also available in record as Ex.D-7, which is proved by NAW3-1 Prashant Baig, Senior Assistant of Appellant Insurance Company. He stated in his evidence that he had obtained particulars of license from the office of RTO concerned in which it is mentioned that validity period of license for driving transport vehicle is from 10.1.2014 to 20.1.2017; it was further renewed on 25.3.2017.

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Perusal of license (Ex.D-7) would show that license for transport vehicle was valid up to 20.1.2017 and thereafter it was renewed only on 25.3.2017. Accident occurred on 23.2.2017. Thus, it is apparent that from 21.1.2017 to 24.3.2017 non-applicant No.1 was not having license

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authorizing him to drive transport vehicle. License in the name of non-applicant No.1 - Rajkamal was renewed only on 25.3.2017 authorizing him to drive transport vehicle.

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Section 15 of the Act of 1988 deals with renewal of driving license. Sub-section (1) of Section 15 is relevant in the facts of case and therefore, the same is extracted below for ready reference:-

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“15. Renewal of driving licences-- (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:

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Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:...”

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First proviso of Section 15 (1) provides that if an application for renewal of a license is not made within one month or after the date of more than thirty days after the date of its expiry, driving licence shall be renewed with effect from the date of its renewal. In case at hand, license was effective only upto 20.1.2017, renewal of license is only on 25.3.2017 and accident occurred on 22.3.2017. It is not the case of driver and owner that they filed application within one month of the

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expiry of license. Hence, in view of above specific provision under the Act of 1988, it is clear that on the date of accident, non-applicant No.1-driver was not having valid and effective driving license authorizing him to drive offending vehicle, which is a transport vehicle, and therefore, in opinion of this Court, Claims Tribunal erred in holding that insurance company failed to produce any evidence to prove that on the date of accident, non-applicant No.1 was not possessing valid and effective driving license. Said finding recorded by the Claims Tribunal is perverse to evidence available on record, therefore it is not sustainable and accordingly, it is set aside.

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As this Court held that on the date of accident, driver of offending vehicle was not having valid and effective driving license to drive offending vehicle, the same amounts to breach of condition of insurance policy in view of specific clause in the insurance policy under the heading “persons or classes of persons entitled to drive”, which provides that any person including the insured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. In case at hand, as offending vehicle was driven by person not holding effective driving license on the date of accident to drive class of vehicle which he was driving, therefore, insurance company will not be having liability under impugned

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award to indemnify the insured. Accordingly, appellant Insurance Company is exonerated from its liability to indemnify insured under the policy. Respondents No.1 and 2, driver & owner of offending vehicle, are held liable to satisfy the compensation awarded by the Claims Tribunal, jointly and severally.

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Considering that appellant insurance company is exonerated from its liability only on the ground that driver of offending vehicle was not having valid and effective driving license on the date of accident, as it was not renewed on the date of expiry of license, therefore, in view of decision of Hon’ble Supreme Court in case of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558; Shamanna and another Vs. Divisional Manager Vs. the Oriental Insurance Co. Ltd. and others, reported in (2018) 9 SCC 650; wherein the Hon’ble Supreme Court has observed that in the case of breach of terms of insurance policy, direction against Insurance Company to pay awarded sum to claimants and then to recover the said sum from the insured can be given by applying the principle of "pay and recover", appellant Insurance Company is directed to first pay entire amount of compensation to claimants and then to recover the same from owner and driver of offending vehicle i.e. respondents No.1

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and 2 herein. For recovery of the compensation so paid, appellant is not required to file separate proceeding and can recover it in same proceedings, as held in case of Oriental Insurance Company Limited v. Nanjappan reported in AIR 2004 SC 1631 .

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In the result, appeal is allowed in part and award impugned

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stands modified to the extent indicated above.

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Sd/- (Parth Prateem Sahu) Judge

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roshan/

Branch Manager v. Smt. Heeramati

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Branch Manager v. Smt. Heeramati

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