Manager, United India Insurance Company Limited Vs Smt. Sevti Nirmalkar

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1

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2025:CGHC:50238

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 551 of 2019

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Manager, United India Insurance Co. Ltd. Amar Complex, Jiwan Bima Marg, Nearby Pandri Railway Crossing, Raipur, Chhattisgarh..............(Insurer Of Vehicle Auto Ape No. C.G.-04Jc-1330).........(Non-Applicant No.3), District : Raipur, Chhattisgarh

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--- Appellant(s)

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versus

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1. Sahukar Nirmalkar S/o Late Shri Bisambhar Nirmalkar Aged About 34 Years R/o Village Khilora, Post Chhanpairi, Tahsil Abhanpur, District- Raipur, Chhattisgarh................(Claimant), District : Raipur, Chhattisgarh

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2. Akash Nayak S/o Shri Niraj Nayak Aged About 22 Years R/o Santoshi Nagar, Behind Shraddhanand School, Tikrapara, Tahsil And District- Raipur, Chhattisgarh........(Driver Of Vehicle Auto Ape No. C.G.-04-Jc-1330)..........(Non-Applicant No.1), District : Raipur, Chhattisgarh

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3. Dhiraj Nayak @ Niran Nayak S/o Late Shri Krishna Nayak Aged About 42 Years R/o Santoshi Nagar, Behind Sharaddhanand School, Tikrapara, Tahsil And District- Raipur, Chhattisgarh.......... (Owner Of Vehicle Auto Ape No. C.G.-04-Jc-1330)...........(NonApplicant No.2), District : Raipur, Chhattisgarh

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--- Respondent(s)

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WITH

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MAC No. 612 of 2019

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Manager, United India Insurance Company Limited Amar Complex, Jiwan Bima Marg, Nearby Pandri Railway Crossing, Raipur, Chhattisgarh.........(Insurer Of Vehicle Auto Ape No. C.G.04-Jc-1330)...........(Non-Applicant No.3), District : Raipur, Chhattisgarh

---Appellant(s)

2

Versus

1. Smt. Sevti Nirmalkar Wd/o Late Mohan Nirmalkar Aged About 27 Years R/o Village Khilora, Post Chhachhan Pairy, Police Station Sejbahar, Tahsil Abhanpur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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2. Nagesh Kumar Nirmalkar Aged About 11 Years Minor Through Natural Guardian Mother Smt. Seveti Nirmalkar, Wd/o Late Mohan Nirmalkar, R/o Village Khilora, Post Chhachhan Pairy, Police Station Sejbahar, Tahsil Abhanpur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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3. Gopal Nirmalkar Aged About 9 Years Minor Through Natural Guardian Mother Smt. Seveti Nirmalkar, Wd/o Late Mohan Nirmalkar, R/o Village Khilora, Post Chhachhan Pairy, Police Station Sejbahar, Tahsil Abhanpur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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4. Ku. Damini Nirmalkar Aged About 7 Years Minor Through Natural Guardian Mother Smt. Seveti Nirmalkar, Wd/o Late Mohan Nirmalkar, R/o Village Khilora, Post Chhachhan Pairy, Police Station Sejbahar, Tahsil Abhanpur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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5. (Deleted) Pitambar Nirmalkar (As Per Honble Court Order Dated08-10-2025)

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6. Smt. Kunjbai Nirmalkar W/o Shri Pitambar Nirmalkar Aged About 65 Years R/o Village Khilora, Post Chhachhan Pairy, Police Station Sejbahar, Tahsil Abhanpur, District- Raipur, Chhattisgarh............(Claimants), District : Raipur, Chhattisgarh

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7. Akash Nayak S/o Shri Niraj Nayak Aged About 22 Years R/o Santoshi Nagar, Behind Shraddhanand School, Tikrapara, Tahsil And District- Raipur, Chhattisgarh...........(Driver Of Vehicle Auto Ape No. C.G.-04-Jc-1330).................(Non-Applicant No.1), District : Raipur, Chhattisgarh

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8. Dhiraj Nayak @ Niran Nayak S/o Late Shri Krishna Nayak Aged About 42 Years R/o Santoshi Nagar, Behind Shraddhanand School, Tikrapara, Tahsil And DistrictRaipur, Chhattisgarh................(Owner Of Vehicle Auto Ape No. C.G.-04Jc-1330)............(Non-Applicant No.2), District : Raipur, Chhattisgarh

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--- Respondent(s)

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WITH

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3

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MAC No. 742 of 2019

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Sahukar Nirmalkar S/o Late Shri Bisambhar Nirmalkar Aged About 34 Years R/o Village- Khilora, Post- Chachanpairi, TahsilAbhanpur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh

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---Appellant(s)

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Versus

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1. Akash Nayak S/o Shri Niraj Nayak Aged About 22 Years R/o Santoshi Nagar, Behind Shraddhanand School, Tikarapara, Tahsil And District- Raipur, Chhattisgarh.......Driver Of Vehicle No. Cg13 Jc/ 1330, District : Raipur, Chhattisgarh

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2. Dhiraj Nayak @ Niran Nayak S/o Late Shri Krishna Nayak Aged About 42 Years R/o Santoshi Nagar, Behind Shraddhanand School, Tikarapara, Tahsil And DistrictRaipur, Chhattisgarh.......Owner Of Vehicle No. Cg13 Jc/ 1330, District : Raipur, Chhattisgarh

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3. Manager Through United India General Insurence Company Limited, Amar Complex, Jivan Bima Marg, Near Pandari Railway Crossing,raipur, Chhattisgarh........Insurer Of Vehicle No. Cg13 Jc/ 1330, District : Raipur, Chhattisgarh

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--- Respondent(s)

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WITH

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MAC No. 810 of 2019

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1. Smt. Sewati Nirmalkar Wd/o Late Mohan Nirmalkar Aged About 27 Years R/o Village Khilora Post - Chachanpairi, Police Station Sejbahar Tahsil - Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2. Nagesh Kumar Nirmalkar S/o Late Mohan Nirmalkar Aged About 11 Years Minor, Hence Impleaded Through Their Natural Guardian Mother / Appellant No. 1, Smt. Sewati Nirmalkar Wd/o Late Mohan Nirmalkar, R/o Village Khilora Post - Chachanpairi, Police Station Sejbahar Tahsil - Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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3. Gopal Nirmalkar S/o Late Mohan Nirmalkar Aged About 9 Years Minor, Hence Impleaded Through Their Natural Guardian Mother / Appellant No. 1, Smt. Sewati Nirmalkar Wd/o Late Mohan Nirmalkar, R/o Village Khilora Post - Chachanpairi, Police Station Sejbahar Tahsil - Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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4. Ku. Damini Nirmalkar D/o Late Mohan Nirmalkar Aged About 7 Years Minor, Hence Impleaded Through Their Natural Guardian Mother / Appellant No. 1, Smt. Sewati Nirmalkar Wd/o Late Mohan Nirmalkar, R/o Village Khilora Post - Chachanpairi, Police Station Sejbahar Tahsil - Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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5. (Deleted) Pitambar Nirmalkar As Per Honble Court Order Dated 08-10-2025

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6. Smt. Kunja Bai Nirmalkar W/o Shri Pitambar Nirmalkar Aged About 65 Years R/o Village Khilora Post - Chachanpairi, Police Station Sejbahar Tahsil - Abhanpur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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---Appellant(s)

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Versus

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1. Akash Nayak S/o Shri Niraj Nayak Aged About 22 Years R/o Santoshi Nagar, Behind Sharaddhanand School, Tikarapara Tahsil And District Raipur Chhattisgarh. (Driver Of Vehicle No. Cg 04 Jc / 1330 ), District : Raipur, Chhattisgarh

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2. Dhiraj Nayak @ Niran Nayak S/o Late Shri Krishna Nayak Aged About 42 Years R/o Santoshi Nagar, Behind Shraddhanand School, Tikarapara, Tahsil And District Raipur Chhattisgarh. (Owner Of Vehicle No. Cg 04 Jc / 1330 ), District : Raipur, Chhattisgarh

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3. Manager, United India General Ins. Co. Ltd., Amar Complex, Jivan Bima Marg, Near Pandari Railway Crossing, Raipur Chhattisgarh. (Insurer Of Vehicle No. Cg 04 Jc / 1330 ), District : Raipur, Chhattisgarh

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--- Respondent(s)

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For Insurance Company	: Ms. Swati Agrawal, Advocate on behalf of Mr. PankajAgrawal, Advocate
For Claimants	: Mr. Amiyakant Tiwari, Advocate
For Respective Respondents	: Mr. Pradeep Singh Rathore, Advocate (in MAC/551/2019) Ms. Pooja Yadav, Advocate on behalf of Mr. Shivendu Pandya, Advocate (in MAC/742/2019) Ms. Shweta Bole, Advocate on behalf of Mr. Pushkar Sinha, Advocate (in MAC/810/2019)

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Hon’ble Shri Justice Rakesh Mohan Pandey

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Judgment On Board

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08-10-2025

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1) In MAC/551/2019, Insurance Company has challenged the award passed by learned First Additional Motor Accident Claims Tribunal, Raipur, District Raipur (C.G.) in Claim Case No. 627/2017 dated 17.1.2019 whereby learned Claims Tribunal has awarded compensation to the tune of Rs. 50,000/- to the claimant–Sahukar Nirmalkar on account of injuries sustained by him. Claimant has also filed MAC/742/2019 for enhancement of award passed in the Claim Case No. 627/2017.

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In MAC/612/2019, Insurance Company has challenged the award passed by learned Claims Tribunal in Claim Case No. 211/2016 dated 17.1.2019 whereby learned Claims Tribunal has awarded compensation to the tune of Rs. 13,80,200/- with interest @ 9% per annum to the claimants on account of death of Mohan Nirmalkar. Claimants have also preferred MAC/810/2019 for enhancement of award passed in the Claim Case No. 211/2016.

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2) Facts of the present case are that on 13.9.2015 at about 3:30 p.m., Sahukar Nirmalkar was going on his two wheeler bearing registration No. CG-04-DN-6601 along with Mohan Nirmalkar as pillion rider from Raipur to Khilora. When they reached near Shitla Petrol Pump, Mujgahan, one Akash Nayak driving the APE auto rickshaw bearing registration No. CG-04-JC-1330 in rash and

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negligent manner, dashed the two wheeler. In the accident, both persons sustained grievous injuries and were taken to hospital. Mohan Nirmalkar suffered severe injuries and remained hospitalized from 17.9.2015 to 24.9.2025 and died during the course of treatment on 24.9.2015 whereas Sahukar Nirmalkar survived after sustaining grievous injuries over hands, legs and chest and fracture in right leg below knee.

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3) Sahukar Nirmalkar filed Claim Case No. 627/2017 claiming compensation to the tune of Rs.16,50,000/- on account of injuries sustained by him. He pleaded that he sustained serious injuries over hands, legs and chest and fracture in right leg below knee. He further pleaded that he was working as mason and used to earn Rs. 15,000/- per month and he is unable to make his livelihood owing to the tragic accident. Driver and owner filed reply and denied averments in claim application. Insurance Company also filed reply and took a specific plea that offending vehicle was being driven in breach of insurance policy and the driver was not having valid and effective driving license. It was also pleaded that the offending vehicle was being plied in absence of valid fitness certificate. Claims Tribunal framed issues and held that claimant had not sustained permanent disability on account of injuries suffered by him. Claims Tribunal further held that the driver of offending vehicle was having valid driving license to drive a Light Motor Vehicle (LMV) but there was no endorsement for nontransport vehicle. Claims Tribunal placed reliance on the judgment

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rendered by Hon’ble Supreme Court in the matter of Bajai Allianz General Insurance Company Limited Versus Rambha Devi and Others¹ and held that if the weight of vehicle is less than 7,500 kg, it would be deemed Light Motor Vehicle and would not require any specific endorsement to drive it. With regard to Fitness Certificate, Claims Tribunal has held that fitness of offending vehicle was valid up to 10.1.2013 and thereafter, vehicle was insured by the Insurance Company, which failed to adduce evidence to establish the fact that after 10.1.2013, fitness certificate was not issued in favor of the offending vehicle and contention made by the Insurance Company was turned down. Claims Tribunal considered the notional monthly income of the injured to be Rs. 6,000 per month and granted Rs. 18,000/towards loss of earning for period of three months ; honored the medical bills to the tune of Rs. 12,000/- ; granted Rs. 15,000/towards special diet and attendant charges and Rs. 5,000/towards pain and suffering. Thus, in total, Claims Tribunal awarded Rs.50,000/- as compensation to the injured Sahukar Nirmalkar.

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4) On account of death of Mohan Nirmalkar, his wife, three minor children and parents filed Claim Case No. 211/2016 and pleaded that the deceased was aged about 30 years and was working as mason earning Rs. 15,000/- per month. They claimed compensation to the tune of Rs. 37,50,000/- under various heads.

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1 . (2025) 3 SCC 95

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Driver and owner of offending vehicle and Insurance Company filed reply and took almost similar plea. Claims Tribunal framed issues and considered the notional monthly income of deceased to be Rs. 6,000/-, deducted 1/4th towards personal and living expenses of deceased and applied multiplier of 17 looking to his age. Claims Tribunal further awarded Rs. 15,000/- towards funeral expenses ; Rs. 15,000/- towards loss of estate and Rs. 40,000/towards loss of consortium to the wife. Claims Tribunal honored the medical bills to the tune of Rs. 25,000/- and added 40% towards future prospects of the deceased. Thus, in total Claims Tribunal awarded Rs.13,80,000/- as compensation to the claimants on account of death of Mohan Nirmalkar.

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5) Learned counsel for the Insurance Company submits that the offending vehicle was being plied in absence of valid fitness certificate and thus there was breach of policy but the Claims Tribunal decided this issue against Insurance Company only on the ground that Insurance Company failed to establish the fact that on the date of accident, there was no valid permit. She further submits that burden to the prove the same was on owner and driver of the offending vehicle. In this regard, she has placed reliance on the judgment rendered by the High Court of Chhattisgarh in the matter of National Insurance Company Limited Versus Govind Kumar² and the judgment rendered by the High Court of Madhya Pradesh in the matter of United India

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2 . 2020 Supreme (Chh) 201

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Insurance Company Ltd. Versus Usha and Others³ . She contends that owner of the offending vehicle as well as Insurance Company could not establish that fitness certificate was in existence, therefore matter may be remitted back to the Claims Tribunal granting liberty to the parties to lead evidence in this regard. She prays to allow the appeals preferred by Insurance Company.

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6) On the other hand, learned counsel appearing for respective claimants oppose. Mr. Amiyakant Tiwari, Advocate submits that burden was on Insurance Company to demonstrate that on the date of accident, offending vehicle was being plied in absence of valid fitness certificate. He further submits that one Sushmit Bala was examined by the Insurance Company who stated that on the date of accident, driver of offending vehicle was not having valid driving license to drive the transport vehicle. With regard to fitness certificate, he contends that an investigation was conducted by Insurance Company and particulars of RC book was produced as Ex. D-3 wherein it is mentioned that fitness certificate was valid up to 10.1.2013 but the Insurance Company failed to produce that fitness certificate. With regard to contention made by Ms. Agrawal in earlier para, he submits that as investigation was conducted by the Insurance Company with respect to driving license and fitness certificate, Insurance Company ought to have produced the said report/ document(s) to establish the contents of its reply. He has

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3 . 2013 Supreme (MP) 1489

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placed reliance on the judgment rendered by Hon’ble Supreme Court in the matter of IFFCO Tokio General Insurance Co. Ltd. Versus Geeta Devi and Ors.⁴ Further, with regard to enhancement of compensation he argues that in the injury case, Claims Tribunal has awarded meager amount under the conventional heads ; in death case, Claims Tribunal has considered the notional monthly income of deceased to be Rs. 6,000/- per month which is not in consonance with the minimum wage matrix applicable in the State of Chhattisgarh. As per minimum wage matrix, minimum wage payable to a skilled laborer in September, 2015 was Rs.6,200/- per month. He further argues that Claims Tribunal has not awarded loss of consortium to the children and parents of the deceased. He prays that the awards impugned may kindly be enhanced suitably.

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7) Mr. Pradeep Singh Rathore, Ms. Pooja Yadav and Ms. Shweta Bole, Advocates jointly submit that Claims Tribunal has passed just and proper compensation and the Insurance Company failed to establish that fitness certificate of offending vehicle was not in existence on the date of accident. They contend that both the appeals preferred by Insurance Company deserve to be dismissed.

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8) Heard learned counsel for the parties and perused the record with utmost circumspection.

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4 . AIR 2023 SC 5545

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9) In MAC/742/2019, admittedly, the claimant Sahukar Nirmalkar did not sustain any permanent disability and neither the treating doctor was examined nor any disability certificate was produced by the claimant. Further, Claims Tribunal has awarded appropriate compensation under conventional heads and also awarded loss of earning for period of three months. In my opinion, Claims Tribunal has passed just and proper compensation which requires no interference.

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10) MAC/810/2019 has been filed by the claimants for enhancement of compensation on account of death of Mohan Nirmalkar. Perusal of the award would show that Claims Tribunal has assessed the notional monthly income of the deceased to be Rs. 6,000/- per month. Admittedly, the deceased was a mason and according to the minimum wage matrix applicable in the State of Chhattisgarh at the time of accident, minimum wage payable to a skilled labour was Rs. 6,200/- per month. Thus, Claims Tribunal has assessed the monthly income of the deceased on lower side. Further, Claims Tribunal has not awarded loss of consortium to the minor children and parents of the deceased. However, under other convention heads, Claims Tribunal has passed just and proper compensation. Keeping in mind the above discussed facts, compensation awarded by the Claims Tribunal on account of death of Mohan Nirmalkar requires reconsideration in the light of judgment passed by the Hon’ble Supreme Court in the matter of

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National Insurance Co. Ltd Vs. Pranay Sethi & others⁵ and

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same is reproduced herein below :-

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Sr. No.	Heads	Compensation awarded by Claims Tribunal	Compensation awarded by this Court
1.	Annual Income	Rs. 6,000x12 = Rs. 72,000/-	Rs.6,200x12= Rs. 74,400/-
2.	Future Prospect @ 40%	Rs. 72,000 + Rs.28,200=	Rs. 74,400 + Rs. 29,760 =
		Rs.1,00,800/-	Rs. 1,04,160/-
3.	Deduction towards personal and living	Rs. 1,00,800 – Rs. 25,200 =	Rs.1,04,160 – Rs. 26,040 =
	expenses @ 1/4	Rs. 75,600/-	Rs. 78,120/-
4.	Multiplier @ 17	Rs. 75,600 x17 =	Rs. 78,120 x 17 =
		Rs. 12,85,200/-	Rs. 13,28,040/-
5.	Medical Bills	Rs. 25,000/-	Rs. 25,000/-
6.	Loss of Estate	Rs. 15,000/-	Rs. 15,000/-
7.	Funeral expenses	Rs. 15,000/-	Rs. 15,000/-
8.	Loss of Consortium	Rs. 40,000/- (wife)	Rs. 2,40,000/- (total six dependants)
	TOTAL	Rs. 13,80,000/-	Rs. 16,23,040/-

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11) Now coming to the liability part, it is not in dispute that fitness certificate of the offending vehicle has not been produced either by the owner and driver or by the Insurance Company. In the reply filed by the owner and driver, there is no whisper with regard to fitness certificate. It is also not in dispute that the offending vehicle

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5 . (2017) 16 SCC 680

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was insured at the time of accident for period between 25.10.2014 to 25.10.2015 and an investigation was conducted by Insurance Company which is evident from the evidence of Shushmit Bala, the witness examined by Insurance Company who stated that RC book of the offending vehicle was sent for verification wherein it was found that fitness of vehicle expired on 10.1.2013. The particulars of RC Book was placed on record as Ex. D-3. Perusal of this exhibit would reveal that fitness of offending vehicle was valid till 10.1.2013. This witness has further admitted that the offending vehicle was insured with the Insurance Company and at the time of renewal, fitness of vehicle was not examined.

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12) With regard to the judgments relied by Ms. Agrawal, in the matter of Govind Kumar (supra), the co-ordinate Bench has held that though a specific defense was taken by Insurance Company that alleged transport vehicle was being plied without any permit and fitness but said fact was not controverted by the insured and documents were not placed on record. Further, Hon’ble Supreme Court in the matter of Amrit Paul Singh and Another Versus Tata AIG General Insurance Company Limited and Others⁶ has held that where driver and owner failed to place on record documents to prove that the vehicle has a valid permit, onus of proof cannot be shifted upon the insurer. In the matter of Usha (supra), High Court of Madhya Pradesh held that Insurance Company cannot be held liable to pay the interim award unless

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6 . (2018) 7 SCC 558

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the owner failed to prove a breach of the Insurance policy, until and unless the owner succeeds in establishing after leading necessary evidences that there is no breach of Insurance policy.

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13) With regard to the judgment relied by Mr. Tiwari, in the matter of Geeta Devi (supra), Hon’ble Supreme Court held that mere absence of fake or invalid driving license or disqualification of driver to drive the vehicle at relevant time are not defenses available to the insurer. Instead, insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care and caution. It is further held that Insurance Company must establish the available defenses raised in the proceeding and they must establish breach on the part of owner of vehicle.

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14) Perusal of record would show that initially, fitness certificate was issued to the offending vehicle which was valid up to 10.1.2013 and same is evident from the documents placed on record and statement of witness Sushmit Bala. Perusal of evidence of that witness would reveal that investigation was conducted with respect to the driving license of driver of offending vehicle as well as fitness certificate but the Insurance Company failed to produce the investigation report before the Claims Tribunal to establish absence of fitness certificate. Although, there is mention to this effect in the Ex.D-3 i.e. particulars of RC Book but none of the officers of RTO department was examined by the Insurance Company to establish that vehicle was being plied in absence of

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fitness certificate. It is true that the owner of vehicle must plead and prove these documents but at the same time, burden lies on the person(s) who denies existence of such documents.

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15) In the present case, a specific defense was taken by the Insurance Company that investigation was conducted, therefore, it was under obligation to the prove that the offending vehicle was being plied in absence of valid fitness certificate. In the matter of Geeta Devi (supra), Apex Court has categorically held that Insurance companies, however, with a view to avoid their liability must not only establish the available defense(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. Relevant paras 12 and 15 of Geeta Devi (supra) are reproduced herein below :-

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12. Further, in the context of cases where the driver's licence was found to be fake, the Bench observed that the question would be whether the insurer could prove that the owner was guilty of willful breach of the conditions of the insurance policy. It was pointed out that the defence to the effect that the licence held by the person driving the vehicle was a fake one would be available to the insurance company but whether, despite the same, the plea of default on the part of the owner has been established or not would be a question which would have to be determined in each case. The earlier decision in United India Insurance Co. Ltd. vs. Lehru and others4 was considered and the Bench observed that the ratio therein must not be read to mean that an owner of a vehicle can, under no circumstances, have any duty to make an inquiry with regard to the genuineness of the driving licence and the same would again be a question which would arise for consideration in

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each individual case. The argument that the decision in Lehru (supra) meant that, for all intent and purport, the right of the insurer to raise a defence that the licence was fake was taken away was, however, rejected as not being correct and it was held that such a defence can certainly be raised, but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The findings summed up by the Bench, to the extent presently relevant, are as under:

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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 wherefor 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

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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.

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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 fulfil the requirements of law or not will have to be determined in each case.'

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15. As already pointed out supra, once a seemingly valid driving licence is produced by a person employed to drive a vehicle, unless such licence is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the licence has already expired, or there is some other reason to entertain a genuine doubt as to its validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving licence before employing that person to drive the vehicle. Presently, no evidence has been placed on record whereby an inference could be drawn that the deceased vehicle owner ought to have gotten verified Ujay Pal's driving licence. Therefore, it was for the petitioner-insurance company to prove willful breach on the part of the said vehicle owner. As no such exercise was undertaken, the petitioner-insurance company would have no right to recover the compensation amount from the present owners of the vehicle. The impugned order passed by the Delhi High Court holding to that effect, therefore, does not brook interference either on facts or in law.

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16) As a result, taking into consideration the law laid down by the

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Apex Court in the matter of Geeta Devi (supra), both the appeals preferred by Insurance Company [MAC/551/2019 and MAC/612/2019] are hereby dismissed. As discussed earlier in para 9 herein-above, the appeal preferred by claimant Sahukar Nirmalkar [MAC/742/2019] also stands dismissed.

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17) In view of the discussion made herein-above in para 10, the appeal preferred by the claimants for enhancement of compensation on account of death of Mohan Nirmalkar [MAC/810/2019] is allowed in part. Accordingly, the amount of compensation of Rs.13,80,000/- awarded by the Claims Tribunal is enhanced to Rs.16,23,040/-. Hence, the appellants are entitled for an additional amount of Rs.2,43,040/- . Rest of the conditions of the award impugned shall remain intact. The Insurance Company is directed to make payment of additional compensation assessed herein-above within period of 60 days, failing which, the said amount shall carry an interest @ 18% p.a.

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Sd/-

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(Rakesh Mohan Pandey) JUDGE

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A j i n k y aDigitally signed by AJINKYA PANSARE Date: 2025.10.14 16:31:01 +0530

Manager, United India Insurance Company Limited v. Smt. Sevti Nirmalkar

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Manager, United India Insurance Company Limited v. Smt. Sevti Nirmalkar

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