Smt Sita Bai Rajput Vs Ashwini Rajput

Ashwini Rajput, S/o Ramesh Rajput, Aged about 17 years, R/o Village Mandipara Sardha, Thana Lormi, District Mungeli, Chhattisgarh. (Driver of the offending vehicle Honda C.B. Shine No.CG-28/J-7651)

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(Driver)

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Ramesh Rajput, S/o Shri Ram Rajput, Aged about 41 years, R/o Village Mandipara Sardha, Thana Lormi, District Mungeli, Chhattisgarh. (Owner of the offending vehicle Honda C.B. Shine No.CG-28/J-7651)

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(Owner)

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The Liberty General Insurance Company Limited, Through Branch Manager, Address Mittal Complex, 1^st Floor, In side of S.T. Bank, Vyapar Vihar, Thana Tarbahar, District Bilaspur, Chhattisgarh. (Insurer of the offending vehicle Honda C.B. Shine No.CG-28/J-7651)

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(Insurer) ... Respondents For Appellants : Mr. Shubhank Tiwari, Advocate. For Respondents : None present.

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Hon’ble Shri Justice Sanjay K. Agrawal

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Page 2 of 4

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{M.A.(C)No.78/2022}

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Order on Board

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17/07/2025

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The short question involved in this appeal is, whether the Claims Tribunal is right in exonerating the Insurance Company from its liability and in not applying the principle of firstly pay and then recover from the owner of the vehicle as held by the Supreme Court in the matter of National Insurance Co. Ltd. v. Swaran Singh and others 1 followed subsequently in the matter of Shamanna and another v. Divisional Manager, Oriental Insurance Company Limited and others 2?

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The claim petition was filed before the Claims Tribunal and the learned Claims Tribunal after due enquiry, awarded a compensation of ₹ 13,65,080/- to the claimants, but exonerated the Insurance Company – respondent No.3 herein from the liability on the ground that the driver – respondent No.1 was minor on the date of offence and therefore the Insurance Company is not liable to pay the amount.

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Mr. Shubhank Tiwari, learned counsel appearing for the appellants herein/ claimants, would submit that in view of the decision rendered by the Supreme Court in the matter of Jawahar Singh v. Bala Jain and others 3, the Insurance Company is liable and the Claims Tribunal could not have exonerated the Insurance Company from liability and could have applied the principle of pay and recover as held in Swaran Singh’s case (supra) followed in Shamanna (supra).

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1 (2004) 3 SCC 297

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2 (2018) 9 SCC 650

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3 (2011) 6 SCC 425

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Page 3 of 4

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{M.A.(C)No.78/2022}

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None present for the respondents, though served.

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I have heard learned counsel for the appellants and considered the submissions made on their behalf and also gone through the record with utmost circumspection.

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True it is that the Claims Tribunal in paragraphs 23 & 24 of its award has clearly recorded a finding that respondent No.1 herein was minor on the date and time of offence and he was driving the offending vehicle and as such, the vehicle was being plied in terms of the violation of the insurance policy and since he was minor, therefore, the principle of pay and recover would not apply which runs contrary to the decision rendered by the Supreme Court in Jawahar Singh (supra) in which it was held in paragraph 14 as under: -

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“ 14. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accidents Claims Tribunal quite rightly saddled the liability for payment of compensation on the petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same.”

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As such, their Lordships of the Supreme Court have clearly held that it was the duty of the owner to ensure that his vehicle was not misused and that too by a minor who had no license to drive the vehicle, therefore, the Insurance Company is liable to pay the amount. In that view of the

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Page 4 of 4

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{M.A.(C)No.78/2022}

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matter, in light of the decision of the Supreme Court in Swaran Singh’s case (supra), onus is always upon the Insurance Company to prove that the driver was driving the vehicle with valid driving license and it has to establish the breach by cogent evidence, breach of condition is to be shown by the Insurance Company to avoid liability and make the third party liable. The decision rendered in Swaran Singh’s case (supra) was followed with approval in Shamanna (supra).

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Reverting to the facts of the present case, though the driver was minor, but it was the duty of the owner to see that his vehicle is not misused, in other words, to ensure minor should not drive his vehicle. In that view of the matter, the award impugned is partly modified to the extent that the award amount will be paid firstly by the Insurance Company within a period of three months from the date of receipt of a copy of this order and thereafter, it will be recovered from the owner of the vehicle.

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With the aforesaid observation and direction, the appeal stands finally disposed of without any order as to cost(s).

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Sd/(Sanjay K. Agrawal) JUDGE

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Soma

Smt Sita Bai Rajput v. Ashwini Rajput

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Smt Sita Bai Rajput v. Ashwini Rajput

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