Iffco Tokio General Insurance Company Ltd. Vs Kadam Kunwar

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2025:CGHC:27467

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 923 of 2019

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Iffco Tokio General Insurance Company Ltd. Registered Office, Iffco Sadan, C-1, District Center, Saket, New Delhi 17. ---(Insurer Of Tata 407 Cg 16 A 1989), District : New Delhi, Delhi

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--- Appellant

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versus

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1 - Kadam Kunwar W/o Late Veer Singh Aged About 37 Years R/o Village Pali, Thana - Pasan, District Korba Chhattisgarh. -

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2 - Phool Kumar S/o Late Veer Singh Aged About 23 Years R/o Village Pali, Thana - Pasan, District Korba Chhattisgarh. -

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3 - Raj Kumar S/o Late Veer Singh Aged About 9 Years R/o Village Pali, Thana - Pasan, District Korba Chhattisgarh. Minor Through Natural Guardian (Mother) Kadam Kunwar , Res. No.1

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4 - Uma Shankar Yadav S/o Makhan Lal Yadav Village Lamer, Thana Kota, District Bilaspur Chhattisarh.

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5 - Brijesh Patel S/o Tulsidas Patel Ward No. 32, Near Masjid, Juna Main Road, Bilaspur Chhattisarh.

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--- Respondent(s)

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For Appellant : Mr. Vaibhav Shukla, Advocate For Respondent No.1 to 3 : Mr. Anil Gulati, Advocate For Respondents No.5. : Mr. Akash Shrivastava, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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24/06/2025

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Digitally BALRAM signed by PRASAD BALRAM DEWANGAN PRASAD DEWANGAN

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Appellant/Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) against the impugned award dated 07.02.2019, passed in MACT No. 5/2018, whereby the learned Second Additional Motor Accident Claims

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Tribunal has awarded total compensation of Rs.7,04,200/- in a death case.

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Facts relevant for disposal of this appeal are that a claim application U/s. 166 of the Act, 1988 was filed by the claimants claiming total compensation of Rs.54,20,000/- under different heads against the death of Veer Singh, who died in the road accident pleading that, on 03/09/2017 at about 1.00 pm, Veer Singh was coming from Bilaspur to Manendragarh in a truck (407 model) number-CG-16-A-1989, when reached near village-Bodemuda, Parsa Bodra turn, non-applicant number-1, while driving the truck in a rash and negligent manner, hit the mountain on the side of the road, due to which Veer Singh suffered injuries on his face and head and died on the spot. It was pleaded that Veer Singh was a 45-year-old man at the time of the incident and was earning Rs. 12,000/- per month by doing work of tailoring, agriculture and milk production.

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Non-applicant Nos.1 & 2 submitted reply and while resisting the claim it was pleaded that the claim application was filed exaggerating the amount of compensation. No accident had occurred with the offending vehicle. The offending vehicle was duly insured with non-applicant No.3. Non-applicant No.3 in its reply pleaded that on the date of accident, non-applicant No. 1 did not possess a valid and effective driving licence to drive 407 model truck, which is classified as a goods vehicle. It was further alleged that the truck was carrying 6–7 passengers, including the deceased, which is clear violation of the terms and conditions of the insurance policy. Therefore, the insurance company is not liable to pay compensation.

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Learned Claims Tribunal upon appreciation of pleadings and evidence placed on record by respective parties, allowed the claim application in part and awarded total compensation of Rs.7,04,200/- fastened the liability upon the Insurance Company to satisfy the award.

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Learned counsel for appellants submits that the appellant/Insurance Company has filed this appeal challenging the impugned award passed by the learned Claims Tribunal and fixing the liability to pay amount of compensation upon the Insurance Company. He contended that the insurance of the offending vehicle is not in dispute. The appellant/Insurance Company in its reply has raised two major grounds along with others that on the date of accident, the driver of the offending vehicle was not possessed with valid and effective driving license, because on the date of accident, driver was possessing the license only to drive the light motor vehicle, whereas the vehicle involved in the accident is Tata 407 goods vehicle. There is no endorsement in the license of driver of the offending vehicle (transport vehicle) authorizing him to drive transport vehicle. He next contended that policy was issued covering the risk of third party and owner-cumdriver and driver of the vehicle, except this under the policy the risk of other person is not covered. The deceased on the date of accident was traveling as a gratuitous passenger and as the risk of deceased was not covered under the policy, the learned Claims Tribunal erred in fastening the liability upon the Insurance Company to satisfy the amount of compensation erroneously recording a finding that the deceased was traveling as labourer along with the goods. He also pointed out that in the pleadings, nature of occupation of the deceased

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is mentioned as tailoring and agricultural work, however, in the evidence averment has been made before the learned Claims Tribunal that he was also doing the work of electrician and according to the directions of the contractor, deceased was traveling in the vehicle. The said finding is perverse to the pleading in the claim application and the evidence available on record. He prays for exoneration of the Insurance Company from satisfying the amount of compensation.

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Learned counsel for respondents No.4 and 5 vehemently opposes the submission of learned counsel for the appellant/Insurance Company and would submit that the learned Claims Tribunal has rightly appreciated the evidence available on record and recorded a finding that the deceased was traveling as labour along with loaded goods. As the insurance policy is package policy, therefore, the risk of the persons/occupants of permissible limit as mentioned in the registration book are automatically covered. He also submits that the learned Claims Tribunal considering the decision of Hon'ble Supreme Court in case of Mukund Dewangan Vs. Oriental Insurance Company Limited, reported in (2017) 14 SCC 663 has rightly came to the conclusion that the driver of the offending vehicle while possessing the license to drive the light motor vehicle is also authorize to drive the transport vehicle having its laden weight below 7500 kg.

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I have heard learned counsel for the parties and perused the documents placed on record.

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The claimants have filed the application U/s. 166 of the Motor Vehicle Act, 1988 seeking total compensation of Rs.54,20,000/-. In the application, occupation of the deceased is mentioned as tailoring,

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agricultural and milk production. Income is shown to Rs.12,000/- per month. Though the claimants have mentioned the nature of all the works and occupation of deceased like tailoring, agricultural, milk production, however, there is no specific mention of the work of electrician for the purpose of earning his livelihood.

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In the claim application in para 10, it is mentioned that at the time of accident, deceased was traveling on the offending vehicle and going to Manendragarh from Bilaspur. In the said column, it is not mentioned in what capacity, the deceased was traveling in the vehicle. Admittedly the vehicle on which the deceased was travelling was Tata 407 goods carrying vehicle. In para -22 of the application it is also mentioned that on 03.09.2017 at about 1.00 PM, deceased was traveling on Tata 407 bearing No. C.G. 16-A-1989. In this para also there is no specific mention that the deceased was traveling as labourrer along with the goods. The accident is dated 03.9.2017 and the report is lodged in the police station on the same day at about 3.00 pm by Soraspal. In the FIR it is mentioned that deceased was working as labourer with contractor engaged in doing the work of electrical. At the instance of the contractor, they came to Bilaspur to take the electric cable wire from Bilaspur to Manendragarh. In the mourge intimation also same fact has been mentioned. Veer Singh is travelling in the cabin by the side of the driver and other persons were traveling on the platform of the vehicle. The vehicle met with an accident in which Veer Singh suffered grievous injuries over his head, face and succumbed to the injuries on the spot.

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Phool Kumar (Claimants No.2) is examined as A.W.-1. He stated that his father was coming to Manendragarh from Bilaspur in connection with work of Satish electrical contractor and at the relevant time, vehicle met with an accident. There is no mention as to which place deceased was sitting in the vehicle at the time of accident. Similar statement is made by Sirash Pal (AW-2). Copy of permit is available in record. Number of vehicle is mentioned as CG 16 A 1989 and the type of make, modal, and body is mentioned as LGV light goods vehicle. The laden weight is mentioned as 2200 and unladen weight is mentioned as 2250. Gross vehicle weight is mentioned as 4450. In the aforementioned facts of the case to appreciate the submission of learned counsel for appellant that on the date of accident, the driver of the offending vehicle was not possessed with effective driving license, perusal of the record would show that the copy of license of Uma Shankar Yadav is also available on record which is issued authorizing him to drive light motor vehicle and motor cycle with gear. The date of issue is 25.07.2007 and is valid up till 24.07.2027. From the aforementioned facts it is appearing that on the date of accident the driver of the vehicle was possessing the license to drive light motor vehicle and motor cycle with gear with validity date upto 24.07.2027. The accident occurred on 03.09.2017. The issue with regard to drive light goods vehicle by person holding light motor vehicle came for consideration before the Hon’ble Supreme Court in case of Mukund Dewangan (supra) and the Hon’ble Supreme Court considering the law has held as under :-

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“ 60. Thus, we answer the questions which are referred to us thus:

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60.1. “Light motor vehicle” as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.

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60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2) (d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.

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60.3. The effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section 10(2) which contained “medium goods vehicle” in Section 10(2)(e), “medium passenger motor vehicle” in Section 10(2)(f), “heavy goods vehicle” in Section 10(2)(g) and “heavy passenger motor vehicle” in Section 10(2)(h) with expression “transport vehicle” as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.

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60.4. The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.”

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In the aforementioned decision, the Hon'ble Supreme Court has held that persons possessing the license to drive light motor vehicle can also drive the transport vehicle of such class without any endorsement, in the opinion of this Court, the learned claims Tribunal has correctly held that the driver of the offending vehicle was having the valid and effective license to drive the offending vehicle which is a light goods vehicle. Accordingly, the said finding is hereby affirmed.

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So far as the second grounds raised by the learned counsel for the appellant that the deceased on the date of accident was traveling as gratuitous passenger is concerned, in the claim application though there is no such pleading that the deceased was traveling as a labourer, however, in the FIR, which is lodged immediately after the accident, it is mentioned that the deceased was traveling as a labourer in the offending vehicle. The FIR also mentions that the deceased was traveling in the cabin and sitting by the side of the driver of the vehicle. The report is promptly lodged, hence, the facts mentioned therein with respect to the status of the deceased traveling in the vehicle as labourer and the place of sitting, cannot be suspected.

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Perusal of the policy Ex.P-5 would show that the policy was effective for period from 07.05.2017 till 06.05.2018. It covers the risk of the personal accident of owner driver, legal liability to driver under IMT-28. No other risk is covered in the policy even of the employee or the labourer engaged in the vehicle. .

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The Hon'ble Supreme Court in case of New India Assurance Company Ltd. Vs. Asha Rani & Others, reported in (2003) 2 SCC 223, considered the liability of the insurance company to indemnify the

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insured where the owner or authorized representative of owner of the goods is traveling in the goods vehicle and suffered injury and held as

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under :-

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“9……….The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression “including owner of the goods or his authorised representative carried in the vehicle” which was added to the pre-existing expression “injury to any person” is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal case [New India Assurance Co. v. Satpal Singh, (2000) 1 SCC 237 : 2000 SCC (Cri) 130] therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of the goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury.”

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In case of National Insurance Company Ltd. Vs. Baljit Kaurm, reported in (2004) 2 SCC 1, the Hon'ble Supreme Court relying upon its earlier decision in case of Asha Rani (supra) has held thus :-

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“ 19. In Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.

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20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.

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21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh [(2000) 1 SCC 237 : 2000 SCC (Cri) 130] . The said decision has been overruled only in Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] . We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a

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proceeding before the 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. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.”

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In view of the aforementioned decision of the Hon'ble Supreme Court and considering the fact that the deceased at the time of accident was traveling in the goods vehicle and further considering that the owner of the vehicle has not paid any premium with respect to labourer, hence, in the opinion of this Court, learned Claims Tribunal erred in recording a finding that deceased was travelling as labourer and therefore, his risk is covered under the policy, is not sustainable and accordingly it is set-aside. Now it is the owner/Respondent No.5 of the vehicle who will be liable to satisfy the amount of compensation computed and awarded by the learned Claims Tribunal against the death of the deceased. The appellant/Insurance Company is exonerated from the liability to satisfy the amount of compensation awarded by the learned Claims Tribunal. It is ordered accordingly.

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However, in the facts of the case taking note of the decision of Hon’ble Supreme Court in case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796 as also the decision of Hon’ble Supreme Court in case of Shivraj Vs. Rajendra & Another , reported in (2018) 10 SCC 432, Amrit Paul Singh v. TATA AIG General Insurance Co. Ltd. , reported in (2018) 7 SCC 558, the Insurance Company/appellant is

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directed to first pay the amount of compensation and thereafter to recover the same from owner of the vehicle. It is made clear that the Insurance Company can recover the amount of compensation so paid as observed by the Hon’ble Supreme Court in case of Oriental

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Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224.

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Accordingly, the appeal is allowed in part.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Iffco Tokio General Insurance Company Ltd. v. Kadam Kunwar

Case brief

What is this about?

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Iffco Tokio General Insurance Company Ltd. v. Kadam Kunwar

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