The Oriental Insurance Company Limited Vs Kunwar Singh Keshar

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1

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 2226 of 2019

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The Oriental Insurance Company Limited B-22, Indira Bihar, Sipat Road, Bilaspur Rishi Gas Industrial Estate, Bilaspur (Chhattisgarh) (Insurance Company Tractor No. C.G.22 Ac/8178, And Trolly No. C.G.28-B/4297), District : Bilaspur, Chhattisgarh

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... Appellant

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Digitally SAIFAN signed by KHAN SAIFAN KHAN

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Versus

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1 - Kunwar Singh Keshar S/o Kodu Singh Keshar Aged About 60 Years Resident Village- Gidha, Thana City Kotwali, Mungeli District Mungeli Chhattisgarh.................Claimant, District : Mungeli, Chhattisgarh

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2 - Smt. Pushpa Keshar W/o Kunwar Singh Keshar Aged About 55 Years Resident Village- Gidha, Thana City Kotwali, Mungeli District Mungeli Chhattisgarh.................Claimant, District : Mungeli, Chhattisgarh

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3 - Tulsi Sahu S/o Malikram Sahu Aged About 22 Years Resident Singarpur, Thana Bhathapara, District Baloda Bazar Chhattisgarh.................(Driver Of Tractor No. C.G.22 Ac/8178, And Trolly No. C.G. 28-B/4297), District : Balodabazar-Bhathapara, Chhattisgarh

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4 - Ramkumar Sahu S/o Chhotu Lal Sahu Aged About 65 Years Resident- Hathkera Bhanthapara, District Mungeli Chhattisgarh. (Owner Of Vehicle Tractor No. C.G. 22 Ac/8178, And Trolly No. C.G. 28-B/4297), District : Mungeli, Chhattisgarh

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... Respondents

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[Cause-title taken from Case Information System (CIS)]

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------------------------------------------------------------------------------------------------ For Appellants : Ms. Prerana Agrawal, Advocate on behalf of Mr. Sudhir Agrawal, Advocate For Respondent No.4 : Mr. Praveen Dhurandar, Advocate ------------------------------------------------------------------------------------------------

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Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal

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(Order on Board)

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16.04.2026

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1. In this appeal filed under Section 173 of the Motor Vehicle Act,

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2

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1988 (for short the “MV Act”) the appellant- Insurance Company is questioning the award dated 02.08.2019, whereby learned Claims Tribunal has awarded compensation of Rs.4,94,000/- to the claimants on account of death of Suraj Kehsar, who died in road accident on 03.12.2017 and the said amount is held to be payable by the appellantInsurance Company.

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2. Learned counsel for the appellant submits that though application under Order 11 Rule 12 of CPC was filed by the Insurance Company to produce the driving license by the owner and driver of the offending vehicle, but the said application was rejected by the learned Claims Tribunal on 23.01.2019 and the driving license could not be produced. The driver of the offending vehicle proceeded ex-parte and, therefore, the fact that the driver of the offending vehicle was having valid and effective driving license on the date of accident was not established. Even, the owner of the offending vehicle neither produced the driving license nor he was examined before the Claims Tribunal. As such, the Insurance Company is not liable to pay the amount of compensation. Learned counsel also submits that at the best, doctrine of pay and recover would be applicable under the facts and circumstances of the present case.

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3. On the other hand, learned counsel appearing for the owner/respondent supported the impugned award and prays for dismissal of this appeal by stating that it was the responsibility of the Insurance Company to prove that the driver of the offending vehicle was not having valid and effective driving license to ply the same on the date

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3

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of accident, which they have failed to do and, therefore, the learned Claims Tribunal has rightly fastened the liability to pay the compensation upon the Insurance company.

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4. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the record with utmost circumspection.

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5. In the case at hand, definitely the Insurance Company took a plea that the driver of the offending vehicle was not having valid and effective driving license to ply the same on the date of accident and, in order to prove the said fact, an application under Order 11 Rule 12 of CPC was filed before the Claims Tribunal, but eventually the said application stood rejected on untenable ground. Thereafter, neither the owner produced the driving license nor he entered into the witness-box to be examined before the Claims Tribunal. As such, the learned Claims Tribunal ought not to have rejected the application filed by the Insurance Company under Order 11 Rule 12 of CPC and could have directed the owner of the offending vehicle to produce the driving license of the driver. Even, the owner could himself produce the driving license of the driver of the offending vehicle to clear the doubt of the Court as whether on the date of accident the driver of the offending vehicle was having valid and effective driving license or not. Furthermore, the evidence led by the Insurance Company in shape of statement of their Officer, namely, Jitendra Kuamr Sinha (Witness No.1) would also show that he has clearly stated that the on the date of accident the driver of the offending vehicle was not having valid and effective driving license to

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ply the offending vehicle and there is no cross-examination to the said fact on behalf of the owner of the offending vehicle. Therefore, the plea of the Insurance Company that the driver of the offending vehicle was not having valid and effective driving license to ply the same on the date of accident could not have been rejected by the Claims Tribunal.

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6. In that view of the matter, I of the considered opinion that doctrine of pay and recover is clearly applicable in the present. As such, in light of the decision of the Supreme Court rendered in National Insurance Co. Ltd. v. Swaran Singh1 , it would be expedient to direct the appellant– Insurance Company to firstly pay the entire amount of compensation along with interest to the claimants within 45 days from the date of receipt of copy of this order and, thereafter, recover it from the owner of the offending vehicle i.e. respondent No.04 herein. It is ordered accordingly.

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7. With aforesaid direction and modification with regard to the order of pay and recover, this appeal stands finally disposed of. No cost.

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s@if

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1 (2004) 3 SCC 297

The Oriental Insurance Company Limited v. Kunwar Singh Keshar

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The Oriental Insurance Company Limited v. Kunwar Singh Keshar

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