MOHLE v. Balram Tandan

Mr. Praveen K. Dhurandhar, Advocate None though served. : Mr. Sudhir Agrawal, Advocate along with Mr. Shashank Agrawal and Ms. Prerana Agrawal, Company Advocates 2 Hon’ble Shri Justice Rakesh Mohan Pandey Judgment on Board 13/01/2026

1. The claimants have filed this appeal assailing the award passed by the learned IInd Additional Motor Accident Claims Tribunal to the I st Additional Motor Accident Claims Tribunal, Durg, passed in Claim Case No. 102/2019 dated 04.10.2019, whereby the learned Tribunal granted compensation to the tune of Rs. 6,86,044/- with interest @ 7% per annum and fastened liability upon the driver-cum-owner of the offending vehicle.

2. The facts, in brief, are that on 27.10.2018 at around 7.30 p.m., the deceased Khemlal was dashed by the rider of the motorcycle bearing registration No. CG-7-BM-5871. Resultantly, he sustained injuries and succumbed to the same. The claim case was filed by the major sons of the deceased under Section 166 of the Motor Vehicles Act, 1988, wherein they pleaded that at the time of accident, the age of the deceased was 55 years and he was earning Rs. 8,000/- per month. The owner as well as the Insurance Company filed their replies and denied the averments made in the claim petition. The Insurance Company took a specific plea that the rider of the offending motorcycle did not have a valid and effective driving licence on the date of the accident.

3. The learned Tribunal framed issues, the parties led evidence, and thereafter the award was passed. The learned Tribunal recorded a specific finding that the driver-cum-owner of the offending motorcycle did not possess a driving licence on the date of the accident and, thus, the liability was fastened upon respondent No. 1/the owner of the offending vehicle. 3

4. Mr. Praveen K. Dhurandhar, learned counsel appearing for the appellants would submit that the offending vehicle was insured with the Insurance Company, but the driver-cum-owner of the offending vehicle did not have a valid driving licence, therefore, Insurance Company has been exonerated and the liability has been fastened upon the driver-cum-owner of the offending motorcycle. He has placed reliance on the judgments passed by the Hon’ble Supreme Court in the matters of National Insurance Co. Ltd. v. Swaran Singh (2004) 3 SCC 297; Shamanna v. Divisional Manager, Oriental Insurance Company Limited, (2018) 9 SCC 650; Jawahar Singh v. Bala Jain (2011) 6 SCC 425, & Parminder Singh v. New India Assurance Company Limited (2019) 7 SCC 217.

5. He would further submit that the learned Tribunal ought to have directed the Insurance Company to satisfy the award first and thereafter recover the same from the driver and owner of the offending vehicle.

6. Mr. Dhurandhar would also submit that the learned Tribunal has assessed the income of the deceased at Rs. 7,000/- per month, which is on the lower side. He would contend that according to the minimum wages matrix, the minimum wages admissible to an unskilled labourer in the month of October, 2018 were Rs. 8,320/- and the learned Tribunal should have taken that figure while computing the compensation. He would further submit that as the age of the deceased was 55 years, the learned Tribunal should have granted compensation towards future prospects. He would pray for enhancement of the compensation accordingly.

7. On the other hand, Mr. Sudhir Agrawal, learned counsel appearing for the Insurance Company would submit that the claimants have failed to prove the income of the deceased by leading cogent evidence. He would further submit that the driver of the offending motorcycle had no driving licence; therefore, the learned Tribunal rightly exonerated 4 the Insurance Company; thus, he would pray that this appeal deserves to be dismissed.

8. I have heard learned counsel for the parties and perused the record.

9. In the present case, a specific finding has been recorded by the learned Tribunal that the driver-cum-owner of the offending motorcycle did not possess a valid and effective driving licence; therefore, the liability was fastened upon the owner-cum-driver of the motorcycle.

10. The Hon’ble Supreme Court in the matter of Swaran Singh (supra), it is held by the Supreme Court as under: “110. The summary of our findings to the various issues as raised in these petitions is as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act. (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. 5 (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. (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. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding 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. (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 t be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance companies would be liable to satisfy the decree. (ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes 6 inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.”

8. Reiterating the judgment of Swaran Singh (supra), the Hon’ble Supreme Court in the matter of Shamanna (supra), held as under: “6. As per the decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy 7 conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third-party risks. The Tribunal is required to consider “as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver … does not fulfil the requirements of law or not will have to be determined in each case”.