PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA • The Oriental Insurance Company v. 1
Case Details
1 / 6 2025:CGHC:35895 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 507 of 2019 PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA • The Oriental Insurance Company Limited Branch Office, Beside of M.I.C. Office, Railway Station Road, Rajnandgaon, Tahsil and District - Rajnandgaon Chhattisgarh. ---(Insurer) --- Appellant/Non-applicant No. 9 versus 1. Smt. Indarbati Bai Nishad W/o Shri Ramdas Nishad Aged About 59 Years 2. Tularam Nishad S/o Late Shri Ramdas Nishad Aged About 42 Years
Legal Reasoning
3. Ramesh Nishad S/o Late Shri Ramdas Nishad Aged About 36 Years 4. Hemu Nishad S/o Late Shri Ramdas Nishad Aged About 30 Years All are R/o Village Konari, Tahsil Dongargaon, District - Rajnandgaon Chhattisgarh. ---(Claimants) 5. Suresh Kumar Sahu S/o Shri Shatrughan Lal Sahu Aged About 40 Years R/o Village Singhola, Police Station Lalbag Rajnandgaon Chhattisgarh. ---(Driver of Bajaj Platina Bearing Registration No. C.G. 08-J-1049) 6. Khilesh Kumar Sahu S/o Shri Chowaram Sahu Aged About 27 Years R/o Village- Maretha, Nawagaon, Police Station- Rajnandgaon, Tahsil- Dongargaon, District- Rajnandgaon, Chhattisgarh........ Owner of Bajaj Bearing Registration Platina No. C.G. 08- J- 1049. 7. Fulbai Nishad W/o Madan Lal Nishad Aged About 47 Years R/o Village- Singdei, Tahsil And District- Rajnandgaon, Chhattisgarh. 8. Fulbasan Nishad W/o Devilal Nishad Aged About 45 Years R/o Village- Dhaamsara, Tahsil And District- Rajnandgaon, Chhattisgarh. 9. Kaina Bai Nishad W/o Dilip Nishad Aged About 43 Years R/o Village- Faranfod, Police Station- Devri, Devri Bangla, Tahsil- Dondilohara, District- Balod, Chhattisgarh. 10. Sukhbai W/o Ramji Nishad Aged About 39 Years R/o Village- Pandutola, Tahsil- Ambagarh Chowki, District- Rajnandgaon, Chhattisgarh. 11. Belbai Nishad W/o Amoli Nishad Aged About 39 Years R/o Village- Dhodhiya, Tahsil And District- Rajnandgaon, Chhattisgarh. 12. Hembai Nishad W/o Ganeshwar Nishad Aged About 28 Years R/o Village- Tatrenga, Police Station- Gendatola, Tahsil- Chhuriya, District- Rajnandgaon, 2 / 6 Chhattisgarh........Respondent No. 8 to 12 are Daughters of the Deceased., District : Rajnandgaon, Chhattisgarh ____________________________________________________________ For Appellant : Mr. Anil Gulati, Advocate For Respondents No. 1 to 12 : None appeared, though served. ---Respondents Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 24/07/2025 1. Appellant-insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 03.12.2018 passed by Learned Additional Motor Accident Claims Tribunal, FTC, Rajnandgaon, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 133/2016, whereby learned Claims Tribunal allowed the application filed by applicants-claimants therein under Section 166 of the Act of 1988 in part, awarded total sum of ₹ 3,63,200/- as compensation in motor accidental death case and fastened liability upon non-applicants therein jointly and severally. 2. Motor accident on 09.04.2016 at about 06:00 am near village Konari by the motorcycle bearing number CG08 J 1049 (henceforth referred as “offending motorcycle”) driven by non-applicant No. 1 rashly and negligently and death of Ramdas Nishad (deceased) is not in dispute. The insurance company has filed this appeal challenging fastening of liability upon it to satisfy award, even after recording finding that there was breach of policy conditions. 3. For the foregoing discussion, this Court is not dealing with the facts of case as pleaded by the parties in their claim application, reply to the claim application and further adverted in the impugned award but only considering the ground raised by the insurance company challenging fastening of liability upon it. 3 / 6 4. Learned counsel for appellant-insurance Company would submit that the Claims Tribunal erred in fastening liability upon the Insurance Company to satisfy the amount of compensation even after recording a fact that it is appearing from the documents available on record that non-applicant No. 1 was not possessed with valid driving licence. He also contended that the Claims Tribunal after recording a fact that there was no driving licence with non-applicant No. 1, further recorded that the insurance company failed to prove breach of policy conditions, which is erroneous in the facts of the case. After accident, police registered crime, charge-sheet was also filed against non-applicant No. 1 for offence under Section 304-A of IPC read-with Section 3/181 and 5/181 of the Act of 1988. He submits that in the facts of the case where the driving licence is not seized by the police during course of investigation of crime, there was no material before the appellant-insurance company to conduct any further enquiry or verify the driving licence whether to be genuine or forged. He also submits that it is primarily duty upon the owner and driver of the offending vehicle to submit information along with relevant documents of the offending vehicle. The answer of the Claims Tribunal that the appellant-insurance company failed to prove the fact of no licence, is perverse to the documentary and oral evidence available on record. 5. 6. 7. There is no representation on behalf of Respondents No. 1 to 12, though served. I have heard learned counsel for the respective parties and also perused the record. Perusal of record would show that the claimants in support of claim application have submitted relevant documents of criminal case prepared by the police. Seizure memo is also filed as Ext. P-3. By the said seizure, police sized motorcycle bearing number CG08-J-1049, RC book of vehicle and 4 / 6 insurance policy. No other documents are shown to be seized on the said date. Police submitted Final Report after investigation of the crime. In these documents also, copy of licence is not enclosed which shows that the investigating agency also was not having knowledge about the licence in the name of non-applicant No. 1. 8. Provision under Section 134 of the Act of 1988 talks about the Duty of driver in case of accident and injury to a person. Provision 134(c) envisages that duty of the owner to give information in writing to insurer who has issued certificate of insurance about occurrence of accident. In column 1(c)(iv) it is clearly mentioned that it is duty of driver to submit copy of licence along with name of driver and under explanation it is further mentioned that for the purpose of this section, expression driver includes owner of the vehicle. Meaning thereby the owner is having same liability and responsibility to submit all the relevant documents including driving licence of the driver before the Insurance company. 9. Upon careful perusal of the entire record, it emerges that the Claims Tribunal, while observing that the driving licence of the driver of the offending vehicle was not produced, has nevertheless recorded a categorical finding that the appellant-insurance company failed to prove any breach of the terms and conditions of the policy. It is further noted that the insurance policy itself is conspicuously absent from the record. Perusal of the order-sheets of the proceedings of claim case reveal that non-applicant No. 3 — the insurance company — despite being afforded several opportunities to adduce evidence in support of its defence, failed to examine any witness. Even the application moved by the insurer seeking further time to lead evidence did not disclose the names of the proposed witnesses, nor did it annex any medical prescription or document in support of the plea that the law officer of 5 / 6 company was unwell. This indicates a lack of due diligence and a complete absence of substantive evidence to support the defence raised. 10. In these circumstances, where the insurance company neither brought the policy on record nor produced any cogent evidence to establish the alleged breach, it cannot be held that there was any violation of the terms of the contract of insurance by the insured. The law is well settled that once the insurer raises a defence, the onus lies squarely on it to establish the same. This principle was lucidly enunciated by the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh & Ors., reported in (2004) 3 SCC 297, wherein it was held that the insurer must prove by positive evidence that the insured committed a breach of a specific condition of the policy. Mere absence, non-production, or non-exhibition of a driving licence does not amount to a breach unless the insurer proves that such absence was wilful and that the insured was guilty of negligence in this regard. 11. In case of Pappu & Ors. v. Vinod Kumar Lamba & Anr., reported in (2018) 3 SCC 208, Hon’ble Supreme Court reiterated that the burden to establish that the driver did not possess a valid and effective licence is upon the insurer once such a plea is raised, and the same must be discharged by producing cogent and reliable evidence. 12. In the case at hand, the appellant-insurance company failed to discharge the said burden. The Claims Tribunal, however, erroneously shifted the burden onto the claimants to prove that the driver was holding a valid and effective driving licence. Such shifting of onus is contrary to the settled legal position laid down by Hon’ble Supreme Court in the aforementioned decisions. The finding of the Tribunal on Issue No. 4 that breach of policy condition is not found proved, does not suffer from any infirmity. 13. The appellant-insurance company failed to prove, by any credible evidence, breach of any term or condition of the insurance policy. Consequently, no 6 / 6 breach of the policy conditions stands established against the insured in the present case. 14. For the foregoing discussion, I do not find any good ground to interfere with impugned award passed by learned Claims Tribunal. 15. For the foregoing discussion, I do not find any merit in this appeal. The appeal being sans merit is liable to be and is hereby dismissed accordingly. pwn Sd/- (Parth Prateem Sahu) Judge