Nafr High Court
Case Details
-1- 2025:CGHC:9133 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1927 of 2024 Shriram General Insurance Company Limited Head Office, E-8 Riicoi, Industrial Area, Sitapura, Jaipur (Rajasthan), Through - Regional Manager Having Regional Office At Plot No. 1, 4th Floor, Maruti Heights, Besides Sky Auto Maruti Dealer, Mahoba Bazar, Besides R.K, Mall, G.E. Road Raipur, District Raipur, Chhattisgarh.(Insurer) versus 1 - Ramesh Kumar Yadav S/o Roopnarayan Yadav Aged About 38 Years R/o Ward No. 3 Matin (Lodibahra), Post- Pachra, Tahsil Podi Uproda, District Korba, C.G. (Claimant). ... Appellant 2 - Ganesh Das Diwan S/o Roopchand Das Aged About 54 Years R/o Ward No. 1 Matin Lodibahra, Post- Bango, Tahsil Podi Uproda, District Korba, C.G. (Driver). 3 - Ashok Kumar S/o Nandraj Singh R/o Ward No. 15, Baikunthpur, Tahsil And District Korea, C.G. (Owner). ... Respondent(s) (Cause Title is taken from Case Information System) For Appellant : For Respondents : None though served.
Legal Reasoning
20. For the foregoing reasons and in light of law laid down by Hon'ble Supreme Court, in our considered opinion, learned Claims Tribunal has erred in holding that claimant failed to prove the injuries suffered by him in the accident with offending vehicle. 21. Learned Claims Tribunal also recorded that there appears to be a collusion between appellant and respondent-1, though from perusal of record, there is no such material available to arrive such a finding. The allegation of collusion is required to be proved by placing sufficient material and evidence on record and not on the basis of conjuncture and surmises.” 6) Given the said categorical finding by the Division Bench of this Court, the ground raised by the appellant with regard to lodging of the FIR at a belated stage is of no help. 7) Further, in the matter of Shamanna and another Vs. The Divisional Manager, The Oriental Insurance Company Limited and others, AIR 2018 SCC 3726, the Hon’ble Supreme Court has held that the driver of the vehicle not possessing a valid driving license, even though the insurer would be liable to pay compensation amount to claimants and recover the same from the owner of the vehicle. The relevant para- 5 is reproduced herein below:- "5. In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh and others [(2004) 3 SCC 297], the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. Doctrine of "pay and recover" was considered by the Supreme Court in Swaran Singh case wherein the Supreme Court examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the -5- third party and the insurance company may recover the same from the insured. Elaborately considering the insurer's contractual liability as well as statutory liability vis-a-vis the claims of third parties, the Supreme Court issued detailed guidelines as to how and in what circumstances, "pay and recover" can be ordered vide para 110 of its judgment. “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. (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 wherefore 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. -6- (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 fulfill the requirements of law or not will have to 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 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 -7- 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 there under 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,” (Underlining added) 8) Taking into consideration the facts and law discussed above, I do not find any good ground to interfere with the award passed by the learned Claims Tribunal. Accordingly, this appeal fails and is hereby dismissed. (Rakesh Mohan Pandey) Judge Sd/- NADIM
Arguments
Shri P. R. Patankar, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board 21.02.2025 1) The appellant has challenged the award dated 10.05.2024 passed by IInd Motor Accidents Claims Tribunal Katghora, District Korba, Chhattisgarh, in Claim case No. 7/2020, whereby the learned Claims Tribunal passed an award to the tune of -2- Rs. 53,868/- with interest @ 6 % from the date of filing of the claim case. 2) Mr. P. R. Patankar, learned counsel appearing for the appellant would submit that on 14.11.2019, at about 6.00 pm, the deceased Laxman Lal Yadav and Ramesh Kumar Yadav were traveling in a Bolero vehicle bearing registration No. CG-16-7008, which was driven by Ganesh Das Diwan and due to rash and negligent driving, the vehicle got dashed into a tree resulting in an accident and the death of Laxman Lal Yadav and also causing injuries to Ramesh Kumar Yadav. He would further submit that respondent No.1/injured filed a claim case claiming therein compensation of Rs. 27,20,000/- on the ground that he was aged about 38 years and used to earn Rs. 15,000- 18,000/- per month while working as a shopkeeper. He would contend that the driver of the offending vehicle did not have an effective driving license and the FIR was registered 42 days after the date of the incident; thus, the learned tribunal committed an error of law in fastening the liability on the insurance company. 3) I have heard Mr. Patankar and perused the record. 4) The learned tribunal has recorded a finding that the driver of the vehicle had an LMV driving license and it was valid for the period from 25.03.2014 to 05.12.2019, but there was no endorsement to drive the transport vehicle. It was also observed by the learned tribunal that the driver of the vehicle did not have a valid and effective driving license, but at the same time, the order of pay and recover was passed. -3- 5) With regard to the delay of 42 days in lodging the FIR, the Division Bench of this Court in MAC No.903 of 2013 (S. Kumar Sahu v. Janak Lal Pandey & others), relying upon the judgment of the Hon’ble Supreme Court rendered in the case of Ravi v. Badrinarayan & ors, [(2011) 4 SCC 693, observed in para 19-21 as under:- “19. Hon'ble Supreme Court in case of Ravi Vs Badrinarayan and others reported in (2011) 4 SCC 693 has held thus :- “17. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. 19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging -4- thereof supported by cogent reasons.”