High Court · 2025 on 10 Jul 2025

Judgment

1. Learned counsel for the appellant Shri Vasudeo Mishra has filed his objections to the cross objection as well as the copy of the certificate of the insurance policy and it is taken on record.

2. Heard Shri Vasudeo Mishra, learned counsel for the appellant and Shri G. C. Verma, learned counsel appearing for the claimants-respondents no.1 to 6. None has put in appearance on behalf of the respondent no.7, who is the owner and driver of the offending vehicle.

3. The record indicates that Shri Akashdeep Shukla, learned counsel had filed his Vakalatnama. His name is also duly printed in the cause list and significantly on - 2 -

08.07.2025, this Court had requested the counsel for the claimants to inform Shri Akashdeep Shukla of the order passed fixing today as the next date which was received by and a copy of the said receiving has been provided to this Court which is taken on record. Despite the same, the

counsel for the respondent no.7 has not put in appearance, consequently the Court has proceeded to hear the parties on the matter in this regard

4. Learned counsel for the appellant assails the award dated 21..05.2013 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.03, Lakhimpur Kheri in Claim Petition No.50 of 2012 whereby in a petition preferred under Section 163-A the Motor Vehicles Act, 1988 an award dated 21.05.2013 for a sum of Rs.3,21,500/- alongwith 7% interest has been made in favour of the claimant-respondents no.1 to 6 and the liability to service the award has been fastened on the appellant.

5. The record would indicate that the respondent no.1 claimant had put in appearance in the instant appeal on caveat which was first considered by this Court by means of order dated 12.09.2013, whereafter on 13.12.2013, the delay in filing the appeal was condoned and the matter was admitted to be considered on its merit. - 3 -

6. On 13.12.2013, a Co-ordinate Bench of this Court had clearly noticed that Shri G. C. Verma, learned counsel had put in appearance on behalf of the respondents no.1 to 6, hence no steps were required to be taken for service on the said parties.

7. This is being noticed for the reason that the claimants no.1 to 6 had filed cross objection bearing No.5 of 2019. On

15.05.2019, approximately after about six years from the date, the appeal was admitted. The said cross objection are accompanied by an application seeking condonation of delay and by the said objections, the claimants are primarily seeking enhancement in the compensation.

8. This issue shall be considered later since the appeal has been preferred by the appellant assailing the award, consequently the Court proposes to first consider and decide the appeal on its merit.

9. The sole contention of the learned counsel for the appellant is that in the instant case, no driving license of the owner/driver was placed on record. Despite a specific issue having been framed, a finding was returned that it is a case of no license. It is urged that despite recording the aforesaid finding while answering issue no.2, the Tribunal has erred in directing that the award would be serviced by the Insurance Company. - 4 -

10. It is urged that it is only in cases where there is an infraction in the validity of the license or violation of certain policy conditions which are not fundamental or in a case of fraud or a fake license, the Courts may direct the Insurance Company to pay but simultaneously the right to recover is to be provided. However, in cases where it is a case of no license, no liability can be fastened on the Insurance Company and in the instant case after having recorded the said finding while dealing with the issue no.2, the Tribunal has erred in fastening the liability on the insurance company coupled with a graver error of not granting the right of recovery which has vitiated the award. In the aforesaid circumstances, it is urged that the award dated 21.05.2013 deserves to be modified. Learned counsel for the appellant has fairly submitted that in so far as the quantum is concerned, that is not being disputed.

11. Learned counsel for the claimant-respondents submits that in light of the Constitution Bench decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Swarn Singh and others (2004) 3 SCC 297, it is provided that even in case no license, it is the Insurance Company which will pay and then it will have right to recover. Even assuming and agreeing to the interpretation as placed by the learned counsel for the claimant-respondents - 5 - the fact remains that there is no challenge to the findings contained in issue no.2 i.e. relating to the case of being no license. Once it is a case of no license then keeping equity in mind, if at all the Insurance Company was directed to pay the award even then right of recovery should have been provided, which has not been done, hence to that extent the submission of the counsel for the appellant cannot be disputed even by the counsel for the claimant-respondents.

12. However, the learned counsel for the claimants has further indicated that in proceeding under Section 163-A of the Act, 1988, the Tribunal erred in not granting compensation under the conventional heads as well as it has misapplied the multiplier. No sufficient amount has been granted towards consortium as well as loss of estate and funeral expenses. Accordingly, the award deserves to be enhanced.

13. It is further urged that this aspect has been raised by the respondents by filing the cross objections which are connected with the appeal. This cross objection seeking enhancement has been vehemently opposed by the learned counsel for the appellant Insurance Company on the premise that the same is hugely time bared. A cross objection was filed in terms of Order 41 Rule 22 CPC and the said provision itself provides for an inbuilt mechanism as well as the period - 6 - of limitation and i.e. 30 days from the date, when the memo of appeal is served on the respondents.

14. It is urged that in the instant case even though the appeal preferred by the Insurance Company was filed with delay but the fact remains that the respondents were aware as they were served since they appeared on caveat. Even on the date of admission of the appeal, i.e. vide order dated

13.12.2013, the presence of respondents were shown and in case if the accompanied affidavit seeking condonation of delay is seen, it is pointed out that there is no explanation worth its name regarding the sufficiency of cause for seeking condonation of delay of six years.

15. It is in the aforesaid backdrop, it is urged that the cross objections are liable to be dismissed at the threshold on the ground of limitation and even otherwise in terms of section 163-A, there is no scope for enhancement as in terms of the Second Schedule appended to the Motor Vehicle Act, 1988 at the given point of time when the award was made appropriate measures have been taken by the Tribunal and as such the award does not require any interference, hence cross objections deserve to be dismissed and the appeal for the Insurance Company deserves to be allowed.

16. Having considered the aforesaid submissions and from the perusal of the material on record, it would reveal that on - 7 -

18.12.2011, in an accident the deceased Sunita Devi met with her maker. An offending vehicle bearing number U P 31 K-3207 which was being driving rashly and negligently, hit the said lady, as a consequence of which she had expired. It is in the aforesaid context that the claim petition bearing No.50 of 2012 came to be filed. The owner/driver of the vehicle as well as the Insurance Company, after service, filed their respective written statements and upon exchange of the pleadings, four issues were framed.

17. For the instant controversy, the issue no.2 relates to the subsistence of driving license as to whether it was valid and issue no.3 related to the fact as to whether the offending motorcycle was being run in terms of the policy conditions.

18. The record further reveals that the respondents did not file any documentary or oral evidence. It is in the aforesaid backdrop that the Tribunal while holding that the accident occurred with the offending vehicle bearing number U P 31 K-3207 but since the petition was preferred under section 163-A hence, the negligence, was not required to be proved. It then went on to calculate the compensation and awarded a sum of Rs.3,21,500/- alongwith 7% interest.

19. The record also reveals that while dealing with issue no.2, the Tribunal categorically noticed that none of the - 8 - parties had filed the copy of the driving license, hence it was a clear case of no license. While dealing with the issue no.3, the Tribunal noticed that though the vehicle was insured but its driver did not have a license. Despite the aforesaid observations, still it held that the vehicle was being plied as per the policy conditions and thereafter it saddled the award on the shoulders of the Insurance Company.

20. In the aforesaid backdrop as well as the submissions of the respective parties the undisputed fact that emerges from the record is : (i) despite the owner driver having contested the proceedings by filing his written statement, the license was not placed on record; (ii) the vehicle in question was insured for the relevant period with the Oriental Insurance Company Limited; (iii) the petition has been preferred under section 163-A, consequently the rrequirement of Section 166 of the Motor Vehicle Act,1988 to prove the negligence stood dispensed.

21. As far as this Court is concerned, the contextual issue that requires to be adjudicated is : (i) whether the liability could have been fastened on the Insurance Company as there was no license with the driver of the offending vehicle?; (ii) whether the cross objections filed after six years of delay, its delay could be condoned? - 9 -

22. As far as the first issue is concerned, this may not detain this Court for long as this issue has been considered by the Apex Court in the Constitution Bench decision in the case of National Insurance Company Ltd. vs. Swaran Singh, reported in (2004) 3 SCC 297, the Hon'ble Apex Court while considering under what circumstances, the liability would vest with the insurance company on breach of the driving licence, has been held as under:- "(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, 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 said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance 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 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 insured 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 - 10 - licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case."

23. This aspect has been considered in several decisions of this Court as well as of the Apex Court at different point of time and it is a consistent view that in case where there is no license then ordinarily liability should not be fixed on the Insurance Company.

24. Learned counsel for the claimant-respondents could not cite any decision contrary to the aforesaid, however, as part of the submissions, he has relied upon paragraph 110 or the decision of the Apex Court in Swaran Singh (supra). However, this Court finds that may not be an accurate reading of the aforesaid paragraph as has to be seen in the context with what the Apex Court has held and thus for the aforesaid purpose the paragraphs which have been quoted herein above by this Court would be relevant and that leads no ambiguity to contend that in case of no license, Insurance Company cannot be subjected with the payment of compensation and if done then right to recover it from the owner should be granted. Thus, this Court finds that the submissions of the learned counsel for the appellant Insurance Company has some substance.

25. In so far as the issue regarding the cross objection is concerned, it could not be disputed by the counsel for the - 11 - claimants that he had appeared on caveat and right from the date the appeal was admitted, his presence was marked not only on behalf of the respondent no.1 but for all the claimant-respondents no.1 to 6 as shall be evident from the order dated 13.12.2013 passed by the Co-ordinate Bench of this Court which is being reproduced hereinafter:- "Heard. Admit. Issue notice. Mr. G.C. Verma, learned counsel has put in appearance on behalf of respondent nos. 1 to 6, hence no steps are required to be taken for service on respondent nos. 1 to 6. The appellant shall take steps for service of notice on respondent no. 7. Learned counsel for appellant submits that the learned Tribunal has come to conclusion in its finding that the driver of the offending vehicle was not having a valid license at the time of occurrence of the accident, however, the learned Tribunal has committed gross illegality in holding that in a claim petition filed under Section 163-A Motor Vehicles Act the license of driver of the offending vehicle is not required to be seen, it will not make any difference whether the driver was having a valid driving license or not. The matter requires consideration. List after service. In the meantime, in case the appellant deposits the entire amount under impugned award after adjusting the statutory amount within a period of four weeks from today before the learned Tribunal, the judgment and award dated 21.5.2013 passed in MACP No. 50 of 2012 (Bharat Prasad and Others Vs. Bharat Prasad and Another) shall remain stayed. The amount so deposited shall be invested in an interest bearing fixed deposit account in some Nationalized Bank for initial period of two years. The respondents-claimants would be at liberty to move an appropriate application for release of the deposited amount or vacation of the interim order, which would be considered at the appropriate time"

26. In light of the aforesaid, there can be no dispute that the service of the appeal on the claimant-respondents had taken place on 13.12.2013. Before considering the ground - 12 - shown by the claimants, it will be appropriate to refer to the provisions of Order 41 Rule 22 CPC which provides for filing of a cross objection as well as its limitation and the said provision reads as under:-

22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.-- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation-A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto-- Such cross-objection shall be in the form of a memorandum, and the provisions of rule, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) [*****] (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule.

27. Once having taken note of the statutory provision and the limitation involved therein which is 30 days from the date of service, now in this backdrop, it will be relevant to take note of the affidavit filed by the claimants seeking - 13 - condonation of delay of about six years and paragraphs 2 to 8 are being reproduced hereinafter for reference:- "2. That on 22.05.2013, the impugned judgment and award dated 21.05.2013 came to knowledge of the deponent.

3. That it has been held by Hon'ble Apex Court as well by this Hon'ble Court the justice is above all. Neither rule of procedure nor technicalities of law can stand in its way, even law bends before justice.

4. That the impugned judgment and award has been passed by the learned court below without considering facts and circumstance of the case and also without considering the evidence on record, hence the impugned award liable to be set aside to the extent of enhancement.

5. That the learned Claim Tribunal has wrongly interpreted the provision of section 166 of the Motor Vehicle Act.

6. That in case of improvement Trust Ludhiana Versus Ujagar Singh, reported in 2010 (111) RD 89, the Hon'ble Supreme Court has held that the justice caan be done only when the matter is fought on merit.

7. That in the case Hari Bhai Laxman Seedhav Versus State of Gujrat and other, reported in 2009 (27) LCD 1645. Hon'ble Supreme Court has condoned the delay of 10 years in filing Special Leave Petition.

8. That in case of State of Nagarland Versus Lipok AO and others reported in (2005) 3 SCC 752, the Hon'ble Supreme Court has held that if by not condoning the delay, applicants/appellants are deprived from justice, it is sufficient ground for condoning the delay."

28. From the perusal of the aforesaid quoted paras of the affidavit, it would indicate that in para-2, the claimants had admitted that the judgment and award under challenge came to be notice of the claimants on 22.05.2013 apart from this averment, there is no statement of fact or any cause shown what so ever as to why the cross objections could not be filed earlier i.e. within the period of limitation. - 14 -

29. The claimants had merely referred to certain decisions of the Apex Court to buttress the submissions that the issue of delay must be viewed librally, however, with utmost respect to the decisions as mentioned in the affidavit. In all the decisions, the Apex Court has provided that the delay may be condoned as for as possible provided that there is some explanation given.

30. This Court is reminded of a decision of the Apex Court in N. Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222 wherein wherein the Apex Court has clearly held that it is not the length of delay which is material rather it is the sufficiency of cause which has to be looked into. In case where sufficient cause is shown then even a long delay can be condoned but vise versa if no cause has been shown or an insufficient cause is shown, then even a short length of delay may not be condoned.

31. Applying the aforesaid principles to be instant case as well as the averments made in the affidavit, this Court finds that the said affidavit filed by the claimants is completely bereft of any reason whatsoever. Even if this Court may feel tempted to grant any relief even then in absence of any cause shown, this Court is constrained to note that the delay cannot be condoned as there is no cause much less a sufficient cause shown to condone a delay of about six years - 15 - at all.

32. In view of the aforesaid, this Court has no hesitation to hold that the cross objections filed by the claimant- respondents are hugely time barred without any explanation, hence it cannot be entertained, accordingly they are dismissed on the ground of limitation.

33. As far as the award under challenge by the Insurance Company is concerned, in light of the discussions made herein above, this Court is not inclined to interfere with the award dated 21.05.2013 except for a limited purpose that the amount as granted under the award shall be first paid by the Insurance Company to the claimants thereafter it will be entitled to recover the same from the owner i.e. the respondent no.7. All other findings remain intact. First Appeal From Order No.854 of 2013 is partly allowed. Cross Objection No.5 of 2019 is dismissed. Costs are made easy.

34. Any amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants alongwith the update interest and any shortfall may also be made within 60 days from today.

35. The record of the Tribunal be returned forthwith. Order Dated:-10.07.2025 ank/-