1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 227 of 2016 National Insurance Company Ltd. Through Branch Manager, Branch Kamptee Line, Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh......Insurer, ... Appellant versus 1 - Shyam Sunder Sharma S/o Jagdish Prasad Sharma, Aged About 24 Years Occupation Constable Wireless Department, R/o Old Civil Line Rajnandgaon, Tahsil And District Rajnandgaon Chhattisgarh.........Claimant, 2 - Sarvjeet Singh S/o Gurmeet Singh, Aged About 40 Years R/o Pachri Para Durg, Present Address Through Smt. Meena Rathore, D/o Prakash Rathore, R/o Near Agrasen Bhawan, Old Bus Stand Rajnandgaon, District Rajnandgaon Chhattisgarh........Driver, 3 - Smt. Meena Rathore D/o Prakash Rathore, Aged About 32 Years R/o Near Agrasen Bhawan, Old Bus Stand, Rajnandgaon, District Rajnandgaon Chhattisgarh ......Owner, ... Respondent(s) For Appellant : Shri Raj Awasthi, Advocate. For Respondent 1 : Shri Satyendra Shriwas appears on behalf of Shri Rakesh Thakur, Advocate. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Judgment on Board 03/02/2025 1. Heard this appeal and cross-appeal filed on behalf of respondent No.1 under Section 41 Rule 22 of the Code of Civil Procedure, 1908. 2. This is insurer’s appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, 'MV Act') aggrieved by award dated 17.09.2015 passed by the learned 1st Additional Motor Accident Claims Tribunal, Rajnandgaon (for short, the learned Tribunal) in Claim Case No.21//2014 whereby the learned Tribunal allowed the claim petition awarding total compensation of Rs.6,45,780/- along with interest @ 6% per annum from the date of filing of claim petition till its realisation, while Digitally signed by ANJANI KUMAR ALLENA Date: 2025.02.04 17:37:29 +0530 2 exonerating Non-applicant No.3/appellant – insurer herein from its liability, but directed it to make the payment first and then recover it from Non-applicants No.1 & 2 – driver and owner. It is not disputed that Non-applicant No.1 is the driver whereas Nion-applicant No.2 is the owner of the offending vehicle. Parties to this appeal are referred hereinafter as per their description before the Claims Tribunal. 3. As per averments in claim petition, on 17.01.2013, the claimant/respondent No.1, who is working as Constable in Police Department, was travelling in the Bus bearing registration No.C.G./08/B/5158 (for short, the offending vehicle Bus) towards Baloda Bazar to protect the law and order and on account of rash and negligent driving by its driver/Non-applicant No.1, the offending vehicle Bus turned turtle near Kamal Solvent situated on G.D.Road, as a result of which, he sustained injuries on his body and was admitted in District Hospital, Rajnandgaon, Sharda Hospital, Rajnandgaon and then in Ramkrishna hospital, Raipur. A claim petition was moved by respondent No.1/claimant seeking compensation to the tune of Rs.25,98,000/- on various heads, pleading, inter alia, that on account of injuries sustained in the accident, he had to be admitted in various hospitals and incurred huge expenses for treatment of his injuries. 4. The claim petition was resisted by the Non-applicants on various grounds including Non-applicant No.3/insurance company filed its written statement and denied the averments of the claim petition and pleaded that there is breach of terms and conditions of the insurance policy. 5. The learned Tribunal, on a close scrutiny of the evidence led, awarded above stated compensation in favour of the claimant/respondent No.1. 6. Learned counsel for the appellant/insurance company submits that though the offending vehicle Bus was insured with the appellant/insurance company on the date of accident, but at that time, the driver/Non-applicant No.1 Sarvjeet Singh was not having valid and effective driving licence and both the Non-applicants No.1 & 2 have not been examined before the Tribunal nor filed any appeal against the impugned award. The learned Claims Tribunal, after appreciating the evidence and 3 material available on record, has rightly come to the conclusion that although Non- applicant No.1/driver was having driving licence with respect to light motor vehicle but it was not renewed, therefore, on the date of accident he did not have valid and effective driving licence to drive the offending vehicle Bus and thus the said Bus was being driven in breach of policy conditions of the insurance. He further submits that injured/claimant is working as Constable and he was getting Rs.14,000/- in the year 2013 and his evidence was recorded on 10.02.2015 and as on that date he was getting Rs.19,000/- per month and as per evidence on record, no future treatment is required and that no loss of income has not been able to be proved by him although the claimant being in service. Lastly, he fairly submits that although the insurance company was exonerated but a direction has been issued to pay first and then recover the same from Non-applicants No.1 & 2, which is not sustainable and deserves to be set aside. 7. On the other hand, learned counsel for the respondent No.1 in this appeal and for the claimant in cross-appeal/objection seeking enhancement of compensation, submits that on account of accident, he sustained serious injuries including fracture of bones on his left hand and the entire hand has become limbless and that five-seven stitches were also put over his head and such serious and grievous injuries require future medical expenses, but the Tribunal has erred in not granting even single penny on such head. He further submits that loss of income during course of treatment and hospitalization along with compensation for permanent disability has also not been properly assessed by the Tribunal. 8. I have heard learned counsel for the parties and perused the award impugned including the record of the Tribunal. 9. Learned Claims Tribunal has framed as many as 7 issues, out of which, issue No.1 was decided in affirmative by recording a finding that on the date of accident, Non-applicant No.1 was driving the offending vehicle Bus in a rash and negligent manner and caused the accident, due to which, the claimant sustained serious and grievous injuries over his body. It is not in dispute that on account of injuries 4 sustained by him in the accident, he was admitted in various Hospitals including Ramkrishna Care Hospital, Raipur where he remained from 17.01.2013 till 14.02.2013. 10. It is also not disputed that injured/claimant is working in Police Department in Wireless Section and in his statement, he admitted that his current salary is Rs.19,000/- per month and that he was getting salary of Rs.14,000/- in the year 2013, as is evident from the document Ex.P.47. It is also admitted by him that after the year 2013, his salary has been increased to Rs.19,000/-. A perusal of his statement would show that he was examined on 10.02.2015 and as on that date he was getting Rs.19,000/- per month. It is pertinent to mention here that accident occurred on 17.01.2013 and he was examined before the Tribunal on 10.02.2015 and it appears that there was substantial increase in his salary between the period from 17.01.2013 and 10.02.2015. Only this piece of evidence would itself be sufficient to hold that there was no loss of income for the injured/claimant. He has further stated that Government has sanctioned Rs.3,00,000/- for his treatment and a sum of Rs.10,000/- is being deducted, but he did not produce any such document showing deduction of Rs.10,000/- per month from his salary. Further, Ex.P.43 would show that it is a estimation certificate issued by the Ramkrishna Care Hospital, Raipur and as per certificate, his treatment cost was estimated to be around Rs.3,00,000/-, but in fact, no such bill showing that much amount was incurred by him has not been produced by him. Had such document been produced by the claimant/injured, then he would have definitely compensated by the Tribunal. Moreover, the evidence on record would show that the claimant/injured produced medical bills totalling Rs.8,156/- and except these bills, there was no such document produced by the claimant/injured to prove that this much amount is required for future treatment. 11. Despite there being no sufficient documents produced by the claimant/injured, the Tribunal, on its own, assessed and awarded Rs.8,156/- towards expenses on treatment, Rs.5,82,624/- towards future loss of income, 5 Rs.50,000/- towards mental and physical agony and Rs.10,000/- for transportation and special diet and in this way, the Tribunal worked out total compensation to the tune of Rs.6,45,780/-, which in the considered opinion of this Court, cannot be a meagre amount of compensation. 12. Now, I shall deal with the statement of N.A.W.1 Satyendra Kumar Soni, who has been examined on behalf of insurance company/Non-applicant No.3. In his statement, N.A.W.1 Satyendra Kumar Soni, who is working as Assistant Grade-3 in the Office of R.T.O. Durg, has stated that as per Ex.D.1, which is an extract driving licence, it was of light motor vehicle issued on 22.07.2000 and valid upto 21.07.2020 and thereafter licence holder got an endorsement done in his licence on 30.10.2002 regarding transport vehicle and heavy passenger motor vehicle for which the valid date was till 30.10.2005. After that, it was renewed by him from 30.10.2005 to 30.10.2008 and again it was renewed from 30.10.2008 till 10.09.2009 but after 10.09.2009, it was not renewed. Therefore, having considered the facts and circumstances of the case and looking to the evidence and material documents available on record, the learned Claims Tribunal has come to the conclusion that the Non-applicant No.1/driver of the offending vehicle was not possessing valid and effective driving licence and that the offending vehicle was being plied in breach of policy conditions. In order to rebut the evidence of N.A.W.1 Satyendra Kumar Soni, the driver and owner of the offending vehicle Bus were not examined before the Tribunal. Therefore, the findings recorded by the learned Claims Tribunal are the findings of fact based on evidence and material available on record, the same are neither perverse nor contrary to record and I hereby affirm the said findings 13. So far as the finding of the Tribunal with respect to pay and recover, the learned Tribunal was also justified in recording such finding as at the time of accident, the offending vehicle was insured with the appellant/insurer. In the matter of National Insurance Co. Ltd. V. Swaran Singh, reported in (2004) 3 SCC 297 the Supreme Court has held as under:- “110. The summary of our findings to the various issues as raised in 6 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 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 7 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 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 insure 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.” 14. Reiterating the judgment of Swaran Singh case (supra), in (2018) SCC 650 8 (Shamanna v. Divisional Manager, Oriental Insurance Company Limited), it is held by the Supreme Court as follows: “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 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”. 7. The Supreme Court considered the decision of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700, wherein this Court held that: (SCC p. 705, para 5) “5. The decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 has no application to cases other than third-party risks and in case of third-party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.” 15. Thus, considering the facts and circumstances of the case, the principle of the law laid down by the Hon’ble Supreme Court in the above referred matters and further considering the fact that at the time of accident, offending vehicle was insured with appellant/Insurance Company, I do not see any perversity in the said finding of the Tribunal. 16. Consequently, the appeal filed by the insurance company and that cross- appeal filed by respondent No.1/claimant/injured, being without any substance, are liable to be and are hereby dismissed Sd/- (Radhakishan Agrawal) JUDGE Anjani