1 2025:CGHC:16176 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1238 of 2017 S.B.I. General Insurance Company Limited Through Branch Manager, S.B.I. General Ins. Co. Ltd., 4th Floor, Pujari Chamber, Pachpedi Naka, Dhamtari Road, N H-43, Police Station Tikrapara, District Raipur, Chhattisgarh ... Appellant versus 1 - Manoj Dhiwar S/o Sakharam Dhiwar, Aged About 37 Years R/o Melapara, Ratanpur, District Bilaspur, Chhattisgarh…….(Claimant) 2 - Radheshyam Mishra S/o Hira Lal Mishra, Aged About 48 Years Near Ram Darbar, House Of Dinesh, Kota, District Raipur, Chhattisgarh 3 - Mohammed Manjar S/o Shri Mohd. Ayyub, Aged About 45 Years R/o Hirapur, Tatibandh, Aamanaka, District Raipur, Chhattisgarh ….Respondents For Appellant : Mr. Tanmay Rai, Advocate on behalf of Mr. NK Thakur, Advocate For Respondent No. 1 : Mr. Samir Rigri, Advocate on behalf of Mr. Alok Kumar Gupta, Advocate For Respondents No.2 & 3 : None (Hon'ble Shri Justice Sanjay Kumar Jaiswal ) Order on Board 07/04/2025 1. This appeal has been preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 15.05.2017 passed by Motor Accident Claims Tribunal, Bilaspur (C.G.) in MACT No.19/2015, whereby the Tribunal has awarded compensation of Rs.1,75,000/- with interest @ 9% per annum, from the date of application till its realization, in favour of Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.04.09 18:14:12 +0530 2 Respondent No.1/claimant for his irreparable loss. 2. The facts necessary for disposal of this appeal, in brief, are that on 16.01.2014, when Respondent No.1/claimant Manoj Dhiwar was going to village Jaali by Maruti Van at the same time, driver/respondent No. 2 of offending vehicle bearing registration No. CG-04-JA-6567 drove the vehicle in rash and negligent manner and dashed the van of the claimant, due to which the claimant sustained fracture in both legs and grievous injuries on other parts of his body. Therefore, the claimant has claimed compensation on various heads. The Claims Tribunal after considering the evidence brought on record awarded total compensation of Rs.1,75,000/- with interest @ 9% per annum, from the date of application till its realization in favour of the claimant, in which, the Insurance Company, driver and owner jointly and severally have been held liable for payment of compensation. 3. Learned counsel for the Insurance Company submits that at the time of accident, the driver/Respondent No.1 Radheshyam was not possessed the valid and effective driving license and also the offending vehicle was driven without permit and fitness certificate. In this regard, the insurance company has examined Naman Sharma (NAW-1) and Y.N. Sharma (NAW-2) who were also stated that at the time of accident, the driver of the offending vehicle did not possess the valid and effective driving license. Since, the driver was not having valid and effective driving license at the time of accident, therefore, there was a breach of insurance policy condition. Hence, it is prayed that in absence of the driving license, the insurance company may be exonerated from the liability. 4. On the other hand, it has been argued on behalf of learned counsel for respondent No.1 that the impugned award is just and proper and requires no interference. However, he prays for an order of pay and recover. 5. Despite service of notice through paper publication, none appears on behalf of Respondents No.2 & 3 before this Court. Before the 3 Claims Tribunal also Respondents No.2 & 3 declared ex-parte and no written statement was submitted on their behalf. 6. Heard learned counsel for the parties and perused the record. 7. The contention of the Insurance Company is that Respondent No.2 being the driver of the offending vehicle did not posses the valid and effective driving license at the time of accident, in this regard the Tribunal has discussed in paragraphs 9 to 11 that the issue in relation to violation of terms of policy like driving license and other identical matters, the insurance company has not examined any witness from transport department to show that non-applicant No.1/Respondent No.2 herein was not having valid driving license to drive the vehicle, so it cannot be said that non-applicant No.1/Respondent No.2 was not having driving license to drive the vehicle. The Tribunal has held that at the time of accident, the offending vehicle was insured. It is also held by the Tribunal that in absence of evidence regarding other document, it cannot be said that the offending vehicle was driven in violation of insurance contract. 8. From perusal of the record, it is clear that the offending vehicle was insured with the appellant insurance company. The driver of the offending vehicle at the time of accident is stated to be Radheshyam Mishra. As per the evidence brought on record, no written statements of the driver Radheshyam and owner Mohammed Manjar have been presented. No driving license of driver Radheshyam has been presented nor is any number of the licence mentioned. The driving license is not said to have been seized by the police. Thus, no details of the driving licence of Radheshyam has been given, on the basis of which, the insurance company could be able to get it investigated. 9. In the judgment of Pappu and others v. Vinod Kumar Lamba and another reported in 2018 (1) T.A.C. 360 (S.C.), Hon'ble Supreme Court has determined the responsibility in paragraph 11 as follows:- 11. …..In the present case, the respondent No.1 owner of the 4 offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle. 10. In the light of the above judgment it is clear that despite the offending vehicle being insured, it is the primary responsibility of the registered owner to establish his position that the offending vehicle was being driven by a valid and effective driving license holder. In this case, the driver and owner declared ex-parte before the Tribunal, they neither produced any driving license nor submitted written statements so that the insurance company could get it verified. The burden of proof falls on the insurance company only after the registered owner has discharged his responsibility. Since, prima facie, the registered owner himself declared ex-parte, in such a situation, the conclusion of the Tribunal that there was no breach of policy condition in the case is not justified. Furthermore, 5 The insurance company has also taken the ground of breach in respect of driving license in its written statement and has also got two witnesses examined Naman Sharma (NAW-1) and investigating police officer Y.N. Sharma (NAW-2) who were also stated that at the time of accident, the driver of the offending vehicle did not possess the valid and effective driving license. The charge-sheet was also filed under Section 3/181 of M.V. Act. Hence, in view of above discussion, the said conclusion of the Tribunal is not found to be upheld, as in the case, breach of policy is found in the absence of driving license. Finding the breach of policy, the appeal of the insurance company is accepted. 11. However, considering the principles laid down by the Hon’ble Supreme Court in the case of Amrit Paul Singh & another. Vs. Tata AIG General Insurance Company Limited & others reported in (2018) 7 SCC 558, ordering the insurance company to pay first and then recover and also taking note of the facts and circumstances of the present case, particularly the fact that at the time of accident the vehicle was duly insured with the Insurance Company, it is directed that the Insurance Company shall first pay the amount of compensation awarded to the claimant and then recover the same jointly or severally from the driver and owner of the offending vehicle. 12. Accordingly, the appeal preferred by the Insurance Company is partly allowed. The impugned award stands modified to the above extent and rest of the conditions shall remain intact. 13. Records of the Tribunal along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham