1 / 6 2025:CGHC:39128 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 805 of 2021 1. ICICI Lombard General Motor Insurance Company Limited Through its Legal Manager, Permanent Office - Ground Floor, Vanijya Bhawan, Devendra Nagar Road, Raipur (C.G.) ...........(Insurer), ... Appellant versus 1. Samariya Bai W/o Late Harilal Yadav Aged About 39 Years 2. Devkali Yadav D/o Late Harilal Yadav Aged About 20 Years 3. Sunil Kumar S/o Late Harilal Yadav Aged About 17 Years 4. Ishwari Yadav S/o Late Harilal Yadav Aged About 11 Years Respondents No.3 and 4 being minor represented through Mother Samariya Bai W/o Late Harilal Yadav, Aged 39 Years, All are R/o Village Lodi Bahra, Panchayat Mateen, Tehsil- Podiuproda, District-Korba (C.G.) ...........(Claimants), 5. Mohan Singh Kawar S/o Aamun Singh Kawar Aged About 62 Years R/o Village Podi Gosai, Post - Tumah, Tehsil - Podiuproda, Distt Korba (C.G.)...........(Owner) 12.AQ.0669), ... Respondent(s) For Appellant : Mr. Saurabh Sharma and Ms. Harneet Kaur, Advocates For Respondent No.1 to 4 : None though served. For Respondent No.5 : Mr. Vikas Pandey, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order on Board 6/8/2025 1. Appellant Insurance Company has filed this appeal challenging the award dated 9.3.2021 passed by learned 1st SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 / 6 Additional Motor Accident Claims Tribunal, Katghora, District Korba (for short ‘the Claims Tribunal’) in Claim Case No.72/2018. 2. Facts of the case, in brief, are that claimants filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.39,50,000/- under various heads, against death of Harilal Yadav in a motor vehicular accident. According to claimants, who are widow and children of deceased, on 10.1.2018 when said Harilal Yadav on his motorcycle bearing registration No.CG12-AN-0882 was going to his home situated in village Lodibahara from Katghora, one motorcycle bearing registration mark CG12-AQ-0669, driven in a rash and negligent manner by its driver, dashed motorcycle of Harilal as a result he fell down, sustained grievous injuries and died. It was further pleaded by claimants that on the date of accident, deceased was 40 years old, he was working as labourer and earning Rs.10,000/- per month. Claimants were dependent on the income of deceased and due to his sudden demise, they suffered loss of income. 3. Non-applicant No.1, owner of offending motorcycle, filed reply to claim application pleading that his son, driver of motorcycle, was driving motorcycle cautiously, it was the deceased who drove his motorcycle negligently and dashed against motorcycle of his son as a result his son died. At the 3 / 6 time of accident, deceased was not having valid and effective driving license, offending vehicle was insured with non- applicant No.2 and therefore, if any compensation is awarded to claimants then insurance company will be liable to pay the same. 4. Non-applicant No.2-Insurance Company also filed a separate reply and denied averments made in claim application. It was pleaded that driver of offending vehicle was not holding a valid and effective driving licence at the time of the accident and, therefore, insurance company is not liable to pay the compensation. 5. The Claims Tribunal upon analyzing pleadings and evidence brought on record by respective parties, came to conclusion that accident occurred due to rash and negligent driving of offending vehicle by its driver, which resulted in death of deceased; there was no element of contributory negligence. Consequently, the Claims Tribunal allowed application in part, awarded compensation of Rs.12,86,875/-. Since it was found that driver of offending motorcycle was not possessing driving license at the time of accident, the insurance company was exonerated on the ground of breach of condition of insurance policy, liability was fastened upon non-applicant No.1 to pay entire amount of compensation, however, insurance company was directed to first pay entire amount of compensation to claimants and then to recover the same from the owner of 4 / 6 offending vehicle. 6. Learned counsel for appellant Insurance Company submits that the Claims Tribunal erred in not considering that deceased was contributory negligent in accident, which is specifically pleaded by appellant insurance company in its reply to claim application. He next contended that the Claims Tribunal even after recording that offending vehicle was being driven by its driver without having valid and effective driving license in his name, directed the insurance company to first pay the amount of compensation and thereafter to recover the same, which is erroneous. 7. Learned counsel for respondent No.5 would submit that the Claims Tribunal after holding that driver of his motorcycle, who also died in said accident, was not possessed with driving license held that offending vehicle was being driven in breach of policy conditions and exonerated insurance company from its liability. However, a direction was issued to insurance company to satisfy the impugned award and thereafter to recover the same from the owner of offending vehicle. 8. I have heard learned counsel for the respective parties and perused record of claim case. 9. So far as submission of learned counsel for appellant Insurance Company that Claims Tribunal erred in not holding 5 / 6 deceased to be contributory negligent in accident, is concerned, though appellant Insurance Company has pleaded said fact in reply to claim application, but not examined any witness to prove it. Appellant Insurance Company examined one Sanjay Vastrakar (NAW2-1), an employee of District Transport Office, Korba. This witness has stated that deceased Ram Singh, driver of offending vehicle, was not issued driving license in his name. It is not available in record. Appellant has also examined one Rahul Choudhary (NAW2-2), Legal Assistant of ICICI Lombard General Insurance Co., Raipur, however, this witness cannot be considered as witness of accident to prove contributory negligence on the part of drivers of vehicles involved in the accident. No other witness is examined by appellant before the Claims Tribunal. In absence of any evidence brought on record by non-applicants, in particular Insurance Company, submission of learned counsel for appellant that Claims Tribunal erred in not holding deceased driver to be rash and negligent while driving his motorcycle, is not sustainable and it is repelled. 10. So far as submission of learned counsel for appellant that Claims Tribunal erred in issuing direction to pay entire compensation first and then to recover the same from owner of offending vehicle, is also not having force. Hon’ble Supreme Court in case of Swaran Singh and Shamanna and 6 / 6 another Vs. Divisional Manager Vs. the Oriental Insurance Co. Ltd. and others, [(2018) 9 SCC 650, has considered the issue with regard to issuance of direction to insurance company where offending vehicle was insured but driven by a person not having driving license on the date of accident and observed that direction to pay and recover can be issued to insurance company in such cases. 11. For the foregoing reasons and discussions, I do not find any good ground to interfere with the impugned award passed by the Claims Tribunal. Appeal being sans merit is liable to be and is hereby dismissed. Sd/- (Parth Prateem Sahu) Judge roshan/