1 2025:CGHC:24499 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1721 of 2018 United India Insurance Company Limited Through Its Branch Manager, Branch- Office, Station Road, Near Gurudwara, Paras Complex, Durg, P.S. Mohan Nagar, Tah. And District- Durg, Chhattisgarh.....(Non- Applicant No.3). --- Appellant Versus 1 - Ishwar Lal Yadav S/o Late Mansharam Yadav Aged About 56 Years R/o Village Aamalori, P.O. Marra, P.S. Utai, Tahsil Patan District- Durg, Chhattisgarh.........(Applicant) 2 - Dushyant Kumar Sahu S/o Omprakash Sahu Aged About 20 Years R/o House No. 980, Gandhi Chowk, Utai, P.S.- Utai, District- Durg, Chhattisgarh...........(Non-Applicant No.1) 3 - Omprakash Sahu S/o Sadaram Aged About 50 Years R/o House No. 980, Gandhi Chowk, Utai, P.S.- Utai, District- Durg, Chhattisgarh...........(Non-Applicant No.2) --- Respondents MAC No. 1752 of 2018 Ishwar Lal Yadav S/o Late Mansharam Yadav Aged About 56 Years R/o Village Amalori, Post - Marra, Police Station - Utai, Tahsil Patan, District Durg, Chhattisgarh. --- Appellant Versus 1 - Dushyant Sahu S/o Omprakash Sahu Aged About 20 Years R/o House No. 980, Gandhi Chowk, Utai, Police Station Utai, Tahsil Patan, District Durg, Chhattisgarh. YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.06.30 19:03:54 +0530 2 2 - Omprakash Sahu S/o Sadaram Aged About 50 Years R/o House No. 980, Gandhi Chowk, Utai, Police Station Utai, Tahsil Patan, District Durg, Chhattisgarh. 3 - United India Insurance Company Ltd. Through The Branch Manager, Station Road, Near Gurudwara, Paras Complex, Durg, Police Station - Mohan Nagar, Tahsil And District Durg, Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Insurance Company : Mr. Dashrath Gupta, Advocate For Claimant : Mr. Purendra Khichariya, Advocate For Owner and Driver : Mr. Anil S. Pandey, Advocate Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 16.06.2025 1. Heard Mr. Dashrath Gupta, learned counsel for the Insurance Company, Mr. Purendra Khichariya, learned counsel appearing for the Claimant as well as Mr. Anil S. Pandey, learned counsel appearing for the Owner and Driver. 2. As the above two appeals arise out of same accident and common question is involved in it, therefore, they are being disposed of by this common judgment. 3. Challenge in above two appeals is to the award dated 02.08.2018 passed by First Additional Judge to the Court of First Additional Motor Accident Claims Tribunal, Durg (C.G.) (hereinafter referred to as 'Claims Tribunal') in Claim Case No.207/2017 whereby learned Claims Tribunal allowed claim application in part of claimant and awarded Rs.73,000/- as compensation to the 3 claimant in an injury case and fastened the liability to satisfy the amount of compensation the Insurance Company. 4. Brief facts relevant for disposal of these appeals are that on 20.11.2015, the claimant along with his brother Radheshyam was going to village Amalori in his motorcycle bearing registration No.CG-07/LK/4226, at that relevant time, another motorcycle bearing registration No.CG-07/AF/3879 (hereinafter referred to as “offending vehicle”) driven by non-applicant No.1 dashed the motorcycle of the claimant. In the aforementioned accident, claimant suffered grievous injuries over his person and he was taken to Mahima Hospital and later Chandulal Chandrakar Hospital, Bhilai where he took treatment as inpatient from 21.11.2015 to 26.11.2015. Thereafter, the matter was reported to concerned police station, based on which, crime bearing No.328/2015 was registered for offence punishable under Sections 279, 337 and 338 of IPC against non-applicant No.1. 5. After recovering from injuries, claimant filed a claim application before the Claims Tribunal claiming Rs.11,00,000/- as compensation against injuries suffered by him in motor accident. 6. Non-applicants No. 1 and 2 were proceeded ex-parte before the learned Claims Tribunal. 7. Non-applicant No.3/Insurance Company submitted its reply to claim application and denied the fact of issuance of insurance policy in favour of offending vehicle. It was pleaded that the 4 claimant has not suffered any permanent disability and the accident occurred due to own negligence of the claimant. It was further pleaded that there was non-joinder of necessary party as the claimant has not made party to the Insurance Company of his motorcycle bearing registration No.CG-07/LK/4226. It was also pleaded that the driver of the offending vehicle has not possessed valid and effective driving licence and he has only possessed Learner’s Licence on the date of accident, therefore, there was violation of conditions of insurance policy and as such, Insurance Company was not liable to pay any amount of compensation. 8. On appreciation of pleadings and evidence placed on record by respective parties, learned Claims Tribunal awarded a total sum of Rs.73,000/- along with interest @ 9% per annum from the date of filing of claim application till its realization. 9. MAC No.1721/2018 has been filed by Insurance Company challenging the impugned award on the ground that there was Learner’s licence and as such, there was violations of the conditions of the insurance policy, hence, the Insurance Company be exonerated to satisfy the amount of compensation, whereas MAC No.1752/2018 has been filed by the claimant for enhancement of the amount of compensation. 10. Learned counsel for the Insurance Company submitted that learned Claims Tribunal committed error in recording a finding that there was no breach of policy conditions as the driver of 5 offending vehicle was possessed with Learner's Licence. As per Rule 3(b) of the Central Motor Vehicles Rules, 1989, person driving the vehicle under Learner's Licence should be accompanied by instructor holding valid and effective driving licence, but in the case, there is no averment of the driver or owner in this regard. The vehicle driven by the person with Learner's Licence should be affixed with letter 'L' on front side as well as on the rear side, which was not there. As such, the Insurance Company be exonerated to satisfy its liability and the driver and owner be directed to pay the amount of compensation. 11. Learned counsel for the claimant submits that the learned Claims Tribunal committed an error in awarding the meagre amount of compensation in the given facts and circumstances of the case. He further submits that the claimant had suffered severe injuries in the accident, for which, he has hospitalized for 6 days, as such, he prays for enhancement of the amount of compensation suitably. 12. Learned counsel for the owner and driver of the offending vehicle has supported the impugned award passed by the learned Claims Tribunal and submits that the learned Claims Tribunal has rightly fastened the liability to pay the amount of compensation upon the Insurance Company. He further submits that the driver of the offending vehicle was having valid and effective driving licence to 6 drive the vehicle and as such, learned Claims Tribunal has not committed any error in passing the impugned award. 13. I have heard learned counsel appearing for parties and perused the record carefully. 14. For the sake of convenience, appeal of Insurance Company bearing MAC No. 1721/2018 is taken into consideration first. 15. Learned counsel for the Insurance Company has referred to Section 3 of the M.V. Act and Rule 3 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as 'Rules of 1989'). Section 3 of the M.V. Act is extracted below for ready reference :- “3. Necessity for driving licence.-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than [a motor cab or motorcycle hired for his own use or rented under any scheme made under sub- section (2) of Section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub- section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.” 16. Rule 3 of the Rules of 1989 reads as follows : “3. General.-The provisions of sub-section (1) of section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as— 7 (a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle; (b) such person is accompanied by an instructor holding an effective driving License to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and (c) there is painted, in the front and the rear or the vehicle or on a plate or card affixed to the front and the rear, the letter "L" in red on a white background as under : L Note.—The painting on the vehicle or on the plate or card shall not be less than 18 centimeters square and the letter "L" shall not be less than 10 centimeters high, 2 centimeters thick and 9 centimeters wide at the bottom. Provided that a person, while receiving instructions or gaining experience in driving a motorcycle (with or without a side-car attached), shall not carry any other person on the motorcycle except for the purpose and in the manner referred to in clause (b).” 17. Section 3 of the M.V. Act mentions that no person shall drive motor vehicle in any public place unless he holds an effective driving licence. Section 8 of the M.V. Act envisaged grant of Learner's Licence, which is to be granted subject to provisions of Section 7. Section 7 of the M.V. Act prescribes for licence shall not be granted to a person below the age of 18 years and Learner's Licence not to be granted to drive 'Transport Vehicle' unless applicant is holding licence to drive 'Light Motor Vehicle' for at least one year. Learner's Licence is to be granted subject to Rule 3 of the Rules of 1989. Under Rule 3, it is specifically 8 provided that he can drive a vehicle, but such person to be accompanied by an Instructor holding an effective driving licence and further such Instructor is sitting in such a position to control or stop the vehicle and further 'L' sign/mark painted in front and rear side of the vehicle. 18. From the evidence of driver of offending vehicle, it is apparent that the driver of offending vehicle who was holding Learner's Licence was not accompanied with Instructor. In absence of Instructor accompanying him, he was not authorised to drive offending vehicle. 19. The Hon'ble Supreme Court in case of National Insurance Company Limited v. Swaran Singh, (2004) 3 SCC 297 in paragraph-93 of the judgment has dealt with Learner's Licence. It is considered by Hon'ble Supreme Court that whether holder of Learner's Licence to be a duly licence or not and held that it cannot be said that holder of Learner's Licence is not entitled to drive the Bus. In the preceding line of same paragraph, it has been held that vehicle being driven by a Learner subject to conditions mentioned in the licence. Learner's Licence is issued under Section 8 of the M.V. Act. Learner's Licence is issued in Form-3 under Rule 3(a) and 13. Form-3 clearly mentions that person named in licence is authorised to drive throughout India as a Learner subject to provisions of Rule 3 of the Rules of 1989. In Form-3, there is a warning appended in bottom of the Form, which reads as under : 9 “Warning. –The attention of the holder of this licence is drawn to Rule 3 of the Central Motor Vehicles Rules, 1989, which prohibits him from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and in every case, the vehicle carries “L” plates both in the front and in the rear of the vehicle.” 20. Upon considering the contents of Form-3 in which Learner's Licence is issued and further considering the provisions of Rule 3 of the Rules of 1989, we are of the considered view that though driver of offending vehicle was possessed with valid Learner's Licence, but at the time of accident, he was not authorised to drive offending vehicle as he was not accompanied with Instructor having valid and effective driving licence and that too sitting in such a position to control offending vehicle. The finding recorded by learned Claims Tribunal with regard to breach of policy conditions is based on the evidence and is in consonance with the provisions of law and the law laid down by Hon'ble Supreme Court in case of Swaran Singh (supra). 21. In view of above, as there was breach of policy conditions, Insurance Company cannot be held liable to satisfy the amount of compensation. The liability to satisfy the amount of compensation shall be upon the driver and owner of the offending vehicle. 22. At this stage, learned counsel for the claimant again pointed out that even if, there is no liability upon the Insurance Company to satisfy the amount of compensation, then direction of pay and 10 recover be issued. This submission was opposed by learned counsel for the Insurance Company. 23. The doctrine of pay and recover in cases of no valid licence has been considered by Hon'ble Supreme Court in case of Shamanna and Another v. Divisional Manager, Oriental Insurance Company Limited and Others, (2018) 9 SCC 650, in which, Hon'ble Supreme Court has held thus : “2. .........Since the driver of the jeep had no valid driving licence at the time of the accident and since there was violation of the terms of the insurance policy, the Tribunal directed the insurance company to pay the compensation to the claimants and granted liberty to the insurance company to recover the same from the owner of the offending vehicle. 13. Since the reference to the larger bench in National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 followed in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh (supra) and Laxmi Narain Dhut (supra) cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the 11 owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.” 24. Further, in case of Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others, (2018) 7 SCC 558, Hon'ble Supreme Court while dealing with the issue of breach of policy condition on account of no permit has held thus : “24..........We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 and Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and 12 other cases pertaining to pay and recover principle.” 25. The Hon'ble Supreme Court in case of Amrit Paul Singh (supra) has very specifically held that in case of breach of policy conditions, direction for pay and recover can be issued and the same will be in consonance with the judgment passed by Hon'ble Supreme Court in case of Swaran Singh (supra). 26. In view of the above, as there was breach of policy conditions, as such, this Court has directed the Insurance Company to pay first satisfy the amount of compensation and then to recover the same from the driver and owner of the offending vehicle. It is made clear that for recovery of amount of compensation so deposited by the Insurance Company, there will be no requirement of filing separate proceeding, but the Insurance Company will be at liberty to file an application for execution in the very same proceeding for recovery of amount from the driver and owner of the offending vehicle in accordance with law. 27. Now, this Court shall deal with the appeal filed by the claimant being MAC No.1752/2018. 28. Learned counsel appearing for the claimant vehemently argued that the award passed by the learned Claims Tribunal is very meager as the learned Claims Tribunal failed to consider nature of injury and not awarding any amount towards conveyance and also not awarded any amount towards pain and suffering. 13 29. The claimant has submitted documents i.e. First Information Report and other documents of criminal case as also the documents relating to his medical treatment, which have been marked as Exhibits P/1 to P/89 along with his claim application, which shows that accident took place on 20.11.2015. The final report submitted vide Exhibit P/1, in which, the charge-sheet has also been filed before the competent Court. He also submitted medical documents showing treatment as indoor patient from 21.11.2015 to 26.11.2015 and on medical diagnosis, it was found that there was a blood clot in his head, due to which, he got operated. 30. The claimant has also filed the medical documents i.e. bills of medicine and expenditure at hospital, which costed at Rs.52,902/-, which amount has already been awarded by the learned Claims Tribunal. 31. The learned Claims Tribunal has not considered the nature of injuries sustained by the appellant on most valuable part of body, especially, the blood clot in his head, for which he had operated and has straightway rejected the claim towards conveyance and pain and suffering made by the claimant. 32. Looking to the injury suffered by the claimant , in the considered opinion of this Court, the claimant is entitled for Rs.1,00,000/- towards compensation. It is stated that Rs.73,000/- has already been awarded by the learned Claims Tribunal. Now, the claimant 14 is entitled for additional compensation of Rs.27,000/- apart from Rs.73,000/-, which has already been awarded by the learned Claims Tribunal. 33. In the result, appeal (MAC No.1721/2018) filed by Insurance Company is allowed and appeal (MAC No.1752/2018) filed by claimant is allowed in part and impugned award passed by learned Claims Tribunal is modified to the extent indicated herein- above. Sd/- (Amitendra Kishore Prasad) Judge Yogesh