-1- 2025:CGHC:54946 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 538 of 2019 1 - Omprakash Karsh S/o Budhram Karsh Aged About 22 Years R/o Village Pendri, P.S. Navagarh, District- Janjgir-Champa, Chhattisgarh, District : Janjgir-Champa, Chhattisgarh 2- Naresh Kumar Bajrang, S/o Shiv Kumar Bajrang, aged about 48 years, R/o House No.265/K, Pamgarh, R/o Mohline Bhatha, P.S. Pamgarh, District Janjgir-Champa (C.G.) ... Appellants versus 1 - Suraj Kumar Ogre S/o Bharatlal Ogre Aged About 23 Years R/o Ward No. 4, Gudi Mohalla, P.S. Pamgarh, District- Janjgir-Champa, Chhattisgarh, District : Janjgir-Champa, Chhattisgarh 2 - Divisional Manager, The New India Insurance Company Limited, Office Rama Trade Center, 2nd Floor, U.T.I. Building, In Front Of Rajiv Plaza, District- Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh ... Respondents For Appellants/Claimants : Mr. Amiyakant Tiwari, Advocate For respondent No.1 : Mr. Suresh Kumar Pandey, Advocate along with Mr. Priyank Pandey, Adv. For respondent No.2 : Mr. Anil Gulati, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 11.11.2025 1) The appellants/owner & driver of the offending vehicle have filed this appeal challenging the liability as well as quantum part of the award passed by the learned Third Additional Motor Accidents Claims Tribunal, Janjgir-Champa (C.G.) in Claim Case No.29/2017 dated 14.01.2019 whereby, the learned Tribunal has granted compensation to the tune of Rs.10,60,683/- on account of injuries sustained by Suraj Kumar Ogre. 2) The facts in brief are that on 27.05.2016 at Village Mehandi, the claimant was REKHA SINGH -2- applying lubricant in JCB excavator, at the same time, the driver of the vehicle, pushed its liver, consequently, the bucket of JCB fell on the claimant and he sustained grievous injury over his spine. The claimant filed a claim application under Section 166 of the Motor Vehicle Act and claimed compensation to the tune of Rs.12,32,000/-from the driver, owner and insurance company. The driver, owner as well as insurance company filed reply to claim petition, where a plea was taken that FIR was lodged at belated stage. It was also pleaded that the claimant was in drunken condition and he fell down on stone and sustained injuries. The insurance company stated that on the date of accident, the driver of the offending vehicle did not have valid driving licence. Learned Tribunal framed issues, parties led evidence and thereafter, an award was passed. 3) Learned counsel appearing for the appellants would submit that the driver of the offending vehicle did have valid driving licence and it was submitted before the learned Tribunal and thus, primary burden was discharged by the owner of the vehicle/appellants herein and in turn, the insurance company failed to discharge its burden as no evidence was led to establish the fact that on the date of accident, the driver of the offending vehicle did not have valid and effective driving licence. He would further submit that the learned Tribunal has awarded compensation at higher side. Mr. Tiwari would submit that the appellant has moved an application under Order 41 Rule 27 of CPC wherein, it is pleaded that the claimant/injured is not suffering with paraplegia and at present, he is working as teacher in Chhattisgarh Gyan Jyoti Higher Secondary School, Pamgarh, District Janjgir-Champa. He would submit that an application was moved before the Principal of that school under right to information act and it has been responded that the claimant is working to the post of teacher in that school for academic year 2023-24 and no disability certificate was produced to secure employment. Mr. Tiwari has placed photographs of students and teachers of that school, wherein, the claimant is present along with other -3- teachers. He would contend that at present, the claimant is not suffering from any disability and therefore, the claimant may be directed to appear before the Medical Board for re-examination. He would pray to allow application moved under Order 41 Rule 27 of CPC as well as application for re-examination of the claimant by duly constituted Medical Board. He has placed reliance on the judgment passed in the matter of FFCO Tokio General Insurance Co. Ltd. Versus Geeta Devi and Ors., AIR 2023 SC 5545, wherein, it is held that where the driver’s licence was found to be fake; the insurance company has to plead and establish the breach on the part of the owner of the vehicle. It is also held that the genuineness of the driving licence can be verified by the insurance company by examining a witness of Regional Transport Authority. Paras 12 & 15 are reproduced herein below : “12.Further, in the context of cases where the driver's licence was found to be fake, the Bench observed that the question would be whether the insurer could prove that the owner was guilty of willful breach of the conditions of the insurance policy. It was pointed out that the defence to the effect that the licence held by the person driving the vehicle was a fake one would be available to the insurance company but whether, despite the same, the plea of default on the part of the owner has been established or not would be a question which would have to be determined in each case. The earlier decision in United India Insurance Co. Ltd. vs. Lehru and others4 was considered and the Bench observed that the ratio therein must not be read to mean that an owner of a vehicle can, under no circumstances, have any duty to make an inquiry with regard to the genuineness of the driving licence and the same would again be a question which would arise for consideration in each individual case. The argument that the decision in Lehru (supra) meant that, for all intent and purport, the right of the insurer to raise a defence that the licence was fake was taken away was, however, rejected as not being correct and it was held that such a defence can certainly be raised, but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The findings summed up by the Bench, to the extent presently relevant, are as under: (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 -4- 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 to be determined in each case.' 15. As already pointed out supra, once a seemingly valid driving licence is produced by a person employed to drive a vehicle, unless such licence is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the licence has already expired, or there is some other reason to entertain a genuine doubt as to its validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving licence before employing that person to drive the vehicle. Presently, no evidence has been placed on record whereby an inference could be drawn that the deceased vehicle owner ought to have gotten verified Ujay Pal's driving licence. Therefore, it was for the petitioner-insurance company to prove willful breach on the part of the said vehicle owner. As no such exercise was undertaken, the petitioner-insurance company would have no right to recover the compensation amount from the present owners of the vehicle. The impugned order passed by the Delhi High Court holding to that effect, therefore, does not brook interference either on facts or in law.” 4) On the other hand, the learned counsel appearing for the Insurance Company would oppose the submissions made by Mr.Tiwari. Mr. Gulati would submit that it is a case of no driving licence. He would further submit that the driver of the offending vehicle had submitted driving licence issued by the competent authority dated -5- 14.09.2016 whereas, the date of accident was 27.05.2016. Thus, on the date of accident, there was no driving licence. He would contend that a plea was taken by the insurance company in this regard in reply and burden was on driver and owner of the offending vehicle to establish the fact that on the date of accident, driver had valid and effective driving licence. He would contend that the learned Tribunal has considered this issue at length and found breach of insurance policy and fastened liability with the driver and owner of the vehicle. He would contend that the appeal deserves to be dismissed. 5) Mr. Pandey, learned counsel appearing for the claimant would submit that the claimant is still suffering from paraplegia and the appellants could not submit documents to rebut the disability certificate issued by the Medical Board. With regard to photographs, Mr. Pandey would submit that date and place of these photographs are not pleaded in the application and these photographs may be morphed and therefore, these documents should not be taken into consideration while passing order on application under Order 41 Rule 27 of CPC and re- examination of the claimant. He would further submit that the applications deserve to be rejected. 6) I have heard the learned counsel appearing for the parties and perused the record. 7) Learned Tribunal considered 100% disability looking to the nature of injury sustained by the claimant. According to disability certificate, the claimant had suffered compressed injury over spinal cord and said injury resulted in paraplegia. According to the disability certificate issued by the Medical Board, there was no sensation in the lower limb of claimant and that was the reason, learned Tribunal assessed the disability of claimant 100%. The information collected by the appellant under Right to Information Act would not lead to conclusion that at present, the claimant is not suffering from paraplegia and he is able to walk and work. Further, -6- on the basis of non-submission of disability certificate in any educational institution, it cannot be presumed that the physical condition of the claimant has become good. 8) With regard to photographs, it cannot be held that these photographs were clicked after date of accident, therefore, application moved under Order 41 Rule 27 of CPC is hereby rejected. 9) With regard to application moved by the appellants for re-examination of the claimant by duly constituted Medical Board, in absence of any concrete material, I am not inclined to allow this application, accordingly, this application is also rejected. 10) Learned Tribunal has categorically concluded that there was negligence on the part of the driver of offending vehicle and in said accident, the claimant suffered permanent disability. 11) Learned Tribunal further held that on the date of accident, driver of the offending vehicle did not have any licence and therefore, exonerated the insurance company. In reply, the insurance company took specific plea that the driver of the offending vehicle did not have valid driving licence to drive JCB. The owner and driver could not adduce clinching evidence to establish the fact that on the said date, the driver had valid driving licence. The appellants have placed driving licence Ex.NA1-C which was issued by the Regional Transport Authority on 14.09.2016 after date of accident thus, it can be held that on the date of accident, the driver of the offending vehicle did not have any valid and effecting driving licence. 12) The finding recorded by the learned Tribunal while exonerating the insurance company appears to be proper. 13) With regard to the judgment cited by Mr. Tiwari, the insurance company had -7- discharged its burden as there was specific pleading to the effect that the driver did not have valid driving licence on the date of accident. The owner and driver could not rebut the said pleading by adducing evidence to the effect that on the date of accident, driver did have valid driving licence to drive JCB. The driving licence was issued in favour of the driver of the offending vehicle after date of accident. Therefore, the decision cited by Mr. Tiwari is of no help. 14) With regard to quantum, learned Tribunal has awarded Rs.1,48,683/-; against medical expenses; Rs.6,12,000/- for loss of earning; Rs.1,50,000/- for pain and suffering and Rs.1,50,000/- on other conventional heads and the amount arrived at by the learned Tribunal appears to be just and proper. Accordingly, this appeal fails and is hereby dismissed. Sd/- (Rakesh Mohan Pandey) Judge Rekha