1 2025:CGHC:54930 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1838 of 2018 1 - Cholamandlam Ms General Insurance Company Ltd. Through Branch Manager Address- Branch Office Simran Tower, Second Floor, In Front Of L I C Office Pandri Police Station Pandari Mowa District- Raipur Chhattisgarh, Present Address- Colamandlam Ms General Insurance Company , 2nd Floor Simran Tower Opposite Of L I C Building Pandri Raipur District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Petitioner(s) versus 1 - Smt. Neetu Mirchandani W/o Late Sunil Mirchandani Aged About 42 Years R/o Ward No. 46 Janta Quarter No.8 Mahaveer Nagar Amaldih, New Rajendra Nagar Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Deepali Mirchandani D/o Shri Manoj Mirchandani Aged About 23 Years R/o Ward No. 46 Janta Quarter No.8 Mahaveer Nagar Amaldih, New Rajendra Nagar Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Subham Mirchandani S/o Shri Manoj Mirchandani Aged About 22 Years R/o Ward No. 46 Janta Quarter No.8 Mahaveer Nagar Amaldih, New Rajendra Nagar Raipur Chhattisgarh., District : Raipur, Chhattisgarh 4 - Peshumal Mirchandani S/o Late Harumal Mirchandani Aged About ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA 2 46 Years R/o Ward No. 46 Janta Quarter No.8 Mahaveer Nagar Amaldih, New Rajendra Nagar Raipur Chhattisgarh., District : Raipur, Chhattisgarh 5 - Rakesh Dash S/o Rajesh Dash R/o Near New Purena, Near Church, New Rajendra Nagar Raipur Chhattisgarh.......................Driver, District : Raipur, Chhattisgarh 6 - Ritesh Dass S/o Rajesh Dass R/o Near New Purena, Near Church New Rajendra Nagar Raipur Chhattisgarh...................Owner, District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner(s) : Ms. Shristi Upadhyay, Advocate Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 11/11/2025 1. This appeal has been preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988, challenging the award dated 18.07.2018 passed by 3rd Motor Accident Claims Tribunal, Raipur (C.G.) in Claim Case No.291/2016 whereby the Tribunal has awarded compensation of Rs10,15,000/- with interest @ 7.5% per annum, from the date of application till its realization, in favour of the claimants and against the Insurance Company. 2. The facts, in brief, necessary for disposal of this appeal, are that on 24.01.2016, while the deceased was riding a motorcycle bearing registration No. CG 04 KQ 9352 along with his wife near Amlidih Water Tank, a vehicle bearing registration No. CG 04 HZ 3 6140, driven in a rash and negligent manner, collided with the motorcycle, resulting in fatal injuries to the deceased. The deceased, aged about 41 years and employed with D.T.D.C. Courier earning ₹15,000 per month, was claimed to be the family’s breadwinner, and a total compensation of ₹28,00,000 was sought under various heads. Respondent Nos. 1 and 2, the owner and driver of the offending vehicle, failed to file their written statements and were proceeded ex parte. The present appellant, the insurer of the vehicle, filed a written reply denying liability, asserting breach of policy conditions on the grounds that the driver did not possess a valid and effective driving licence and that the vehicle, registered as a goods carriage, was being plied without a valid permit. In support of its defence, the appellant examined the Investigating Officer of the criminal case as DW-1, who deposed that no driving licence was seized and an offence under Sections 3/181 of the Act was added in the charge sheet. The appellant’s officer, examined as DW-2, corroborated that the police confirmed no licence had been produced, and the authorised officer from the RTO, examined as DW-3, affirmed that no driving licence had been issued in the name of the driver, Rakesh Dass, from RTO Raipur. It was also established from the seizure memo that no valid permit for the goods vehicle was produced. Despite these facts and evidence, the learned Tribunal held that mere registration of an offence and filing of a challan do not conclusively establish absence of a valid licence and, 4 accordingly, fastened liability upon the insurer. Aggrieved by the said finding, the appellant has preferred the present appeal challenging the award on grounds of misappreciation of evidence and failure to consider the breach of policy conditions. 3. While passing the impugned award, the Tribunal held the driver/owner and Insurance Company jointly or severally liable and fastened the primary liability of payment of compensation upon the Insurance company, against which, the present appeal has been filed by the Insurance Company for exoneration from liability. 4. Learned counsel for the appellant–Insurance Company respectfully submits that the impugned award passed by the learned Tribunal is contrary to law and facts on record, and suffers from grave illegality and material irregularity. The Tribunal has failed to appreciate the documentary and oral evidence adduced by the appellant, particularly the Seizure Memo, which clearly establishes that neither a valid driving licence nor a valid permit was seized by the police during investigation, thereby proving breach of the terms and conditions of the insurance policy. It is submitted that the appellant’s evidence, including the depositions of the Investigating Officer, Company Officer, and RTO Official, conclusively demonstrates that the driver of the offending vehicle was not holding a valid and effective driving licence and that the vehicle, registered as a goods carriage, was being plied in a 5 public place without a valid permit, in violation of Section 66 of the Motor Vehicles Act, 1988. The Tribunal has erred in disregarding the uncontroverted contention of the appellant, especially when the owner and driver were proceeded ex parte, did not file any written statement, nor produced any licence or permit to rebut the appellant’s defence. The finding of the Tribunal that mere filing of a charge sheet for driving without licence does not ipso facto establish absence of licence is perverse and unsustainable, as the entire evidence on record remained unrebutted. Further, the Tribunal has committed an additional illegality in erroneously assessing the income of the deceased at ₹6,000 per month and in granting addition towards future prospects without any cogent proof of income. Hence, the impugned award deserves to be set aside or suitably modified in the interest of justice. 5. There is no representation made on behalf of claimants and driver despite issuance of notice to them. 6. None for the Respondent No.6. From a perusal of the service report, it is evident that no person by the name of Ritesh Dass resides at the address furnished in the record. The said address is the same as was mentioned before the learned Tribunal, where Respondent No.6 had also remained ex-parte. In these circumstances, this Court is of the considered view that service upon Respondent No.6 is sufficient and that it is not necessary to issue any further notice or afford any opportunity of hearing to 6 him, the said respondent having already chosen not to contest the proceedings either before the Tribunal or before this Court. 7. Heard learned counsel for the appellant and perused the record. 8. Upon perusal of the documents available on record, it is evident that there is no material to establish that the driver of the offending vehicle possessed a valid and effective driving licence at the time of the accident. Respondents No.5 and 6, namely the driver and owner of the offending vehicle, failed to appear before the learned Tribunal and did not file any written statement or reply to substantiate the existence of a valid driving licence or to demonstrate that the vehicle was not being operated in contravention of the terms and conditions of the insurance policy. 9. On the issue of pay and recover, the Hon’ble Supreme Court, in the matter of Akula Narayana v. Oriental Insurance Company Limited and Another , reported in 2025 SCC OnLine SC 2377 , has held as follows, and the relevant paragraphs are reproduced hereinbelow:- “11. At the outset, we may observe that there is no appeal by the insured against High Court's order holding him not entitled to the benefit of insurance. In such circumstances, we have only to consider whether the High Court should have completely absolved the insurer of its liability or ought to have directed the insurer to pay with liberty to recover the 7 same from the vehicle owner. 12. Where the contract of insurance is not disputed, even on breach of insurance conditions, this Court had allowed recovery of compensation from the insurer by giving right to the insurer to recover the same from the vehicle owner. The pay and recover principle has been consistently followed even though it was doubted in a reference which remained unanswered. Taking a conspectus of various pronouncements, this Court recently in Rama Bai v. Amit Minerals again applied the said principle and while allowing the appeal of the claimant directed that the insurance company shall satisfy the award and may recover from the insured. Following the aforesaid decisions, we deem it appropriate to allow the appeal by directing that the first respondent (i.e., the insurer) shall satisfy the award, though, however, it can recover the amount so paid from the insured (i.e., owner of the vehicle).” 10. In view of the aforesaid facts, this Court is of the considered opinion that the learned Tribunal committed an error in law in fastening the liability upon the appellant–Insurance Company. However, keeping in view the law laid down by the Hon’ble Supreme Court in the case of Akula Narayana (supra) and also in Amrit Paul Singh and Another v. Tata AIG General Insurance Co. Ltd. and Others , (2018) 7 SCC 558 , this Court 8 deems it appropriate to direct that the appellant–Insurance Company shall satisfy the award amount by first paying the compensation to the claimants and shall thereafter be entitled to recover the same from the driver and owner of the offending vehicle in accordance with law. 11. Accordingly, this appeal of the Insurance Company is partly allowed. Rest of the condition of the award shall remain intact. 12. Record of the Claims Tribunal be sent back along with a copy of this order forthwith for information and necessary action, if any. Certified Copy as per rules. No order as to costs. Sd/- (Amitendra Kishore Prasad) Judge Saxena