1 MAC No. 85 of 2023 2025:CGHC:55661 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 85 of 2023 1.Ramji Patel S/o Late Dhiraj Patel, Aged About 55 Years; 2.Prembai Patel W/o Ramji Patel, Aged About 53 Years; Both are R/o Village Kahrod, Police Station Kasdol, District : Balodabazar-Bhathapara, Chhattisgarh. (Claimants) ... Appellants versus 1.Vishesh Kumar Sahu S/o Sevak Ram Sahu, Aged About 26 Years, R/o Kahrod, Chowki Lavan, Police Station Kasdol, District : Balodabazar- Bhathapara, Chhattisgarh. ...........Owner Offending Vehicle Motor Cycle No. C.G. 22 S 3292. 2.I.C.I.C.I. Lombard General Insurance Company Limited Address- Ground Floor, Commercial Bhawan, Devendra Nagar Road Raipur, District : Raipur, Chhattisgarh. ...........Insurer Offending Vehicle Motor Cycle No. C.G. 22 S 3292. ... Respondents ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.11.17 11:25:59 +0530 2 MAC No. 85 of 2023 For Appellants :- Mr. Jaiprakash Yadu, Advocate, on behalf of Mr. S.K. Verma, Advocate. For Respondent No.2 :- Mr. Suraj Patel, Advocate, on behalf of Mr. Shekhar Rao Amin, Advocate. SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 14.11.2025 1.This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) has been preferred by the appellants/claimants challenging the impugned award dated 08.12.2022 passed by the Motor Accident Claims Tribunal, Balodabazar-Bhathapara, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 87/2021 whereby learned Claims Tribunal has dismissed the claimants’ claim application filed under Section 163-A of the Act of 1988 finding no merit. 2.The fact of the case is that on 14.11.2020 the accident occurred while driving the offending vehicle by Lakhan Lal Patel which was owned by Vishesh Kumar Sahu, respondent No.1 herein and insured by respondent No.2 herein leading to 3 MAC No. 85 of 2023 filing of claim application under Section 163-A of the Act of 1988. The claim application has been rejected by the Claims Tribunal by holding that deceased was driving the vehicle after borrowing from respondent No.1 herein and he was stepped into the shoes of the owner of the vehicle, therefore, his claim petition would not be maintainable which is sough to be challenged by this appeal. 3.Mr. Jaiprakash Yadu, learned counsel for the appellants/claimants, would submit that there is no evidence on record that the deceased was driving the vehicle after borrowing it from owner of the vehicle/respondent No.1 herein as respondent No.1 has not been examined either by himself or summoned by the Insurance Company/respondent No.2 herein. Therefore, there is no evidence at all to hold that the deceased was driving the offending vehicle after borrowing it from respondent No.1 and finding in this regard is perverse and liable to be set aside. He would also submit that even if there 4 MAC No. 85 of 2023 is a breach of policy as the deceased/driver did not have the valid and effective driving license to drive the offending vehicle, the Claims Tribunal ought to have applied the principle of pay and recover would be applied in light of decision of the Supreme Court in the matter of National Insurance Company Ltd. v. Swaran Singh and Others 1 by fastening the liability upon the Insurance Company. Therefore, the instant appeal deserves to be allowed. 4.Mr. Suraj Patel, learned counsel for the Insurance Company/respondent No.2, would oppose the prayer made by learned counsel for the appellants and support the impugned award. He would submit that the fact that deceased was the borrower of the offending vehicle has been admitted by the father of the deceased Ramji Patel (AW-1) at paragraph No.5 of his cross- examination and also the said fact has stated by Law Officer of the Insurance Company Sourabh Singh (NAW-1) and he has also stated that the driver did not have the valid and effective 1 (2004) 3 SCC 297 5 MAC No. 85 of 2023 driving license. Thus the appeal deserves to be dismissed. 5.I have heard learned counsel for the parties, considered their rival submissions made herein- above and gone through the records precisely. 6.Admittedly, the deceased was driving the offending motorcycle which was owned by respondent No.1 Vishesh Kumar Sahu and insured by respondent No.2. The deceased met with the accident while driving the vehicle in question due to which he suffered injuries and died. Thereafter, the claimants/appellants herein have filed an application under Section 163-A of the Act of 1988 before the Claims Tribunal in which Insurance Company took a specific defense that the deceased had borrowed the motorcycle from respondent No.1, therefore, claim application under Section 163-A of the Act of 1988 would not be maintainable as the deceased stepped into the shoes of the owner. In order to prove the said fact of deceased being borrower, Law Officer of the Insurance Company Sourabh Singh (NAW-1) has 6 MAC No. 85 of 2023 been examined who has stated that the deceased had borrowed the vehicle from respondent No.1 and similarly father of the deceased Ramji Patel (AW-1) has also admitted said fact and these evidences have been relied upon by the Claims Tribunal. However, the fact of borrowing the vehicle was within the special knowledge either of the deceased or of owner of the vehicle/respondent No.1, and, therefore, the Insurance Company ought to have examined the owner of the vehicle/respondent No.1 to prove the fact that the deceased was the borrower of the offending vehicle, but the same has not been done by the Insurance Company. In absence of evidence of respondent No.1/owner of the vehicle the Claims Tribunal is absolutely unjustified in holding that the deceased had borrowed the vehicle from respondent No.1. In that view of the matter, finding with regard to deceased was the borrower of the offending vehicle is hereby set aside. 7 MAC No. 85 of 2023 7.Furthermore, the Claims Tribunal has also recorded a finding that the deceased had no valid and effective driving license. It has been further held that the deceased was charge- sheeted under Sections 3/181 and 5/181 of the Act of 1988 for having no driving license. However, in the instant case, on account of death of deceased criminal case was closed against the deceased, therefore, merely on the basis of FIR was registered against the deceased for offence under Sections 3/181 and 5/181 of the Act of 1988, it cannot be held that the deceased did not have a valid and effective driving license to drive the offending vehicle. The Insurance Company ought to have taken effective steps to prove that the deceased driver did not have the valid driving license to drive the offending vehicle. As such, the finding with regard to the deceased did not have the valid and effective driving license is also not proved. 8 MAC No. 85 of 2023 8.In view of the aforesaid discussion and analysis, the impugned award is set aside and consequently, as per the Second Schedule of Section 163-A of the Act of 1988, the claimants would be entitled for ₹5,00,000/- along with 7.5% from the date of filing of the application. The Insurance Company is directed to deposit the amount of compensation as awarded by this Court within a period of three months from the date of receipt of copy of this order. 9.The appeal is allowed to the extent indicated herein-above. Sd/- (Sanjay K. Agrawal) Judge Ankit