Hdfc Ergo General Insurance ... vs Ram Surat Gupta And 4 Others
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Allahabad High Court

Hdfc Ergo General Insurance ... vs Ram Surat Gupta And 4 Others on 21 May, 2025

Author: Abdul Moin

Bench: Abdul Moin

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:30107
 
Court No. - 5
 

 
Case :- FIRST APPEAL FROM ORDER No. - 111 of 2012
 

 
Appellant :- Hdfc Ergo General Insurance Comp.Ltd.Thr.Asstt.Legal Manager
 
Respondent :- Ram Surat Gupta And 4 Others
 
Counsel for Appellant :- Manoj Kumar Dubey
 
Counsel for Respondent :- Ran Vijay Singh,Govind Prasad,Raj Baksh Singh,Rajiv K. Bajpai
 
Along with 
 
Case :- FIRST APPEAL FROM ORDER No. - 613 of 2014
 

 
Appellant :- Asharfi Lal And Ors.
 
Respondent :- Mundar Kumar Gupta And Another
 
Counsel for Appellant :- Rajiv K.Bajpai
 
Counsel for Respondent :- Dinesh Kumar
 
And
 
Case :- FIRST APPEAL FROM ORDER No. - 638 of 2014
 

 
Appellant :- Hdfc Ergo General Insurance Company Ltd.Lko.Thro.Its Manager
 
Respondent :- Munder Kumar Gupta And Ors.
 
Counsel for Appellant :- Manoj Kumar Dubey
 
Counsel for Respondent :- Rajiv Kumar Bajpai,Shiv Shankar Singh
 

 
Hon'ble Abdul Moin,J.
 

1. Heard Sri Manoj Kumar Dubey, learned counsel for the appellant.

2. Nobody appears on behalf of respondents no.1 to 4 despite the office report dated 29.11.2013 indicating that service has been made on respondents no.1 to 4.

3. Sri Rajiv Kumar Bajpai, learned counsel, appears on behalf of respondent no.5.

4. In F.A.F.O. No.613 of 2014,Sri Rajiv Kumar Bajpai, learned counsel, appears on behalf of the appellant while Sri Dinesh Kumar, learned counsel appears on behalf of respondent no.2. Despite the office report dated 22.04.2025 indicating that respondent no.1 has been served personally nobody responds on his behalf.

5. In F.A.F.O. No.638 of 2014, Sri Manoj Kumar Dubey, learned counsel appears on behalf of the appellant. Sri Shiv Shankar Singh, learned counsel, appears for respondent no.1, and Sri Rajiv Kumar Bajpai, learned counsel, appears for respondents no.2 to 4.

6. All the appeals are being decided together as they pertain to the same accident.

7. At the very outset, Sri Manoj Kumar Dubey, learned counsel for the appellant, states that F.A.F.O. No.638 of 2014 has only been filed in order to indicate that in the award impugned, the driver of the vehicle, which was involved in the accident which accident is the same as in F.A.F.O. No.111 of 2012, the driver has been indicated as Ramesh Kumar on the basis of the charge sheet and it has been specifically held by the learned tribunal that he was not having any driving license and accordingly the insurance company has been directed to pay the compensation with a right of recovery from the owner. He states that he is not aggrieved by the award impugned per se and prays that the said appeal be dismissed as not pressed but the appeal has only been filed in order to indicate the stand that had been taken by the learned tribunal with regard to the driver of the vehicle involved.

8. As such, F.A.F.O. No.638 of 2014 is dismissed as not pressed. However, the judgment would be perused by the Court.

9. Bereft of unnecessary details, the admitted facts of the case are that an accident is said to have occurred on 04.12.2009 involving a motorcycle and PICUP vehicle. Two persons were riding on the motorcycle namely Sri Arvind Kumar Gupta and Sri Munder Kumar Gupta. Sri Arvind Kumar Gupta died in the accident while Sri Munder Kumar Gupta received injuries.

10. The claimants of Sri Arvind Kumar Gupta filed Claim Application No.70 of 2010 in re: Ram Surat and others vs. Asharfi Lal and another before the learned tribunal. Incidentally, though in the first information report which had been lodged for the said accident the driver was not named yet in the charge sheet which had been filed by the police one Sri Ramesh Kumar was indicated as the driver of the PICUP vehicle which had caused the accident.

11. However, the claimants neither impleaded the charge sheeted driver namely Sri Ramesh Kumar nor the driver who was indicated in the written statement which was filed by the owner namely Sri Asharfi Lal wherein he had indicated that the vehicle was being driven by Sri Ram Sagar.

12. It is contended that although an objection was taken by the insurance company of the driver not being impleaded as party in the said claim application the learned tribunal was of the view that as in the written statement the owner had indicated that the vehicle was being driven by Sri Ram Sagar consequently the owner would have the best knowledge of the person who was driving the said vehicle. The learned tribunal thus, on the basis of the averments contained in the written statement of the owner of the vehicle being driven by Sri Ram Sagar and he having a valid and effective driving license on the date of the accident, held that it is the insurance company which is liable to pay compensation which has been awarded by the learned tribunal amounting to Rs.11,00,000/- for the deceased in Claim Application No.70 of 2010.

13. F.A.F.O. No.111 of 2012 has been filed by the Insurance Company raising a challenge to the award.

14. Sri Dubey further argues that another Claim Application No.80 of 2010 had been filed by Sri Munder Kumar Gupta i.e. the injured person of the same accident. The said claim application was filed against the owner, insurance company as well as the drivers Sri Ram Sagar and Sri Ramesh Kumar.

15. In the said claim application, the learned tribunal after considering the evidence as well as the charge sheet which had been filed against Sri Ramesh Kumar, the driver, was of the view that the vehicle was being driven by Sri Ramesh Kumar who did not have an effective driving license on the date of the accident and thus held the owner and the driver of the vehicle to be responsible for paying compensation jointly and severally to the injured person namely Sri Munder Kumar Gupta initially to be paid by the insurance company but right of recovery has been given to the insurance company from the other respondents. The awarded amount in this claim application was Rs.77,649/-. The insurance company has not pressed F.A.F.O. No.638 of 2014 today challenging the award.

16. In F.A.F.O. No.613 of 2014, the owner of the vehicle along with two drivers have filed the appeal raising a challenge to the judgment passed by the learned tribunal in the case of Munder Kumar Gupta (supra).

17. The argument of the appellants in this appeal is that once the learned tribunal in Claim Application No.70 of 2010 in re: Ram Surat and others vs. Asharfi Lal and another has held the driver of the vehicle to be Sri Ram Sagar consequently there was no occasion for the learned tribunal to hold with respect to the same accident in the case ofMunder Kumar Gupta (supra) on the basis of the charge sheet that had been filed by the police that the driver of the vehicle was Sri Ramesh Kumar and thus it is prayed that the right of recovery as has been accorded by the learned tribunal in the judgment of Munder Kumar Gupta (supra) dated 10.04.2014 be set-aside.

18. However, learned counsels for the contesting parties state that there is no dispute to the claimants being entitled to the awarded amount either from the insurance company or from the owners.

19. Sri Manoj Kumar Dubey, learned counsel for the appellant, has argued on the basis of the judgment passed by the learned tribunal in the case of Ram Surat Gupta (supra) that although an objection had been taken of non-impleadment of the driver in the claim application and by also indicating that in the charge sheet which had been filed by the police the name of Sri Ramesh Kumar had been indicated and as such it was only after impleadment of the driver concerned that the correct facts can come to light as to who was the driver of the vehicle on the said date and merely because the owner in his written statement had stated that the vehicle was being driven by Sri Ram Sagar the same would not entail the non-impleadment of the driver of the vehicle more particularly keeping in view the charge sheet that had been filed by the police indicating some other driver and the fact that the F.I.R. itself had been lodged against an unknown driver yet the learned tribunal did not direct for impleadment of the driver.

20. In this regard, Sri Dubey has placed reliance on the judgment of Hon'ble Supreme Court in the case of Oriental Insurance Company Limited vs. Meena Variyal and others - (2007) 5 SCC 428 to argue that the Hon'ble Supreme Court has held that the tribunal ought to have directed the claimant to implead the driver of the vehicle at the time of the accident.

21. On the other Sri Rajiv Kumar Bajpai, learned counsel appearing for the owner and the drivers in the connected appeal has argued that when the learned tribunal in the case of Ram Surat Gupta (supra) has categorically held that the driver of the vehicle was Sri Ram Sagar consequently for the same accident there was no occasion for the learned tribunal to have held in the judgment of Munder Kumar Gupta (supra) on the basis of the charge sheet that had been filed by the police that the driver of the vehicle was Sri Ramesh Kumar and consequently learned tribunal has patently erred in doing so. It is thus prayed that the judgment of the learned tribunal in the case of Munder Kumar Gupta (supra) reflects patent non-application of mind on the part of the learned tribunal.

22. Heard learned counsels for the contesting parties.

23. From the arguments as raised by the learned counsels for the contesting parties it emerges that there is no dispute pertaining to an accident having occurred on 04.12.2009 between a motorcycle and a PICUP truck. The PICUP truck is owned by Sri Asharfi Lal. On account of the accident, of the two persons who were riding the motorcycle, Sri Arvind Kumar Gupta died and Sri Munder Kumar Gupta was injured.

24. Two separate claim applications were filed with respect to Sri Arvind Kumar Gupta and Sri Munder Kumar Gupta.

25. In the claim application filed by the claimants of Arvind Kumar Gupta i.e. Claim Application No.70 of 2010 none of the drivers were impleaded as a party. Upon an objection being raised regarding non-impleadment, the learned tribunal was of the view that as in the written statement which has been filed by the owner of the vehicle namely Sri Asharfi Lal, it has been indicated that the driver of the vehicle was Ram Sagar consequently it is owner of the vehicle who would have the best knowledge as to who was the driver of the vehicle on the fateful day and has thus rejected the objection filed by the insurance company in this regard and has held that the PICUP vehicle was being driven by Sri Ram Sagar who was having a valid and effective driving license on the date of accident and consequently has held the insurance company to be responsible for payment of the compensation.

26. However, in the judgment of Munder Kumar Gupta (supra) the learned tribunal has been persuaded by the charge sheet which had been filed indicating Sri Ramesh Kumar as the driver of the PICUP vehicle involved in the accident and after examining the fact that Sri Ramesh Kumar was not having a valid and effective driving license on the date of accident has held the insurance company as well as the owner and the driver of the vehicle to be jointly and severally responsible for the payment of the awarded amount to Sri Munder Kumar Gupta initially to be paid by the insurance company with a right of recovery.

27. Sri Asharfi Lal in F.A.F. O. No. 613 of 2014 has indicated that once the learned tribunal in the case of Ram Surat Gupta (supra) has held that the driver of the vehicle was Sri Ram Sagar consequently there cannot be any occasion for the learned tribunal to have held with respect to the same accident in the case of Munder Kumar Gupta (supra) that the driver of the vehicle was Sri Ramesh Kumar and to have granted the right of recovery to the insurance company.

28. Considering the aforesaid arguments, the Court in the instant appeals would have to examine as to whether the driver should have been impleaded as a party in the case of Ram Surat Gupta (supra).

29. The issue is necessary to be examined considering the fact that with respect to the same accident, the learned tribunal has arrived at different findings with regard to the claim application filed by the claimants of the deceased vis-a-vis the claim application filed by the injured person as detailed above.

30. The Hon'ble Supreme Court in the case of Meena Variyal (supra) has considered this aspect of the matter and has held that under general principles one would expect the driver to be impleaded before an adjudication is claimed under the Motor Vehicles Act, 1988 as to whether a claimant before the tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver.

31. For the sake of convenience, the relevant observations of the Hon'ble Supreme Court in the case of Meena Variyal (supra) are reproduced below:-

"10. Before we proceed to consider the main aspect arising for decision in this Appeal, we would like to make certain general observations. It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver. Why should not a Tribunal insist on the driver of the vehicle being impleaded when a claim is being filed?

11. As we have noticed, the relevant provisions of the Act are not intended to jettison all principles of law relating to a claim for compensation which is still based on a tortious liability. The Tribunal ought to have, in the case on hand, directed the claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the time of the accident. Here, there was also controversy whether it was Mahmood Hasan who was driving the vehicle or it was the deceased himself. Surely, such a question could have been decided only in the presence of Mahmood Hasan who would have been principally liable for any compensation that might be decreed in case he was driving the vehicle. Secondly, the deceased was employed in a limited company. It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer Company? Is there anything in theMotor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that theMotor Vehicles Act vis-`-vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer company to produce the relevant documents to show the income that was being derived by the deceased from his employment. Of course, in this case, the above two aspects become relevant only if we find the insurance company liable. If we find that only the owner of the vehicle, the employer of the deceased was liable, there will be no occasion to further consider these aspects since the owner has acquiesced in the award passed by the Tribunal against it."

(emphasis by Court)

32. As already indicated above, in the case of Ram Surat Gupta (supra) none of the two drivers were impleaded as a party i.e. neither the driver named in the charge sheet namely Sri Ramesh Kumar nor the driver who was named in the written statement filed by the owner of the vehicle namely Sri Ram Sagar. Despite the learned tribunal examining the charge sheet that had been filed by the police whereby Sri Ramesh Kumar was indicated as driver of the vehicle, learned tribunal was persuaded by the fact that as the owner of the vehicle in his written statement had indicated that it was Sri Ram Sagar who was driving the said vehicle consequently it was held that it is the owner who would be the best person to have the knowledge as to who the driver was.

33. Once a contrary stand was emerging from the written statement as was filed by the owner of the vehicle vis-a-vis the driver as was indicated in the charge sheet that was filed by the police it was in the fitness of things that the learned tribunal should have insisted for the driver to have been impleaded as a party and it was only after examination of the driver(s) that the learned tribunal could have arrived at a specific finding as to which of the two drivers was driving the vehicle on the fateful day.

34. Incidentally this aspect of the matter has been considered by the learned tribunal in the case of Munder Kumar Gupta (supra) wherein on the basis of a charge sheet which had been filed by the police, it emerged that Sri Ramesh Kumar was in fact the driver of the vehicle. The learned tribunal has held that Sri Ramesh Kumar was not having a valid and effective driving license consequently the right of recovery in the case of Munder Kumar Gupta (supra) has been given to the insurance company. There cannot be any occasion for a contrary finding pertaining to a driver being arrived at by the learned tribunal with regard to the same accident.

35. Even otherwise, once the Hon'ble Supreme Court in the case of Meena Variyal (supra) has held that on general principles the driver has to be impleaded as a party and the learned tribunal should insist for impleadment of the driver as a party and more particularly in the facts of the instant case wherein a contrary stand is emerging as to who the driver was of the vehicle on the fateful day i.e. one of the driver having a valid and effective driving license and the other driver not having a valid and effective driving license on the date of accident and the insurance company also having objected to the driver not being impleaded as a a party consequently this Court finds that the learned tribunal has patently erred in not having directed for impleadment of the driver as a party in the case of Ram Surat Gupta (supra).

36. So far as the appeal of the owner is concerned namely F.A.F.O. No.613 of 2014, suffice to state that the aforesaid observations would also govern the said appeal.

37. The Court may hasten to add here again that there is no dispute pertaining to right of the claimants to receive the aforesaid amount either from the owner of the vehicle or from the insurance company.

38. Keeping in view the aforesaid discussion, the F.A.F.O. No.111 of 2012 is partly allowed. The award dated 11.10.2011 passed by the learned tribunal is set-aside to the extent that the insurance company has been directed to pay the awarded amount.

39. In F.A.F.O. No.111 of 2012 as the judgment in the case of Ram Surat Gupta (supra) has been set-aside to the aforesaid extent as such in F.A.F.O. No.613 of 2014 the judgment dated 10.04.2014 is set-aside to the extent that the insurance company and the owner have been held jointly and severally liable to pay the aforesaid amount.

40. The learned tribunal shall proceed to decide the matters afresh after impleadment of the driver(s) in the claim application in the case of Ram Surat Gupta (supra). The appropriate application in this regard would be filed by the claimants and thereafter the learned tribunal shall proceed to decide on the aforesaid issue i.e. pertaining to the driver (s) in accordance with law.

41. Considering that the accident pertains to the year 2009 as such the learned tribunal shall proceed to decide the said claim application only to the aforesaid extent without granting any unnecessary adjournments which application would be decided within a period of six months from the date a certified copy of this order is placed on record before the learned tribunal.

42. As there is no dispute pertaining to the claimants in receiving the aforesaid amount as such the claimants would be entitled to withdraw the amount under deposit before the learned tribunal if not already withdrawn till date.

43. The statutory amount, if any, deposited before this Court be remitted to the learned tribunal in accordance with law.

44. Let the trial court record be returned as per procedure.

Order Date :- 21.5.2025

A. Katiyar