Oriental Insurance Co. Ltd. vs Km. Durupsa And 5 Others
2025 Latest Caselaw 11337 ALL

Allahabad High Court

Oriental Insurance Co. Ltd. vs Km. Durupsa And 5 Others on 9 October, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:180059
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
FIRST APPEAL FROM ORDER No. - 398 of 2015   
 
   Oriental Insurance Co. Ltd.    
 
  .....Appellant(s)   
 
 Versus  
 
   Km. Durupsa And 5 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Ashutsoh Vaish   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Archit Mehrotra, Nikhil Mishra, R.K. Gupta   
 
     
 
 Court No. - 38
 
   
 
 HON'BLE SANDEEP JAIN, J.      

1. Learned Counsel for the appellant and Sri Tanishq Goyal holding brief of Sri Nikhil Mishra learned counsel for the respondents are present.

2. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the insurer of vehicle bus No. DL-1-PA-2684 against the impugned judgment and award dated 05.11.2014 passed by the Motor Accident Claims Tribunal/Addl. District Judge court no.9, Ghaziabad, in MACP No.696 of 2003, Durupsa & others vs. Ravindra Singh & others, whereby compensation of Rs.1,54,500/- alongwith interest @ 7% per annum has been awarded in favour of claimants for the death of minor Gulbasha in an accident which occurred on 13.10.2003.

3. Factual matrix is that on the date of the accident i.e. on 13.10.2003, the minor claimants Durupsa and Sohail alongwith their father Shaqeel Ahmed, mother Kanwar Jahan and other family members were going on motorcycle No.DL-7-SW-7044, then at about 05:30 pm, it was hit from behind by a bus No.DL-1-PA-2684, which was being driven in a rash and negligent manner, due to which the minor claimants, their parents fell and subsequently Kanwar Jahan(claimant's mother) was crushed under the wheels of the bus and died on the spot. The other persons travelling on the same motorcycle, namely Mohd. Shaqeel and Gulbasha also sustained grievous injuries, who were taken to Guru Teg Bahadur Hospital, Delhi for treatment where they died. The minor claimant Durupsa also suffered serious injuries.

4. The owner of the offending bus Sanjeev Kumar, who is O.P. no.2 before the Tribunal filed his written statement in which he denied the accident but submitted that his driver Rajendra Singh was having a valid and effective driving license and the bus was insured with the Oriental Insurance Company Ltd. under Cover Note No.732421 wef 01.07.2003 till 30.06.2004, as such, if any liability to pay compensation is imposed on it then it will be indemnified by the insurance company.

5. The insurance company also filed his written statement before the Tribunal in which it was submitted that the owner, driver and the insurer of the motor cycle No.DL-7-SW-7044 and the driver of the bus No. DL-1-PA-2684 have not been impleaded as parties to the claim petition. It was further submitted that the driver of the above bus was not having a valid and effective driving license on the date of the accident and the bus was being driven in breach of the policy conditions, in absence of permit. It was also submitted that the accident occurred due to the negligence of the motorcycle driver.

6. Before the Tribunal the claimants examined Rasheed as PW-1 and Vakil as PW-2. The insurance company examined DW-1 Vipin Kumar, Senior Divisional Manager, Oriental Insurance Company. It is pertinent to mention here that on 14.08.2012, the petition was decided ex-parte against the O.P. no.2 but subsequently on an application under Order 9 Rule 13 CPC, the judgment was recalled on 09.07.2013 and subsequently the case was decided on merits after hearing the parties.

7. The Tribunal after appreciating the evidence on record has concluded that since the offending bus hit the motorcycle from behind, as such, there was no negligence on the part of the motorcycle driver in the accident.

8. A plea was raised by the insurance company before the Tribunal that since premium paid by O.P. no.2 through cheque no.684043 was dishonoured, as such, the insurance company was not liable to indemnify the claimants. The Tribunal has recorded a categorical finding that the insurance company failed to submit any evidence that a registered notice was sent to the owner of the offending bus regarding dishonour of cheque and cancellation of insurance policy, as such, the claimants being the third party cannot be deprived of the compensation and the insurance company was bound to indemnify the claimants.

9. The Tribunal has awarded a compensation of Rs.1,54,500/- along with interest @ 7% per annum to the claimants for the untimely death of minor Gulbasha, aged about 5 years, in the accident.

10. Learned counsel for the appellant insurance company submitted that the Tribunal erred in not determining the contributory negligence on the part of the motorcycle driver since at the time of the accident the deceased Shaqeel Ahmed was driving the motorcycle and his wife Kanwar Jahan and three minor children were travelling as pillion riders. Besides that, a cheque of premium issued by the owner of the bus O.P. no.2 was dishonoured, as such, the insurance company was not liable to indemnify the claimants. He further submitted that the Tribunal failed to consider the above issues in the right perspective, as such, the insurance company cannot be saddled with the liability.

11. Per contra, learned counsel for the claimants submitted that since motorcycle was hit from behind by the offending bus, as such, there was no question of any negligence on the part of the motorcycle driver. He further submitted that since the insurance company failed to prove that any registered notice was sent to the owner of the bus regarding dishonour of cheque and subsequently cancellation of insurance policy, as such, the insurance company cannot avoid its liability towards third party. Learned counsel also submitted that even if more than two persons were travelling on the motorcycle, even then it cannot be presumed that the accident occurred solely on account of this fact.

13. I have heard learned counsel for the parties and perused the record.

14. The Apex Court in the case of Ranjeet and another vs. Abdul Kayam Neb and another 2025 SCC OnLine SC 497, has held as under:-

"4. It is settled in law that once a charge sheet has been filed and the driver has been held negligent, no further evidence is required to prove that the bus was being negligently driven by the bus driver. Even if the eyewitnesses are not examined, that will not be fatal to prove the death of the deceased due to negligence of the bus driver."

(emphasis supplied)

15. The Apex Court in the case of Anjana Narayan Kamle vs. Branch Manager, Reliance Insurance Company Limited, 2023 ACJ 346 has held that contributory negligence cannot be presumed merely on account of triple riding on a motor cycle or failure to wear a helmet; there must be evidence of a casual connection between the violation and the accident or its?s impact.

16. Before the Tribunal the claimants examined PW-1 Rasheed and PW-2 Vakil to prove the factum of accident and negligence on the part of the driver of the offending bus. Both the witnesses proved that the offending bus came from behind, which was being driven in a rash and negligent manner and the bus hit the motorcycle from behind resulting in instantaneous death of Kanwar Jahan, death of Mohd. Shaqeel and Gulbasha during treatment from the injuries suffered in the accident and serious injuries to minor claimant Durupsa. The witnesses subsequently averred that in the accident, there was no negligence of the motorcycle driver. The owner and driver of the offending vehicle have not appeared in the witness box to deny the factum of accident and negligence on the part of the driver of the bus. Besides this, FIR regarding the accident was registered promptly at PS Sahibabad, District Ghaziabad having Case Crime No.913 of 2003 on 13.10.2003 at 21:30 hours by PW-2 Vakil and after investigation the charge sheet has been submitted against the driver of the offending bus. There is no evidence to prove that the accident only occurred due to travelling of more than two persons on the motorcycle.

17. In view of the above facts, there is no evidence on record to prove that there was any negligence on the part of the motorcycle driver.

18. It is also evident that the cheque issued by the owner of the offending bus i.e. O.P. no.2 was dishonoured but DW-1 Vipin Kumar in his evidence before the Tribunal failed to prove that any registered notice was sent to the owner of the bus regarding the dishonour of the cheque and cancellation of the insurance policy. The burden was upon the insurance company to prove the above facts, but the insurance company has not led any evidence on this point.

19. The Apex Court in the case of United India Insurance Co. Ltd. Vs. Laxmamma and others, (2012) 5 SCC 234, has held that where the policy of insurance is issued by an authorised insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorised insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M.V. Act unless the policy of insurance is cancelled by the authorised insurer and intimation of such cancellation has reached the insured before the accident. If the cheque gets dishonoured and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third parties which that policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof.

20. In the instant case, the Tribunal has recorded a specific finding that the insurance company failed to prove that any registered notice was sent to the owner of the offending bus owner regarding dishonour of cheque and cancellation of insurance policy issued earlier in favour of the insured, as such, there is no evidence in this regard that the insurance company communicated to the owner of the bus prior to the accident that it has cancelled the policy due to dishonour of the cheque. In the absence of the above evidence on record, the insurance company cannot evade its statutory liability under the Motor Vehicles Act,1988 as such, the Tribunal has not erred in fastening the entire liability on the insurance company. In view of this, there is no error in the conclusion reached by the Tribunal regarding the rash and negligent driving on the part of the driver of the offending bus as well as regarding the liability of the insurance company to indemnify the claimants.

21. No other points was argued by the learned counsel for the appellant.

22. The appeal is devoid of merits and is liable to be dismissed.

23. Accordingly, the appeal is dismissed.

24. The impugned judgment and award dated 05.11.2014 of the Tribunal is affirmed.

25. Office is directed to remit back the statutory deposit made by the appellant insurance company, at the time of filing of appeal, to the Tribunal concerned, forthwith.

26. Office is directed to send back the original trial court record, if received, forthwith.

27. Interim order, if any, stands vacated.

(Sandeep Jain,J.)

October 9, 2025

Himanshu