Bombay High Court
Reliance General Insurance Co. ... vs Smt. Girija Subramanian Iyer @ Girija ... on 8 May, 2025
2025:BHC-AS:21959
P.H. Jayani 905 FA639.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 639 OF 2024
Reliance General Insurance Co. Ltd.
4th Floor, Chintamani Avenue,
Goregaon (East), Mumbai - 400 063. .... Appellant
V/s.
1) Smt. Girija Subramanian Iyer
@ Girija Subramanian Mani,
Age : 67 years, Widow of the deceased
2) Mr. Karteek Subramanian Iyer,
Age : 41 years, Son of deceased,
Both are R/o. A-3, Flat No.2,
Veena Nagar, LBS Marg, Mulund (West),
Mumbai - 400 080.
3) J.S.K. Tours and Travels
254/8, III, Alka Mansion,
Dr. Ambedkar Road, Sion (West),
Mumbai, Maharashtra - 400 022
(Owner of the Motor Car)
4) Mr. Sonukumar Lekho Yadav,
Galli No.1, Near Kopari Bridge,
Anand Nagar, Dist. Thane.
(Driver of the Motor Car) ..... Respondents
Mr. Avesh A. Ghadge i/b. Mr. Akshay Kulkarni for the Appellant.
Mr. T.J. Mendon for Respondent No.1. and Respondent No.2.
Mr. Sukand Kulkarni for Respondent No.3.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 05th MAY, 2025
PRONOUNCED ON : 08th MAY, 2025
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P.H. Jayani 905 FA639.2024.doc
JUDGMENT :
-
. Present Appeal under Section 173 of the Motor Vehicles
Act, 1998 ("the Act") is preferred by the Appellant being aggrieved
and dissatisfied with the Judgment and Order dated 28/03/2023, in
Application No.2076 of 2019 ("claim"), passed by the Motor Accident
Claims Tribunal, Mumbai ("Tribunal") thereby the said claim was
allowed with costs and Respondent No.3/Original Opposite Party and
the Appellant/Insurer held jointly and severally liable to pay the
Respondent Nos.1 and 2 ("Claimants") a sum of Rs.27,84,400/-
inclusive of NFL with interest @ 7% p.a. from the date of the claim till
realization.
2) Mr. Mendon, the learned Advocate for the claimants
submitted the compilation of documents. Respondent No.4-Driver of
the offending vehicle was not held liable to pay the compensation.
Therefore, the learned Advocate for the parties submitted that the
notice to Respondent No.4 may be dispensed with and the Appeal
may be taken up for final hearing at the stage of admission itself.
Hence, the notice is dispensed with and the Appeal is taken up for
final hearing.
3) Heard Mr. Ghadge, learned Advocate for the Appellant,
Mr. Mendon, the learned Advocate for Respondent Nos.1 and 2 and
Mr. Kulkarni, learned Advocate for Respondent No.3.
P.H. Jayani 905 FA639.2024.doc
4) The facts in brief are that the claimants are the widow and
major son of late Mr. Subramanian ("deceased"). The said claim was
filed by the Claimants wherein they averred that on 03/09/2019, at
about 14:50 hours, on Eastern Freeway of Southern Flank, Chembur,
when the deceased was proceeding in Maruti Motor Car (Wagon R)
bearing registration No.MH-01-CJ-0199 ("Car No.0199"), said Car
No.0199 dashed against the rear side of a Motor Car No.HR-12-Z-
4285 ("Car No.4285") which was proceeding ahead of the Car
No.0199. Due to said impact, the Car No.0199 turned turtle and the
deceased sustained serious head injury. It was averred that the
accident occurred due to rash and negligent driving of the the Car
No.0199. The deceased was removed to Shatabdi Hospital, where he
succumbed to the injuries on 03/09/2019, while under treatment. An
FIR was lodged by Mr. Navin Juneja at RCF Police Station, Mumbai
vide C.R.No.257/2019 for the offences punishable under Sections 279
and 304-A of the Indian Penal Code against the driver of the Car
No.0199.
4.1) The deceased was working as a Senior Manager with
Applied Research International Pvt. Ltd. ("the Company") thereby he
was earning income of Rs.75,000/- per month. The deceased was the
only earning member of the family. Therefore, the claimants prayed
to award Rs.20,00,000/- with interest @ 18% per annum.
P.H. Jayani 905 FA639.2024.doc
5) Despite notice, Respondent No.3 did not file his
appearance and the claim proceeded ex-parte against him.
Respondent No.4 was also served with the notice but he did not file
his appearance. The Appellant resisted the claim by filing the written
statement (Exh.20). The Appellant denied that the Car No.0199 was
involved in the accident; that, the accident occurred due to rash and
negligent driving of the Car No.0199; and that, the deceased was
working and earning as above. It was contended that, Respondent
No.4 was not holding valid and effective driving license to drive the
Car No.0199. As such, there was willful breach of the policy terms and
conditions by Respondent No.3. Therefore, the claim be dismissed
with costs.
6) Hence, the Tribunal framed the issues. To prove the claim,
Respondent No.1 adduced her evidence on Affidavit (AW1/Exh.18)
and examined Mr. Meghraj Ratnakar Desai (AW2/Exh.38), who has
been a Project Manager in the said Company. Besides, the claimants
have relied upon various documents in evidence.
7) In rebuttal, the Appellant presented the evidence of DW1-
Shaun Henry James (Exh.50), Associate Legal Manager, who has
been working in Claims Department of the Appellant. Besides, the
Appellant relied upon the insurance policy and the policy terms and
conditions (Exh.51 colly), letter dated 08/12/2022 issued to
P.H. Jayani 905 FA639.2024.doc
Respondent No.3 along with the postal receipt (Exh.52 colly.) and the
RTO letter dated 18/01/2023 (Exh.53).
8) It is settled law that the Claimants have merely to
establish their case on the strength of preponderance of probability.
The standard of proof beyond a reasonable doubt cannot be applied
before the Tribunal.
9) On the point of the accident, the evidence of Respondent
No.1 is that the accident occurred due to rash and negligent driving of
the Car No.0199, but she was not an eye witness to the accident.
Therefore, the FIR (Exh.21) and Spot Panchanama (Exh.22) are
significant to answer the question of the negligence.
9.1) In the FIR (Exh.21), the informant - Mr. Navin Juneja has
categorically stated that at the relevant time and place, he was driving
the Car No.4285. The Car No.0199 came from behind, driven in a
rash and negligent manner and dashed to the rear right side of his
car. The Spot Panchanama indicates that the road where accident
occurred was straight and sufficiently wide. However, it is not
clarified by the Appellant as to why the Car No.0199 dashed the
informant's Car. All these circumstances indicate that Respondent
No.4 did not keep a proper lookout on the road while driving the Car
No.0199, which ultimately caused the accident. Hence, I hold that this
is the clear case of rash and negligent driving.
P.H. Jayani 905 FA639.2024.doc
10) The evidence of AW1 and AW2 is that at the time of
accident, the deceased was working as a Senior Manager, in
Administration Department of the said Company on a monthly salary
of Rs.73,983/-. This evidence is supported with the Appointment
Letter dated 01/12/2001 (Exh.40), salary slips for the months of
January, 2019 to September, 2019 of the deceased (Exh.41 colly.) and
Form No.16-A (Exh.42 colly.). The aforesaid oral and documentary
evidence did not see sufficient challenge. There is nothing on record
to doubt the genuineness of the contents of the said documents. On
the basis of said evidence, the Tribunal held that the average monthly
salary income of the deceased was Rs.66,585/- (Rs.73,983/- - TDS
Rs.7,398/-), which was yearly Rs.7,99,020/-. Out of the said amount,
the Tribunal deducted Rs.2,66,340/- (1/3 rd), towards the personal
and living expenses of the deceased. Accordingly, the multiplicand
was taken as Rs.5,32,680/-. The deceased was aged 71 years as per his
date of birth, i.e., 13/09/1947, recorded on the Aadhaar Card
(Exh.34) and Pay Slips (Exh.42). Hence, the Tribunal took the
multiplier of '5' and quantified the loss of the dependancy at
Rs.26,63,400/-. Additionally, the Tribunal awarded Rs.44,000/- to
each claimant as 'Spousal' and 'Parental' consortium respectively,
Rs.16,500/- as the 'loss of estate' and Rs.16,500/- as the 'funeral
expenses'. Thus, the Tribunal awarded a sum of Rs.27,84,400/-. This
P.H. Jayani 905 FA639.2024.doc
quantification is in abidance with the decisions in :-
(i) National Insurance Co. Ltd. vs. Pranay Sethi and Others 1,
(ii) Sarla Verma and others vs. Delhi Transport Corporation and
another2, and
(iii) Magma General Insurance Co. Ltd. vs. Nanu Ram Alia
Chuhru Ram & ors.3.
11) Insofar as the liability is concerned, in the written
statement, the Appellant contended that Respondent No.4 had no
valid and effective driving license at the time of accident. Therefore,
the Appellant was not liable to pay the compensation. In this regard,
the evidence of DW1 is that he has been aware of the facts and
circumstances of this case. By a registered letter dated 08/12/2022
(Exh.52 colly.), the Appellant called upon Respondent No.3 to
produce the driving licence of Respondent No.4 and other relevant
documents. This evidence is corroborated with the letter and the
postal registration receipt (Exh.52 colly.). The address of Respondent
No.3 stated in this letter tallies with his address on the Vakalatnama
filed by his learned Advocate Mr. Sukand Kulkarni and his address
stated in the insurance policy. The same address has been stated in
the cause-title of the claim on which the notice of the claim was
served upon Respondent No.3. As per the investigation carried out by
1 2009 ACJ 1298 (SC).
2 2017 ACJ 2700 (SC).
3. 2018 ACJ 2782 (SC).
P.H. Jayani 905 FA639.2024.doc
the Appellant, Respondent No.4 was holding the motor driving
license No.JH0220170002239, allegedly issued by the RTO
Hazaribag, Jharkhand, but the said license was fake as per the letter
dated 18/01/2023 (Exh.53) received from the RTO Hazaribag. This
evidence is supported with the payment receipt of Rs.200/- (Exh.52)
issued by the RTO. The receipt is in the name of one Mr. Sonu Kumar,
i.e., Respondent No.4, but it appears to be a mistake.
12) In the case of Pappu and Ors. vs. Vinod Kumar Lamba and
Anr.4, Respondent No.1 - the owner of the offending vehicle merely
raised a vague plea in the written statement that the offending vehicle
DIL-5955 was being driven by a person having valid driving license.
He did not disclose the name of the driver and his other details.
Besides, Respondent No.1 did not enter the witness box or examine
any witness in support of this plea. Respondent No.2 - Insurance
Company in the Written Statement had plainly refuted that plea and
also asserted that the offending vehicle was not driven by an
authorized person and having valid driving license. Respondent No.1
- owner of the offending vehicle did not produce any evidence except
a driving license of one Joginder Singh, without any specific stand
taken in the pleadings or in the evidence that the same Joginder
Singh was, in fact, authorised to drive the vehicle in question at the
4. 2018 ACJ 690 (SC).
P.H. Jayani 905 FA639.2024.doc
relevant time. Therefore, the Tribunal allowed the application in part
and it absolved the insurance company by dismissing the claim
petition against it. The High Court affirmed the view taken by
Tribunal. In this background the Hon'ble Supreme Court held that,
"... Merely producing a valid insurance certificate in
respect of the offending Truck was not enough for the
respondent No.1 to make the Insurance Company liable to
discharge his liability arising from rash and negligent
driving by the driver of the vehicle. The Insurance
Company can be fastened with the liability on the basis of
a valid insurance policy only after the basic facts are
pleaded and established by the owner of the offending
vehicle - that the vehicle was not only duly insured but
also that it was driven by an authorised person having a
valid driving license. Without disclosing the name of the
driver in the Written Statement or producing any evidence
to substantiate the fact that the copy of the driving license
produced in support was of a person who, in fact, was
authorised to drive the offending vehicle at the relevant
time, the owner of the vehicle cannot be said to have
extricated himself from his liability. The Insurance
Company would become liable only after such
foundational facts are pleaded and proved by the owner of
the offending vehicle."
12.1) However, to subserve the ends of justice, it was directed
that the Insurer shall pay the claim amount awarded by the Tribunal
to the appellants in the first instance, with liberty to recover the same
P.H. Jayani 905 FA639.2024.doc
from the owner of the vehicle in accordance with law.
13) In the case of Nirmala Kothari vs. United India Insurance
Co. Ltd.5, the Hon'ble Supreme Court observed that., "... In the case of
United India Insurance Co. Ltd. vs. Lehru & Ors. 6 a two Judge Bench
of this court has taken the view that the Insurance Company cannot
be permitted to avoid its liability on the ground that the person
driving the vehicle at the time of the accident was not duly licenced. It
was further held that the willful breach of the conditions of the policy
should be established." Then the Hon'ble Supreme Court considered
the decision in Pepsu Road Transport Corp vs. National Insurance Co.
Ltd.7 therein in it is observed and held as under :-
"8. In a claim for compensation, it is certainly open to
the insurer under Section 149 (2) (a) (ii) to take a defence
that the driver of the vehicle involved in the accident was
not duly licensed. Once such a defence is taken, the onus
is on the insurer. But even after it is proved that the
licence possessed by the driver was a fake one, whether
there is liability on the insurer is the moot question. As far
as the owner of the vehicle is concerned, when he hires a
driver, he has to check whether the driver has a valid
driving licence. Thereafter he has to satisfy himself as to
the competence of the driver. If satisfied in that regard
also, it can be said that the owner had taken reasonable
5. AIR 2020 SC 1193
6. (2003) 3 SCC 338
7. 2013 ACJ 2440
P.H. Jayani 905 FA639.2024.doc
care in employing a person who is qualified and
competent to drive the vehicle. The owner cannot be
expected to go beyond that, to the extent of verifying the
genuineness of the driving licence with the licensing
authority before hiring the services of the driver.
However, the situation would be different if at the time of
insurance of the vehicle or thereafter the insurance
company requires the owner of the vehicle to have the
licence duly verified from the licensing authority or if the
attention of the owner of the vehicle is otherwise invited
to the allegation that the licence issued to the driver
employed by him is a fake one and yet the owner does not
take appropriate action for verification of the matter
regarding the genuineness of the licence from the
licensing authority. That is what is explained in Swaran
Singh's case (supra). If despite such information with the
owner that the licence possessed by his driver is fake, no
action is taken by the insured for appropriate verification,
then the insured will be at fault and, in such
circumstances, the insurance company is not liable for the
compensation.
13.1) In Nirmala Kothari (supra) in paragraph 10 the Hon'ble
Supreme Court observed that, "... It has been categorically held in the
case of National Insurance Co. Ltd vs. Swaran Singh & Ors.8 that,
"110. (iii)...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
8. (2004) 3 SCC 297.
P.H. Jayani 905 FA639.2024.doc
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 policy regarding use of vehicles by a duly
licenced driver or one who was not disqualified to drive at
the relevant time."
13.2) Then in paragraph 11 the Hon'ble Supreme Court held
that,
"11. While hiring a driver the employer is expected to
verify if the driver has a driving licence. If the driver
produces a licence which on the face of it looks genuine,
the employer is not expected to further investigate into the
authenticity of the licence unless there is cause to believe
otherwise. If the employer finds the driver to be
competent to drive the vehicle and has satisfied himself
that the driver has a driving licence there would be no
breach of Section 149(2)(a)(ii) and the Insurance
Company would be liable under the policy. It would be
unreasonable to place such a high onus on the insured to
make enquiries with RTOs all over the country to
ascertain the veracity of the driving licence. However, if
the Insurance Company is able to prove that the
owner/insured was aware or had notice that the licence
was fake or invalid and still permitted the person to drive,
the insurance company would no longer continue to be
liable."
P.H. Jayani 905 FA639.2024.doc
14) In the case in hand, the accident occurred on 03/09/2019,
but the letter (Exh.52) was not sent to Respondent No.3 immediately
after the accident, but on 08/12/2022. The letter (Exh.53) received
from the RTO Hazaribag only states that the alleged driving license
No.JH0220170002239 was not issued in the name of Sonu Kumar-
Respondent No.4. However, said letter by the RTO cannot be treated
as the photocopy of the driving licence in dispute. There is no
evidence as to who gave the details of the said licence to the
Investigator of the Appellant to submit an application with the RTO
Hazaribag to get the information about the genuineness or otherwise
of the license. It is not the case that said information was given by the
police who investigated the crime registered on account of this
accident and the same information was supplied to the RTO
Hazaribag for the purpose of the information contained in its letter
(Exh.53). In fact, there in no evidence as to whether the said
Investigation Officer-police had verified the genuineness of the said
licence or not. For these reasons, it cannot be held that, at the time of
the accident, Respondent No.4 was using the driving licence
No.JH0220170002239 and the same licence he had shown to
Respondent No.3, to employ him as the driver. Consequently, it
cannot be held that Respondent No.3 was aware of the said licence, he
knew that the licence was fake, and that he had an opportunity to
P.H. Jayani 905 FA639.2024.doc
verify that licence, yet, he appointed the Respondent No.4 as the
driver.
14.1) In view of the above discussion and the reported decisions
considered in the forgoing paragraphs, I hold that the learned
Member of the Tribunal rightly held that the Appellant failed to prove
that Respondent No.4 was holding a fake driving licence and there
was a fundamental breach of the policy terms and conditions.
Consequently, the Appellant and Respondent No.3 both are jointly
and severely liable to pay the compensation quantified above.
15) The necessarily corollary of the above discussion is that
the impugned Judgment and Award is based on appreciating the
evidence on record in its correct perspective and therefore, it does not
call for any interference by this Court. Thus, there is no substance in
the Appeal and the Appeal is liable to be dismissed and is dismissed,
accordingly.
PREETI
HEERO (SHYAM C. CHANDAK, J.)
JAYANI
