National Insurance Company Ltd vs Niraj Kr. Gupta & Anr
2023 Latest Caselaw 1400 Cal

  24.02.23                  IN THE HIGH COURT AT CALCUTTA
10 Ct. No.654                CIVIL APPELLATE JURISDICTION
 Samarpita                           APPELLATE SIDE



                                      FMA 2444 of 2014


                               National Insurance Company Ltd.

                                           Versus

                                   Niraj Kr. Gupta & Anr.

                      Mr. Parimal Kumar Pahari ......... Appellants

                      Mr. Jayanta Kr. Modal ....... Respondent No.1

This appeal is preferred against judgement and

award dated 31st January, 2014, passed by learned

Additional District Judge-cum Judge Motor Accident

Claims Tribunal, Fast Track, 1st Court, Barrackpore,

24 Parganas (North), in MAC Case No. 463 of 2018.

Granting compensation of Rs. 4,23,516/- together

with interest in favour of the claimant under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 10th April,

2008, at about 13:20 hours while the victim was

proceeding by his motor cycle along the B.T.Road and

when he reached near Anannya Cinema Hall at

Choumatha within Baranagar police station at that

time all on a sudden the offending vehicle bearing

Registration no. WB 03/5644 (Tata 608 Lorry) in high

speed and in rash and negligent manner dashed the

motor cycle of the victim. As a result of which the

victim sustained grievous injuries on his person.

Immediately the local people shifted the victim to

R.G.Kar Medical Collage and Hospital, wherefrom he

was transferred to West Bank hospital, Andul Road,

Howrah where the victim was treated as indoor patient

from 10.4.2008 to 27.4.2008. On account of such

injuries sustained in the accident, medical treatments

and subsequent disablement, the victim injured filed

application for compensation of Rs. 4,00,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988.

The claimants in order to establish his case

examined four witnesses and produced documents

which have been marked as Exhibits 1 to 18

respectively.

The appellant-insurance company also adduced

evidence of one employee of RTO, Howrah, and

produced document which has been marked as

Exhibit-A.

Upon considering the materials on record and

the evidence adduced by the respective parties the

learned Tribunal granted compensation of Rs.

4,23,516/- together with interest in favour of the

claimant under Section 166 of the Motor Vehicles Act,

1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award the insurance

company has preferred the present appeal.

In compliance to order dated 31st January,

2023, the appellant-insurance Company sent a copy of

memorandum of appeal to respondent no. 2, owner of

the offending vehicle which has been duly delivered to

the said respondent as per track consignment report

annexed to the affidavit-in-service.

In spite of such service of notice none appears

on behalf of the respondent no. 2, owner of the

offending vehicle.

Mr Parimal Kumar Pahari, learned Advocate for

appellant-insurance company submits that the

insurance company in its additional written statement

has taken specific plea that the driver of the offending

vehicle on the relevant date of accident was not

holding valid and effective driving license to drive such

vehicle and to support of such defence plea the

insurance company adduced the evidence of one

employee from licensing authority who produced the

particulars of driving license, which clearly shows that

on the relevant date of accident on 10th April, 2008 the

validity of the license of the driver has expired.

However, the learned Tribunal failed to consider such

aspect. He further submits that since from the

materials on record it is palpably clear that the driver

of the offending vehicle on the relevant date of accident

was not holding the effective and valid driving license

to drive such vehicle, hence, insurance company

cannot be saddled with the liability to pay

compensation. In light of aforesaid submission he

prays for modification of the award.

In reply to the contention raised on behalf of the

appellant insurance company, Mr. Jayanta Kumar

Modal, learned advocate for respondent no. 1-claimant

submits that as per settled proposition of law in the

event of breach of policy of insurance the principles of

pay and recovery is to be applied.

Having heard the learned Advocate for respective

parties, it is found that the insurance company in the

present appeal has raised a solitary issue that since

the driver of the offending vehicle on the relevant date

of accident was not holding effective and valid driving

license to drive such vehicle in breach of condition of

the insurance policy, the insurance company cannot

be saddled with the liability to pay compensation.

With regard to the above issue, it is found that

the insurance company in its additional written

statement has taken specific plea that on the relevant

date of accident the driver of the offending vehicle did

not hold valid and effective driving license to drive

such vehicle. The insurance company in support of

such plea adduced the evidence of one official of RTO,

Howrah namely Swapan Kumar Dey as DW1, who

produced the particulars of driving license no. WB

115013148 (Exhibit A) in the proceedings before the

learned tribunal. The claimants produced the seizure

list (Exhibit 3) dated 10th April, 2008. On perusal of

the seizure list it is found that during the course of

investigation the investigating agency seized one

driving license in the name of the driver Khadaru Gaur

being driving license No. WB 115013148 valid up to

03.8.2008. Be that as it may, the official of the

licensing authority DW1 produced detail particulars of

the aforesaid driving license and deposed that as per

the office records license was valid up to 05.8.2007.

The particulars of driving license (Exhibit A) proved by

DW1 also shows that the aforesaid driving license of

the driver of the offending vehicle was valid up to 5th

August, 2007. Such oral evidence of DW1 and the

documentary evidence in the form of particulars of

driving license produced from the office of the licensing

authority, Howrah, has not been discredited by any

contrary evidence. Since the accident having taken

place on 10th April, 2008, it manifest from the

aforesaid evidence adduced on behalf of the insurance

company that on the relevant date of accident the

driver of the offending vehicle did not hold valid and

effective driving license to drive such vehicle. Now, the

question arises as to what would be the consequence

of such breach. In National Insurance Company

Ltd. Vs. Swaran Singh & Ors. reported in (2004) 3

SCC 297 the Hon'ble Supreme Court observed that

where on adjudication of the claim under the Act the

tribunal arrives at a conclusion that the insurer has

satisfactorily proved its defense in accordance with the

provisions of Section 149(2) read with sub-Section (7),

as interpreted by this Court above, the Tribunal can

direct that the insurer is liable to be reimbursed by the

insured for the compensation and other amounts

which it has been compelled to pay to the third party

under the award of the tribunal. The Hon'ble Supreme

Court in a subsequent decision of passed in Amrit

Paul Singh versus TATA AIG General Insurance

Company Limited reported in (2018) 7 SCC 558,

following the observation in Swaran Singh's case,

upheld the principle of pay and recovery in a case of

breach of condition of insurance policy. Bearing in

mind the aforesaid observations of the Hon'ble Court,

since it is found that the driver of the offending vehicle

was not holding effective driving license to drive such

vehicle on the relevant date of accident, hence

principles of pay and recovery is to be applied in the

facts and circumstances of the present case.

Accordingly, the imunged judgment and award is liable

to be modified giving liberty to the insurance company

to recover the amount, directed by the learned tribunal

to pay, from the owner and driver of the offending

vehicle.

It is found that the appellant-insurance

company has made statutory deposit of Rs. 25,000/-

vide OD Challan No. 323 dated 13.5.2014 and a sum

of Rs. 3,98,516/- before the Registry of this Court vide

OD Challan No. 1400 dated 9.9.2014 in terms of order

of this Court dated 28 August 2014. However, no

interest has been deposited on the aforesaid amount.

Accordingly, the insurance company is directed

to deposit the interest on the awarded sum of Rs.

4,23,516/- as directed by the leanred tribunal from

the date of claim application till deposit by way of

cheque before the learned Registrar General, High

Court Calcutta within a period of six weeks from date.

The claimant is also entitled to receive the amount

already deposited together with accrued interest.

Respondent no. 1-claimant is directed deposit

ad valorem court fees on the compensation amount, if

not already paid.

Upon deposit of the interest as indicated above

learned Registrar General, High Court, Calcutta shall

release the entire amount in favour of the respondent

no.1-claimant upon satisfaction of his identity and

payment of ad valorem court fees, if not already paid.

With the aforesaid observation the appeal is

disposed of. The impugned judgment and award of the

learned Tribunal is modified to the extent that the

insurance company shall be at liberty to recover the

compensation amount which it has been directed to

pay by the learned Tribunal, from the owner and the

driver of the offending vehicle. The quantum of

compensation determined by the learned Tribunal is

affirmed.

All connected application, if any, stands

disposed of.

Interim order, if any, stands disposed of.

Urgent photostat certified copy of this order if

applied for be given to the parties upon compliance of

all necessary legal formalities.

(Bivas Pattanayak, J)