Branch Manager, National ... vs Shabana Khan And Ors
2022 Latest Caselaw 5903 Chatt

                                        1
                                                                             AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                                 MAC No. 322 of 2015

  1. Branch Manager, National Insurance Company Limited Kamthi Line
     Rajnandgaon, Chhattisgarh, Chhattisgarh

                                                                     ---- Appellant

                                    Versus

  1. Shabana Khan And Ors. S/o Wd/o Afzal Khan Aged About 35 Years R/o
     Nishad Para, Ward No. 5, Post, P.S. And Tahsil-Mohla, District-
     Rajnandgaon, Chhattisgarh, Chhattisgarh

  2. Rubi D/o Late Afzal Khan Aged About 18 Years R/o Nishad Para, Ward No.
     5, Post, P.S. And Tahsil-Mohla, District- Rajnandgaon, Chhattisgarh,
     District : Rajnandgaon, Chhattisgarh

  3. Shanu S/o Late Afzal Khan Aged About 16 Years Minor Through Natural
     Guardian Mother Shabana Khan, R/o Nishad Para, Ward No. 5, Post, P.S.
     And Tahsil-Mohla, District- Rajnandgaon, Chhattisgarh, District :
     Rajnandgaon, Chhattisgarh

  4. Rajak Khan S/o Late Afzal Khan Aged About 15 Years Minor Through
     Natural Guardian Mother Shabana Khan, R/o Nishad Para, Ward No. 5,
     Post, P.S. And Tahsil-Mohla, District- Rajnandgaon, Chhattisgarh, District :
     Rajnandgaon, Chhattisgarh

  5. Sohag Singh S/o Dhansuram Halba Aged About 40 Years R/o Chilmagota,
     Post Dondi Lohara, Balod, District-Durg, Chhattisgarh, District : Durg,
     Chhattisgarh

  6. Hemlal Idsa S/o Dhansuram Idsa R/o Chilmagota, Post Dondi Lohara,
     Balod, District-Durg, Chhattisgarh, District : Durg, Chhattisgarh

                                                             --- Respondents

For Appellant                    : Mr. Raj Awasthi, Advocate.
For Respondents, 1 to 4          : Mr. Alok Tiwari, Advocate.
For Respondent/s. 5 & 6          : Mr. Praveen Dhurandhar, Advocate.




                   Hon'ble Shri Justice P. Sam Koshy
                              Order On Board
21.09.2022

1. The present is an appeal by the Insurance Company under Section

173 assailing the award dated 24.12.2014 in MAC No. 14/2014

passed by the First Additional Motor Accident Claims Tribunal

Rajnandgaon. Vide the impugned award, the Tribunal has quantified

the compensation payable to the claimants at Rs. 4,50,000/- with

interest @ 6% per annum from the date of application. The Tribunal

further while passing the award, has applied the principle of "Pay and

Recovery" and thus has fastened the liability of payment of

compensation upon the Insurance Company with liberty to recover it

from the owner. It is this order of "Pay and Recovery" which is under

challenge in the present appeal.

2. Counsel for the appellant submits that it is a case where the driver did

not have a license at all at the time of accident, thus, there was a

fundamental breach of the policy condition itself. Therefore, the

Tribunal has erred in fastening the liability upon the Insurance

Company by applying the principle of "Pay and Recovery". According

to the counsel for appellant, the Insurance Company also had moved

an application of notice to produce the document to the owner and the

driver but in-spite of notice being issued, the respondent, driver and

owner have failed to produce on record any document to show that

the driver at the relevant point of time, had a valid license. Therefore,

the finding is bad.

3. According to the counsel for the appellant, the finding of the Tribunal

is also bad for the reason that the owner as also the driver both had

appeared before the Tribunal and were represented through their

respective counsel and in-spite of that they have failed to produce this

essential document so far as the license is concerned.

4. Undisputedly, the accident did take place on 13.01.2013, the

offending vehicle in the said accident was the Motorcycle bearing

registration Number CG-07-AH-8379. As a result of the accident, the

deceased Afzal Khan who was traveling on his motor cycle was hit by

the another motorcycle belonging to the respondent No. 6 and driven

by the respondent No. 5. Resulting in his suffering grievous injuries to

which he later succumbed. The deceased was aged around 40 years

at the time of accident.

5. Hon'ble Supreme Court in the case of National Insurance Co. Ltd. V.

Swaran Singh, reported in (2004) 3 SCC 297 while laying down

Parameters/guidelines while deciding the claim application by the

Tribunal in clause (iii), (iv) & (vi) of paragraph 110, has held as under:-

(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. 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 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 licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the

cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.

6. Reiterating the said principle, the Hon'ble Supreme Court again in the

case of Jawahar Singh v. Bala Jain reported in (2011) 6 SCC 425, in

Paragraph 10, 11, 12, has held as under:-

"10. On behalf of Respondent 6, National Insurance Company Ltd., it was sought to be urged that at the time of the accident, the motorcycle was being driven in breach of the terms and conditions of the insurance policy and, accordingly, the Insurance Company could not be held liable for making payment of the compensation awarded by the Motor Accidents Claims Tribunal. Apart from the fact that Jatin, who was riding the motorcycle, did not have a valid driving licence, it had also been established that he was a minor at the time of the accident and consequently the Insurance Company had been rightly relieved of the liability of payment of compensation to the claimants and such liability had been correctly fixed on the owner of the motorcycle, Jawahar Singh.

11. It has been well settled that if it is not possible for an awardee to recover the compensation awarded against the driver of the vehicle, the liability to make payment of the compensation awarded fell on the owner of the vehicle. It was submitted that in this case since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle. In fact, in Ishwar Chandra v. Oriental Insurance Co. Ltd., (2007) 10 SCC 650, it was held by this Court that in case the driver of the vehicle did not have a licence at all, the liability to make payment of compensation fell on the owner since it was his obligation to take adequate care to see that the driver had an appropriate licence to drive the vehicle.

12. Before the Tribunal reliance was also placed on the decision in National Insurance Co. Ltd. v. Gh. Mohd. Wani, 2004 ACJ 1424 (J&K) and National Insurance Co. Ltd. v. Gadigewwa, 2005 ACJ 40 (Kant), wherein it was held that if the driver of the offending vehicle did not have a valid driving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the special leave petition."

7. The same view has further being reiterated in the case of Shamanna

v. Divisional Manager, Oriental Insurance Company Limited),

reported in (2018) 9 SCC 650, wherein again the Hon'ble Supreme

Court in Paragraph 6 has held as under:-

"6. As per the decision in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third-party risks. The Tribunal is required to consider "as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver ... does not fulfil the requirements of law or not will have to be determined in each case".

8. The same view has further been followed in two of the recent

decisions in the case of Parminder Singh v. New India Assurance

Company Limited reported in (2019) 7 SCC 217, whereby the

Supreme Court has approved the principle of "Pay and Recovery" in

such cases. More recently again in the case of Kurvan Ansari Alias

Kurvan Ali v. Shyam Kishore Mummu reported in (2022) 1 SSC

317, in paragraph 17 applying the principle of pay and recovery, the

Supreme Court has held as under:-

"17. Accordingly, the appellants are entitled for a sum of Rs.4,70,000 (Rupees four lakhs seventy thousand only) towards total compensation with interest @ 6% p.a. from the date of claim petition till the date of realisation. The enhanced compensation shall be apportioned between the appellants as ordered by the Tribunal. The entire compensation shall be paid to the appellants by Respondent 2 insurance company, and we keep it open to the insurance company to recover the same from Respondent 1 owner of the motorcycle by initiating appropriate proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident."

9. For all the aforesaid reasons, this Court does not find any strong case

made out by the appellant calling for an interference with the order of

the Tribunal so far as pay and recovery is concerned. At the same

time, there is a cross appeal also filed by the claimants seeking for

enhancement of compensation as quantified by the Tribunal.

10. According to the counsel for the claimants, the deceased was running

a chicken center at the time of his accident and he was earning much

more amount than what has been assessed by the Tribunal and the

assessment of income by the Tribunal is unreasonably low. Moreover,

the Tribunal has also not awarded any compensation towards future

prospects and all of which could have enhanced the compensation

substantially.

11. Considering the fact that the accident is of the year 2013,

undoubtedly the minimum income that a person would have been

earning even as an unskilled labour would have been more than Rs.

200/- a day, this Court therefore assesses the income of the deceased

at Rs. 200/- a day i.e. Rs. 6000/- a month instead of Rs. 3000/- as

assessed by the Tribunal at the rate of Rs. 100/- a day.

12. Taking the income of the deceased at Rs. 6000/- a month, the annual

income would be Rs. 72,000/- of which, if one fourth is deducted

towards personal expenses, the amount would come to Rs. 54,000/-,

to which, if 25% towards future prospect is added, the amount would

again become Rs. 72,000/- which if multiplied applying the multiplier of

15, the amount would come to Rs. 10,80,000/-. This Court therefore

quantifies the loss of income of the deceased at Rs. 10,80,000/-, and

in addition, awards loss of consortium and expenses towards funeral

expenses and loss of estate at Rs. 70,000/-. In addition, the claimants

are also entitled for Rs. 1,20,000/- at the rate of Rs. 40,000/- each to

the three children of the deceased. That brining the total compensation

payable at Rs. 12,70,000/- instead of Rs. 4,50,000/- that was awarded

by the Tribunal.

13. The appeal of the insurance company stands rejected. The cross

appeal by the claimants stands allowed. The impugned award stands

modified accordingly. The remaining part of the award so far as rate of

interest etc is concerned, shall remain intact.

Sd/-

P. Sam Koshy) Judge Jyoti