The United India Insurance Co Ltd vs Manbodh
2025 Latest Caselaw 2121 Chatt

Chattisgarh High Court

The United India Insurance Co Ltd vs Manbodh on 25 February, 2025

                                           1


                             Digitally signed
                             by BHOLA
                             NATH KHATAI
                             Date:
                             2025.03.05
                             10:52:24 +0530




                                                         2025:CGHC:9733
                                                                              NAFR

       HIGH COURT OF CHHATTISGARH AT BILASPUR

                        MAC No. 1143 of 2016


     The United India Insurance Co Ltd. Through Divisional Manager,
     Divisional Office, Jagdalpur, Zilla- Bastar, Chhattisgarh
                                                                       --- Appellant
                                     versus
  1. Smt. Bhanmati W/o Late Dhaneshwar, Aged About 40 Years R/o-
     Village- Mustalnar, Zilla- Dhantewada, Chhattisgarh, Present
     Address-    Gangamundapara                 Geedamroad,    Jagdalpur,      Zilla-
     Bastar, Chhattisgarh
  2. Bholaram Nag S/o Sahdeo Nag, Aged About 40 Years Driver Of
     Offending Vehicle, R/o- Pathanpara, Masjidpara Geedam, Zilla-
     Dantewada, Chhattisgarh
  3. Zilaram Korram, S/o Sudram Korram, Aged About 28 Years R/o-
     Village-   Mustalnar,     Patelpara          Geedam,     Zilla-     Dantewara,
     Chhattisgarh
                                                              --- Respondents

For Appellant : Mr. Praveen Kumar Tulsyan, Advocate For Respondent(s) : None

The United India Insurance Co Ltd. Through Divisional Manager, Divisional Office, Jagdalpur, District- Bastar, Chhattisgarh

---Appellant

Versus

1. Smt. Bhanmati W/o Late Dhaneshwar, Aged About 40 Years R/o Village- Mustalnar, District- Dantewada, Chhattisgarh, Present Address Gangamundapara Geedamroad, Jagdalpur, District Bastar, Chhattisgarh

2. Smt. Meena W/o Bhuneshwar, Aged About 20 Years R/o Village- Mustalnar, District- Dantewada, Chhattisgarh, Present Address Gangamundapara Geedamroad, Jagdalpur, District Bastar, Chhattisgarh

3. Kumari Manbati D/o Late Dhaneshwar, Aged About 10 Years Minor Through Under The Guardianship Of Mother Smt. Bhanmati W/o Late Dhaneshwar, R/o Village- Mustalnar, District- Dantewada, Chhattisgarh, Present Address Gangamundapara Geedamroad, Jagdalpur, District Bastar, Chhattisgarh

4. Manbodh S/o Late Dhaneshwar Aged About 8 Years Minor Through Under The Guardianship Of Mother Smt. Bhanmati, W/o Late Dhaneshwar, R/o Village- Mustalnar, District- Dantewada, Chhattisgarh, Present Address Gangamundapara Geedamroad, Jagdalpur, District Bastar, Chhattisgarh

5. Kumari Suhana D/o Late Dhaneshwar, Aged About 6 Years Minor Through Under The Guardianship Of Mother Smt. Bhanmati W/o Late Dhaneshwar, R/o Village- Mustalnar, District- Dantewada, Chhattisgarh, Present Address Gangamundapara Geedamroad, Jagdalpur, District Bastar, Chhattisgarh

6. Bholaram Nag S/o Sahdeo Nag, Aged About 40 Years Driver Of Offending Vehicle, R/o Pathanpara, Masjidpara Geedam, District Dantewada, Chhattisgarh

7. Zilaram Korram S/o Sudram Korram, Aged About 28 Years R/o Village Mustalnar, Patelpara Geedam, District- Dantewada, Chhattisgarh

--- Respondent(s)

For Appellant : Mr. Praveen Kumar Tulsyan, Advocate For Respondent No.1 : Mr. Shikhar Shukla, Advocate For Respondents No. 6 & 7 Mr. Praveen Kumar Dhurandhar, Advocate

The United India Insurance Co Ltd. Through Divisional Manager, Divisional Office, Jagdalpur, District- Bastar, Chhattisgarh

---Appellant Versus

1. Manbodh S/o Late Dhaneshwar, Aged About 8 Years Minor Through, Under The Guardianship Of Mother Smt. Bhanmati W/o Late Dhaneshwar, R/o Village- Mustalnar, Zilla Dantewada, Chhattisgarh, Present Address Gangamundapara Geedamroad, Jagdalpur, Zilla Bastar, Chhattisgarh

2. Bholaram Nag S/o Sahdeo Nag, Aged About 40 Years Driver Of Offending Vehicle, R/o Pathanpara, Masjidpara Geedam, District Dantewada, Chhattisgarh

3. Zilaram Korram S/o Sudram Korram, Aged About 28 Years R/o Village Mustalnar, Patelpara Geedam, District- Dantewada, Chhattisgarh

--- Respondent(s)

For Appellant : Mr. Praveen Kumar Tulsyan, Advocate For Respondents : None

Hon'ble Shri Justice Sanjay Kumar Jaiswal

Order On Board

25.02.2025

1. These three appeals have been preferred by the Insurance

Company under Section 173 of the Motor Vehicles Act, 1988,

challenging the award dated 07.05.2016 passed by 1st Additional Motor Accident Claims Tribunal, Bastar, Place Jagdalpur (C.G.), in Claim Cases No.64/2015, 63/2015 & 65/2015. Since these appeals arise out of the same accident, they are being disposed of by this common order.

2. MAC No.1143/2016 has been preferred against the award passed

in Claim Case No.64/2015 in respect of the injury suffered by claimant Bhanmati, MAC No.1150/2016 has been preferred against the award passed in Claim Case No.63/2015 in respect of death of Dhaneshwar and MAC No.1151/2016 has been preferred against the award passed in Claim Case No.65/2015 in respect of injury suffered by claimant Manbodh. All the three appeals have been preferred for exoneration of the appellant Insurance company from its liability of payment of compensation.

3. The gist of claim before the Tribunal was that on 21.11.2014 at

about 4 a.m. deceased Dhaneshwar along his wife Bhanmati and son Manbodh were returning in the offending vehicle i.e. Commander Jeep bearing registration No. CG 05 ZA 2146 after attending an engagement ceremony. Due to rash and negligent driving by respondent Bholaram Nag the said vehicle overturned, as a result which Dhaneshwar, his wife Bhanmati and son Manbodh suffered grievous injures and Dhaneshwar died on the way to Hospital. Upon report being made in this regard, crime was registered against driver Bholaram Nag at PS Gidam, District Dantewada (CG).

4. In Claim Case No.64/2015, preferred by injured Bhanmati claiming

compensation for the injuries suffered by her in the accident, the Tribunal has awarded total compensation of Rs.15,000/- with interest @ 9% per annum, from the date of application till its realization. In Claim Case No.63/2015, preferred by the claimants who are the wife and children of deceased Dhaneshwar, the

Tribunal has awarded total compensation of Rs.4,43,000/- with interest @ 9% per annum, from the date of application till its realization. In Claim Case No.65/2015, preferred by injured Manbodh, the Tribunal has awarded total compensation of Rs.15,000/- with interest @ 9% per annum, from the date of application till its realization.

5. Learned Tribunal, while passing the impugned award, held the driver, owner and the insurance company jointly or severally liable for payment of compensation and fastened the primary responsibility for payment of compensation on the insurance company. It is this fastening of liability of payment of compensation against which these three appeals have been filed by the Insurance Company seeking exoneration from liability.

6. Learned counsel for the appellant-Insurance Company has challenged these appeals on three grounds:

i) The driver of the offending vehicle did not have a valid and effective licence to drive passenger carrying commercial vehicle as on the date of accident he was only having a licence of light motor vehicle (LMV).

ii) At the relevant time, the offending vehicle was not registered.

iii) The vehicle in question was a passenger carrying commercial vehicle which required permit to operate but it did not have permit at the time of accident.

Learned counsel for the appellant submits that since there has been a breach of policy conditions on the ground of the said three reasons, the insurance company cannot be held liable for payment of compensation. Hence, prayed for allowing the appeals by exonerating the insurance company from its liability.

7. Learned counsel appearing for respondents 1, 6 & 7 in MAC No.1150/2016 submit that in the facts and circumstances of the

case, the impugned awards passed by the Tribunal are just and proper and require no interference.

8. Heard learned counsel for the parties and perused the record.

9. The first ground of the Insurance Company is that at the time of accident, the driver had an LMV licence whereas he was driving a passenger carrying commercial vehicle.

10. In the case, admittedly at the time of accident, the driver of the

offending vehicle had a valid licence to drive Light Motor Vehicle (LMV). As per the provisions of Section 2(21) of MV Act, all vehicles whose weight is less than 7500 Kgs. are to be treated as 'Light Motor Vehicle'. Perusal of Ex. NA-2(C) (particulars of registration) would show that the unladen weight (U.L.W) of the offending vehicle was 1225 Kgs and the laden weight (G.V.W) was 1770 Kgs i.e. less than 7500 Kgs. Therefore, the offending vehicle would fall under LMV category and the driver at the time of accident did have a licence to drive Light Motor Vehicle (LMV). Even otherwise, in the light of the judgment of the Hon'ble Supreme Court in the case Mukund Dewangan Vs. Oriental Insurance Company Limited, (2017) 14 SCC 663, the said ground of the Insurance Company would not be sustainable.

11. The second ground is that on the date of incident, the vehicle in

question was not registered as even after obtaining NOC from RTO Dhamtari it was not registered with RTO Dantewada.

12. The authorized investigator Amarendu Kumar Dixit (AW-3) has

been examined on behalf of the Insurance Company who has stated that an application was submitted to RTO Dantewada for obtaining the details of the offending vehicle. In reply to which, it has been mentioned in Ex. N.A.-5 that NOC for registration of the offending vehicle was issued on 08.08.2012 by RTO Dhamtari in favour of RTO, Dantewada but till date the owner has not got the vehicle registered in RTO Dantewada.

13. A perusal of the records reveals that the vehicle in question was

registered at RTO, Dhamtari. The owner obtained "No Objection Certificate (NOC)" to transfer its registration from Dhamtari to Dantewada. After obtaining the NOC, if the owner could not register the vehicle at RTO Dantewada, it does not mean that previous registration of the offending vehicle in RTO Dhamtari expired or became invalid. Hence, the second ground of the Insurance Company is not acceptable.

14. The third ground is that the offending vehicle did not have a permit

at the time of accident.

15. The owner of the offending vehicle is Zilaram Korram. He himself

has stated in para-8 of his statement that the offending vehicle is a passenger carrying vehicle and he has not obtained permit from the RTO to ply the passenger carrying vehicle. The Insurance Policy (Ex.NA-3C) also shows that the offending vehicle is a passenger carrying commercial vehicle. Thus, it is clear from the evidence that the vehicle in question was a passenger carrying commercial vehicle, hence it required a permit to ply but on the date of accident it was being operated by owner Zilaram Korram without obtaining a permit from the concerned RTO.

16. Now, the question arises whether in the absence of valid permit to

the transport/commercial vehicle at the time of accident is a fundamental breach?

17. This issue had come up for consideration before the Hon'ble

Supreme Court in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558 where in para-24 it has been observed as under:

"24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not

stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle."

18. This issue has been considered by five judges Bench of Hon'ble

Kerala High Court in the matter of Pareed Pillai Vs. Oriental Insurance Company Ltd. reported in 2019 ACJ 16 and held as under:

"17. ....Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of Section 66 of the Act and by virtue of the mandate under Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in nature; unlike a case where a

transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying MACA No. 2030 of 2015 and connected cases excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers."

19. In the light of the above judgments, it is held that on the date of

accident, the offending vehicle was being operated in violation of the insurance policy condition. Therefore, the insurance Company is not liable for payment of compensation.

20. At this juncture, learned counsel for respondent No.1/claimant

submits that the offending vehicle was duly insured with the appellant Insurance Company, therefore, considering the beneficiary legislation of the Motor Vehicles Act, an order of pay and recover my be passed.

21. Admittedly, the offending vehicle was duly insured with the appellant

Insurance Company but due to breach of policy condition the Insurance Company has been exonerated from its liability. However, considering the principles laid down by the Hon'ble Supreme Court in the case of Amrit Paul Singh (supra) ordering the insurance company to pay first and then recover and also

taking note of the facts and circumstances of the present case, particularly the fact that at the time of accident the vehicle was insured with insurance company, this Court is of the opinion that it would be appropriate to pass an order of pay and recover.

22. Accordingly, it is directed that the Insurance Company of the

offending vehicle shall first pay the compensation amount awarded to the claimants and then recover the same jointly or severally from the driver and the registered owner of the vehicle in question.

23. In the result, these 3 appeals preferred by the appellant Insurance

Company stand partly allowed to the extend indicated herein- above.

24. Records of the Tribunal along with a copy of this order be sent back

forthwith for compliance and necessary action, if any.

Sd/-

(Sanjay Kumar Jaiswal) Judge Khatai