Bheem Sen vs Raseed Khan
2022 Latest Caselaw 9748 MP

1        THE HIGH COURT OF MADHYA PRADESH
                     MA No.650/2014
         (Bheem Sen & Ors. Vs. Raseed Khan & Ors.)

Gwalior, Dated :15/07/2022

      Shri Ashok Kumar Yadav, Advocate for appellants.

      Shri Ram Vilas Sharma, Advocate for respondent no.3.

This Miscellaneous Appeal under Section 173 of the Motor

Vehicles Act has been filed against the award dated 05/05/2014

passed by 11th Additional Motor Accident Claims Tribunal, Gwalior

in Claim Case No.15/2013, by which the insurance company has

been exonerated from its liability to pay the compensation amount

on the ground that the driver of the offending vehicle was not

having driving license at the time of the accident.

2. Challenging the award passed by the Claims Tribunal, it is

submitted by the counsel for the claimants/appellants that even if

the driver of the vehicle was not having driving license, still the

insurance company can be saddled with the liability of payment of

compensation amount with a right to recover the same from the

owner and the driver. To buttress his contentions, the counsel for

the appellants has relied upon the judgment passed by this Court in

the case of Smt. Mithlesh Gurjar and Ors. vs. Santosh Pal and 2 THE HIGH COURT OF MADHYA PRADESH MA No.650/2014 (Bheem Sen & Ors. Vs. Raseed Khan & Ors.)

Ors. passed in MA No.950/2017 decided on 10/2/2020.

3. Per contra, it is submitted by the counsel for the respondent

no.3 that since the offending vehicle was being plied without any

driving license, therefore, the insurance company has been rightly

exonerated.

4. Heard learned counsel for the parties.

5. The present appeal has been filed by the claimants against

exoneration of the insurance company. Undisputedly, the offending

vehicle was insured by respondent no.3-insurance company. The

insurance company has been exonerated only on the ground that the

offending vehicle was being driven without any driving license.

This Court in the case of Smt. Mithlesh Gurjar (Supra) has held

as under:-

"Without challenging the findings recorded by the Claims Tribunal that the offending vehicle was being plied without valid permit, it is submitted by the Counsel for the appellants, that the Claims Tribunal should have applied the principle of Pay and Recover.

Per contra, it is submitted by the Counsel for the Insurance Company, that since, the offending vehicle was being driven without valid permit, therefore, the Insurance Company has been rightly exonerated in 3 THE HIGH COURT OF MADHYA PRADESH MA No.650/2014 (Bheem Sen & Ors. Vs. Raseed Khan & Ors.)

toto.

Heard the learned Counsel for the Parties. The Supreme Court in the case of Shivaraj Vs. Rajendra reported in (2018) 10 SCC 432 has held as under :-

''10. The High Court, however, found in favour of Respondent 2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, the driver. As a result, the Insurance Company (Respondent 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.

11. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the appellant claimant with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. v. Swaran Singh, Mangla Ram v. Oriental Insurance Co. Ltd., Rani v. National Insurance Co. Ltd. and including Manuara Khatun v. Rajesh Kumar Singh. In 4 THE HIGH COURT OF MADHYA PRADESH MA No.650/2014 (Bheem Sen & Ors. Vs. Raseed Khan & Ors.)

other words, the High Court should have partly allowed the appeal preferred by Respondent 2. The appellant may, therefore, succeed in getting relief of direction to Respondent 2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner, Respondent 1. In the present case also, the injured persons were sitting in the trolley, attached with Tractor No. MP 06 J.A. 4039. The claims Tribunal has come to a conclusion that since, the Tractor was insured for agricultural purposes and no extra premium was paid for the passengers, therefore, the Insurance Company is not liable to pay compensation due to breach of Insurance Policy, however, applied the principle of pay and recover.'' The Supreme Court in the case of Manuara Khatun Vs. Rajesh Kumar Singh reported in 2017 ACJ 1031 has held as under :-

''16. This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping 5 THE HIGH COURT OF MADHYA PRADESH MA No.650/2014 (Bheem Sen & Ors. Vs. Raseed Khan & Ors.)

in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".

Further, the Insurance Policy is a contract between the insured and the insurer and the insurer agrees to indemnify the insured against all the claims arising out of use of vehicle, however, such contract is subject to the conditions that the vehicle shall not be plied or driven contrary to the provisions of law as well as Insurance Policy. Thus, it is clear that the insurer/Insurance Company can get away from its liability of indemnifying the insured by proving that the vehicle was being used contrary to the Insurance Policy. However, the claimants are completely stranger to the contract between the insured and the insurer. Once, the Insurance Company had agreed to indemnify the insured, then it would be a dispute between the insured and the insurer as to whether the vehicle was being used contrary to the conditions of Insurance Policy or not? But the claimants cannot be made to suffer because of inter se dispute between the insured and the insurer. Once, the vehicle is insured, then the Insurance Company must satisfy the award and if it is found by the Claims Tribunal that the vehicle was being used contrary to the conditions of Insurance Policy, then the right to recover the amount has been given to the Insurance Company without filing a separate suit against the insured. Thus, it is held that although the Insurance Company is not jointly and severally liable to pay compensation, however, the same would satisfy the compensation 6 THE HIGH COURT OF MADHYA PRADESH MA No.650/2014 (Bheem Sen & Ors. Vs. Raseed Khan & Ors.)

with liberty to recover the same from the owner."

6. Accordingly, affirming the findings given by the Claims

Tribunal that the offending vehicle was being driven without

driving license, it is held that the insurance company shall be liable

to pay compensation amount to the claimants with liberty to

recover the same from the owner and the driver.

7. With aforesaid modification, the award dated 05/05/2014

passed by 11th Additional Motor Accident Claims Tribunal, Gwalior

(M.P.) in Claim Case No.15/2013 is hereby affirmed.

8. The appeal succeeds and is hereby allowed to the extent

mentioned above.

(Deepak Kumar Agarwal) Judge

rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0 cde4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487 , serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4 AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2022.07.19 10:46:47 +05'30'