National Insurance Company Limited vs Pankaj Dubey
2024 Latest Caselaw 12697 MP

Madhya Pradesh High Court

National Insurance Company Limited vs Pankaj Dubey on 6 May, 2024

Author: Avanindra Kumar Singh

Bench: Avanindra Kumar Singh

                                                        1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
                                               ON THE 6 th OF MAY, 2024
                                            MISC. APPEAL No. 4664 of 2011

                         BETWEEN:-
                         NATIONAL    INSURANCE     COMPANY    LIMITED
                         OCCUPATION: THROUGH BRANCH MANAGER SARAFA
                         BAZAR FIFTH LINE DISTT. HOSHANGABAD (MADHYA
                         PRADESH)

                                                                                   .....APPELLANT
                         (BY SHRI N. S. RUPRAH - ADVOCATE)

                         AND
                         1.    PANKAJ DUBEY S/O SHRI GAURI SHANKAR
                               DUBEY, AGED ABOUT 27 YEARS, WARD NO. 1
                               BLOCK INDIRA COLONY BABAI (MADHYA
                               PRADESH)

                         2.    SATISH YADAV S/O SHANKAR LAL YADAV, AGED
                               ABOUT 35 YEARS, NEAR DURGA MANDIR, RAM
                               NAGAR, RASULIA, HOSHANGABAD (MADHYA
                               PRADESH)

                         3.    MICHAEL JOHNSON S/O SHRI DAVED JOHNSON
                               NEAR DURGA MANDIR, RAM NAGAR, RASULIA,
                               HOSHANGABAD (MADHYA PRADESH)

                                                                                .....RESPONDENTS
                         (SHRI PRIYANK KHANDELWAL - ADVOCATE FOR RESPONDENT NO.1)
                         (NONE FOR RESPONDENT NOS. 2 & 3, THOUGH SERVED)

                               This appeal coming on for admission this day, th e court passed the
                         following:
                                                         ORDER

This Miscellaneous Appeal has been field by Insurance Company against the award dated 18.08.2011 passed in Claim Case No.1/2011, where

claimant Pankaj Dubey had filed claim petition on account of injuries sustained by him in a motor accident which took place on 25.07.2009 at District Hoshangabad, whereby non-applicant- Satish Yadav while driving his four wheeler Maruti Gypsy bearing registration No. PB-12-F-2059 rashly and negligently and hit the motor cycle bearing registration no. MP-05-MB-2947 causing injuries to claimant Pankaj Dubey. The stand of appellant Insurance Company is that at the time of driving the gypsy, Satish Yadav was having a learner driving licence and did not have any other person in vehicle, who was sitting beside him, therefore, Insurance Company seeks exoneration as well as reduction also.

2. Learned counsel appearing on behalf of Insurance company submitted that the learned 3rd Additional MACT in Para-32 of its impugned award has erroneously and wrongly interpreted the law regarding learner licence. Learned tribunal held in Para-32 that only at the time of taking instructions for driving the vehicle, any person holding a valid driving licence is required to sit along with the driver but in Motor Vehicle Rule, 1994, in Rule 3 it is mentioned that at the time of driving on public road any person holding a valid licence is required.

3. Learned counsel for respondent No.1 does not oppose the appeal on the above legal situation.

4 . Learned counsel for appellant/Insurance company also referred to Para-31 of the impugned award in which the officer of RTO was examined by the Insurance Company and he verified the fact that non-applicant No.1 Satish Yadav was having a learner driving licence and also held that it is a mandatory condition that at the time of driving a vehicle by the learner licence holder, a person should accompany him, who has a valid driving licence of that category of vehicle and the sign of "L" should also be pasted on front and rear

windshield of the vehicle and he also verified the certificate Exhibit-D/1.

5. Learned counsel for respondent No.1 submits that before the Tribunal respondent nos.4 and 5 i.e. Satish Yadav and Michel Johnson were proceeded ex-parte. It is further submitted that claimant Pankaj Dubey had given his evidence as an eye witness to the accident. In cross-examination of Pankaj Dubey it was not asked whether any person was sitting with the driver/non- applicant No.1 Satish Yadav or not, but on perusal of record, it is found that it is neither the case of Police nor the case of claimants that whether at the time of accident any person beside the driver was sitting in the Gypsy or not. No evidence of any short is on record on this point.

6. Therefore, in the considered opinion of this Court Insurance company was required to ask only those questions on cross-examination on which evidence has been given by the other party.

7. Learned counsel for the appellant/Insurance company relies upon the judgment of Hon'ble Supreme Court in the case of Pappu and others vs. Vinod Kumar Lamba 2018 3 SCC 208, wherein Hon'ble Supreme Court in para 12 has held that:-

12........The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.

8 . He further relied on the para 13-14 of the judgment of Pappu and others (supra) in which it is again held that "owner did not enter the witness box or examine any witness in support of this plea and owner of the offending vehicle did not produce any evidence except a driving licence 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 relevant time."

9 . Therefore, after hearing learned counsel for both the parties and perusing the record, this view cannot be taken that infact someone was sitting at the time of accident along with learner licence holder i.e. Satish Yadav, therefore, appeal on this ground can be allowed and accordingly reversing the award passed by learned Tribunal on this issue it is held that infact at the time of accident there was breach of insurance policy, as the vehicle was being driven by a person who did not have a valid licence to drive the vehicle without authorised person sitting with him.

1 0 . The other prayer made in this appeal is regarding the amount of compensation, but looking to the amount awarded by the learned Tribunal i.e. Rs.1,70,922/- on account of injuries sustained by him in the alleged motor accident, does not seem excessive so that any interference can be made. Therefore, the appeal filed by insurance company is partly allowed and amount of compensation is maintained, but let the Insurance company pay the amount and recover the amount from owner and driver of the offending vehicle.

11. Accordingly, this appeal is disposed of.

(AVANINDRA KUMAR SINGH) JUDGE VPA