Madhya Pradesh High Court
Pradeep Kumar Shrivastava vs Pooran Singh Rathore on 8 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 8 th OF MAY, 2024
MISC. APPEAL No. 1340 of 2010
BETWEEN:-
PRADEEP KUMAR SHRIVASTAVA S/O SHRI SUBHASH
CHANDRA SHRIVASTAVA, AGED ABOUT 28 YEARS,
OCCUPATION: SERVICE AND TUTOR, R/O GERUWALA
B AN GALA, NEAR INDO CAREER SCHOOL, TYAGI
NAGAR, MORAR, GWALIOR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SAKET CHHIROLIYA - ADVOCATE)
AND
1. POORAN SINGH RATHORE S/O VIJAYSINGH
R ATHOR E OCCUPATION: DRIVER, R/O PINTO
PARK NO.2, SURYA VIHAR COLONY, P.S. GOLA KA
MANDIR, DISTT.GWALIOR (MADHYA PRADESH)
2. RAMKISHORE RATHORE S/O VIJAYSINGH
RATHORE R/O PINTO PARK NO.2, SURYA VIHAR
COLONY, POLICE STATION GOLA KA MANDIR,
GWALIOR (MADHYA PRADESH)
3. THE NEW INDIA ASSURANCE COMPANY LIMITED
THROUGH DIVISIONAL MANAGER, MANDAL
OFFICE, SACHDEVA SADAN, M.L.B.ROAD,
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR RESPONDENTS NO.1 AND 2 AND SHRI B.N.MALHOTRA -
ADVOCATE FOR RESPONDENT NO.3.)
T h is appeal coming on for order this day, t h e cou rt passed the
following:
ORDER
This Miscellaneous Appeal has been preferred by the appellant/claimant
against the award dated 31.03.2010 passed by Third Additional MACT,
Gwalior in Claim Case No.124/2009 whereby MACT has awarded an amount
of Rs.76,500/- alongwith interest @ 6% per annum in favour of the claimant.
2. The necessary facts for disposal of this appeal are that on the date of
incident, on 04.03.2009 at around 12:00 pm, appellant was going on Surya
Mandir road on foot. As soon as he reached Surya Mandir road, Gole Ka
Mandir, respondent no.1- driver of auto rickshaw bearing registration
no.MP07/R-2434 came by driving the vehicle rashly and negligently and dashed
the appellant from backside. Due to which, appellant fell down on the road and
suffered injuries on various parts of the body. He was taken to the Birla
Hospital for treatment with the help of passerby.
3. Learned counsel for the appellant submits that learned Tribunal has
exonerated respondent No.3/Insurance Company on the anvil that the driver of
the offending vehicle was not having valid permit & valid and effective driving
license. But so far as the valid and effective driving license is concerned, the
controversy has already been resolved by the Hon'ble Supreme Court in the
case of Mukund Devangan Vs. Oriental Insurance Company Ltd. (2017)
14 SCC 663. Therefore, the absence of endorsement to drive a commercial
vehicle on the driving license does not effect the validity of same to drive a
commercial vehicle. So far as the absence of permit is concerned, in such
situation order of pay and recover may be passed. In that regard, learned
counsel for the appellant relied upon the order dated 13.08.2018 passed by the
Coordinate Bench of this Court in M.A. No.473/2017 (National Insurance
Company Ltd. Vs. Prakash Singh Kushwah & Ors.) and the order dated
08.12.2020 passed by the Coordinate Bench of this Court in M.A.
No.1000/2017 (The New India Assurance Vs. Smt. Seema and others).
Learned counsel for the appellant did not argue on enhancement of the award.
4. Per contra, learned counsel for the respondent No.3/Insurance Company
supported the award but opposed the prayer made on behalf of the appellant
for pay and recover.
5 . Having heard learned counsel for the parties and perusal of record and
considering cases relied on by the learned counsel for the appellant, it seems
that Co-ordinate Benches of this Court while considering the judgments of
Hon'ble Apex Court in case of National Insurance Co. Ltd. Vs. Challa
Bharathamma and others [2004 ACJ 2094] and Shamanna Vs. Oriental
Insurance Co. Ltd. reported in (2018) 9 SCC 650 have held that in absence
of valid and effective permit of the offending vehicle, the Insurance Company is
liable to pay the amount of compensation first to the third party i.e. claimants
and then it may recover the amount from driver and owner of the vehicle.
6. Having regard to the law laid down in aforesaid cases by Hon'ble Apex
Court and the Co-ordinate Benches of this Court, the controversy has already
been resolved in case of Mukund Devangan (Supra) with regard to the valid
and effective driving license in absence of endorsement to drive commercial
vehicle. So far as the absence of valid permit is concerned, in aforesaid cases,
Hon'ble Apex Court as well as the Co-ordinate Benches of this Court have
squarely applied the principle of pay and recover and this Court is also of the
view that order of pay and recover may be passed in the facts and
circumstances of this case.
7. Accordingly, this Miscellaneous Appeal is allowed in part by issuing a
direction that the compensation as awarded by the learned Tribunal shall be
paid by the respondent No.3/Insurance Company first to the claimants and
thereafter it may recover it from the driver and owner of the offending vehicle
i.e., respondent No.1 and 2. Remaining terms and conditions of impugned
award including the quantum of award shall remain intact.
(RAJENDRA KUMAR VANI)
JUDGE
Monika
