Madhya Pradesh High Court
Smt. Bina Bai vs Maangilal Lodhi on 30 January, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:4991
1 MA-345-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 30th OF JANUARY, 2025
MISC. APPEAL No. 345 of 2016
SMT. BINA BAI AND OTHERS
Versus
MAANGILAL LODHI AND OTHERS
Appearance:
Shri Rakesh Kumar Jain - advocate for the appellant.
Shri Aditya Narayan Sharma - advocate for the respondent
No.2/Insurance company.
ORDER
This appeal has been filed by the appellant/owner under Section
173(1) of Motor Vehicles Act, 1988 against the award dated 30.03.2015
passed in MACC No.1034/2013 by 6th MACT, Bhopal seeking setting
aside finding of tribunal whereby tribunal has exonerated insurance
company from liability to pay the compensation/for applying the principle
of pay and recover.
2. Learned counsel for the appellants submits that tribunal has wrongly
exonerated insurance company from lability to pay the compensation. It is
also urged that absence of driving licence cannot be termed as fundamental
breach of terms and conditions of insurance policy. Further, deceased was
traveling as pillion rider on motorcycle, therefore, he will be third party.
Hence, even if insurance company is exonerated from liability to pay the
NEUTRAL CITATION NO. 2025:MPHC-JBP:4991
2 MA-345-2016
compensation, still, then, principle of pay and recover should have been
applied by the tribunal. On above grounds, it is urged that appeal filed by the
appellants be allowed and insurance company be held liable to pay the
compensation. Alternatively, it is also prayed that principle of pay and
recover be applied.
3. Learned counsel for the insurance company/respondent No.2
submits that in the instant case, respondent/owner cum driver of offending
motorcycle was riding the motorcycle without there being any valid and
effective driving licence which is fundamental breach of terms and condition
of insurance company. Hence, tribunal has rightly exonerated insurance
company from liability to pay the compensation. It is also urged that at the
time of accident, deceased was traveling as pillion rider on motorcycle.
Therefore, he cannot be treated as third party and therefore, principle of pay
and recover cannot be applied. With respect to aforesaid submissions,
learned counsel for the respondent No.2 has relied upon Direndra Singh
Sengar Vs. Gopi Singh Kalicharan and another, 1(2008) ACC 266 and MA
No. 125/2015 (ICCI Lombard Gen. Insurance Limited. Vs. Nanki and
others) decided on 20.08.2024 . On above grounds, it has been prayed that the
appeal filed by the appellants be dismissed.
4. I have heard the learned counsel for the parties and perused the
record of the case.
5. From evidence on record, it is clearly established that at the time
of accident, rider of motorcycle was not having valid and effective driving
licence to ride the motorcycle. Hence, findings recorded by the tribunal with
NEUTRAL CITATION NO. 2025:MPHC-JBP:4991
3 MA-345-2016
respect to aforesaid are well supported by evidence on record. Hence, no
interference is required in the same.
6. In the instant case, the person riding the motorcycle is also the
owner of the motorcycle. Therefore, absence of driving licence is
a fundamental breach of terms and condition of insurance policy.
7. So far as liability on the part of insurance company is concerned,
admittedly, motorcycle was being ridden by respondent No.1 Maangilal
Lodhi and he was also the owner of the offending motorcycle. It is also not
in dispute that at the time of accident, deceased was sitting on motorcycle as
pillion rider
8. In para 7 of Direndra Singh Sengar's judgment (Supra), Court has
held as under:-
"As far as principles laid down in the case of National Insurance Company Ltd. Vs.
Swaran Singh & others (supra) is concerned, this is a case where the owner and
driver are the same person, he was present before the Court and once it is proved
that he was not having valid licence it is not necessary to direct for payment of
amount by Insurance Company and to give the opportunity to the Insurance
Company to recover the amount from the owner. Principles laid down in the case of
National Insurance Company Ltd. V. Swaran Singh & orther (supra) will not apply
in the facts and circumstances of the present case."
9. Similar, principle has been laid down by Patna High in United India
Insurance Company Ltd. Vs. Mosstt. Kaili Devi, 2017 2 Supreme (Pat)1519.
This Court also in Nanki and others (supra) has held that in a case when
owner and driver of offending vehicle are one and the same, then, if such
person drives vehicle without any licence, then, principle of pay and recover
cannot be applied. Hence, in view of aforesaid, it is immaterial that deceased
is third party or not.
10. Hence, in view of discussions in the forgoing paras, in this Court's
NEUTRAL CITATION NO. 2025:MPHC-JBP:4991
4 MA-345-2016
considered opinion, learned tribunal has rightly exonerated insurance
company from liability to pay the compensation and that in the instant case,
principle of pay and recover cannot be applied.
11. Hence, appeal filed by the appellants is dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE
L.R.
