Madhya Pradesh High Court
Harisingh vs M.S.Sikarwar on 25 June, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:12813
1 MA-1640-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 25th OF JUNE, 2025
MISC. APPEAL No. 1640 of 2010
HARISINGH
Versus
M.S.SIKARWAR AND OTHERS
Appearance:
Shri R.P.Gupta - learned counsel for the appellant.
Shri Rajesh Gupta - learned counsel for the respondent No.3/Insurance
Company.
ORDER
This Miscellaneous Appeal has been preferred by the appellant against
the award dated 20.09.2010 passed by Second Additional Motor Accident
Claims Tribunal (FastracK), Sewda, District Datia in Claim Case
No.17/2009 whereby MACT has awarded an amount of Rs.1,96,500/-
alongwith interest @ 6% per annum in favour of the claimants.
2. The necessary facts for the disposal of this appeal are that on 05.08.2009
at about 10:30 AM, Atar Singh was going to the field of Kamta Prasad to do
the labour work. When he reached near Vyaspura, Seondha, a motorcycle
bearing registration number M.P.-07-KF-3860, which was being driven by
respondent No.2 - Amol Singh in a rash and negligent manner, hit Atar
Singh due to which he sustained grievous injuries. Thereafter, Atar Singh
was taken to the hospital, where he died.
NEUTRAL CITATION NO. 2025:MPHC-GWL:12813
2 MA-1640-2010
3. Learned counsel for the appellant submits that respondent No.3/Insurance
Company has been exonerated by the learned Tribunal on the ground that
there was no valid licence with respondent No.2, Amol Singh (driver of the
offending vehicle). However, keeping in view the law laid down in the case
of National Insurance Co. Ltd. vs. Swaran Singh & Ors. , (2004) 3 SCC 297,
"pay and recover" order ought to have been passed by the learned Tribunal.
In other words, the compensation amount should be paid first by respondent
No.3/Insurance Company and thereafter he will be liberty to recover the
same from the driver and owner of the offending vehicle. On this ground,
learned counsel for the appellant prays that an order in terms of "pay and
recover" be passed.
4 . Per-contra learned counsel for respondent No.3/Insurance Company
opposed the prayer on the ground that the learned Tribunal has passed the
impugned award based on the evidence adduced on record, and there is no
need to make any change in the said award.
5. Heard the learned counsel for the parties and perused the record.
6. In para-18 to 25, learned Tribunal has discussed the issue regarding valid
and effective licence of respondent No. 2 (driver of the offending vehicle)
and it is found by the learned Tribunal that at the time of accident,
respondent No.2 (driver of offending vehicle) had the licence to drive LMV.
He had not kept the licence to drive the motorcycle; therefore, at the time of
accident, he had no valid and effective licence to drive the motorcycle. The
conclusion of the learned Tribunal in this respect is not challenged and is
found to be appropriate.
NEUTRAL CITATION NO. 2025:MPHC-GWL:12813
3 MA-1640-2010
7 . The Supreme Court in the case of Swaran Singh (supra) has held as
under:
102. The summary of our findings to the various issues as raised in
these petitions are as follows:
( i ) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory
insurance of vehicles against third party risks is a social welfare legislation to
extend relief by compensation to victims of accidents caused by use of motor
vehicles. The provisions of compulsory insurance coverage of all vehicles are
with this paramount object and the provisions of the Act have to be so
interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section
163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms
of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid
driving licence of the driver, as contained in sub-section (2)(a)(ii) of section
149, have to be proved to have been committed by the insured for avoiding
liability by the insurer. Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant time, are not in
themselves defences available to the insurer against either the insured or the
third parties. To avoid its liability towards insured, the insurer has to prove
that the insured was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding use of vehicles
by duly licensed driver or one who was not disqualified to drive at the relevant
time.
(iv) The insurance companies are, however, with a view to avoid their liability
must not only establish the available defence(s) raised in the said proceedings
but must also establish 'breach' on the part of the owner of the vehicle; the
burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be
discharged, inasmuch as the same would depend upon the facts and
circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured
concerning the policy condition regarding holding of a valid licence by the
driver or his qualification to drive during the relevant period, the insurer would
not be allowed to avoid its liability towards insured unless the said breach or
breaches on the condition of driving licence is/ are so fundamental as are
found to have contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply "the rule of main purpose" and
the concept of "fundamental breach" to allow defences available to the insured
under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find
out as to whether the driving licence produced by the driver, (a fake one or
otherwise), does not fulfil the requirements of law or not will have to be
determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a
NEUTRAL CITATION NO. 2025:MPHC-GWL:12813
4 MA-1640-2010
learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section
168 is empowered to adjudicate all claims in respect of the accidents involving
death or of bodily injury or damage to property of third party arising in use of
motor vehicle. The said power of the tribunal is not restricted to decide the
claims inter se between claimant or claimants on one side and insured, insurer
and driver on the other. In the course of adjudicating the claim for
compensation and to decide the availability of defence or defences to the
insurer, the Tribunal has necessarily the power and jurisdiction to decide
disputes inter se between insurer and the insured. The decision rendered on the
claims and disputes inter se between the insurer and insured in the course of
adjudication of claim for compensation by the claimants and the award made
thereon is enforceable and executable in the same manner as provided
in Section 174 of the Act for enforcement and execution of the award in favour
of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a
conclusion that the insurer has satisfactorily proved its defence in accordance
with the provisions of section 149(2) read with sub-section (7), as interpreted
by this Court above, the Tribunal can direct that the insurer is liable to be
reimbursed by the insured for the compensation and other amounts which it
has been compelled to pay to the third party under the award of the tribunal.
(xi) The provisions contained in sub-section (4) with proviso thereunder and
sub-section (5) which are intended to cover specified contingencies mentioned
therein to enable the insurer to recover amount paid under the contract of
insurance on behalf of the insured can be taken recourse of by the Tribunal and
be extended to claims and defences of insurer against insured by relegating
them to the remedy before regular court in cases where on given facts and
circumstances adjudication of their claims inter se might delay the
adjudication of the claims of the victims.
8 . It is clear from paragraph 102 (x) that Supreme Court in the case
o f Swaran Singh (supra) has held that where, on adjudication of the claim, the
Tribunal comes to the conclusion that the insurer has satisfactorily proved its
defence, then the Tribunal can also direct that the insurer is liable to be
reimbursed by the insured for the compensation and other amounts which it
has been compelled to pay to the third party. Similarly, paragraph 102 (xi)
provides that the provisions contained in sub-section 4 with the proviso
thereunder and sub-section 5 are intended to cover specified contingencies
mentioned therein to enable the insurer to recover the amount. If the insurance
company is held jointly and severally liable, then there is no question of the
application of paragraph 102 (x) of the judgment passed in the case of Swaran
NEUTRAL CITATION NO. 2025:MPHC-GWL:12813
5 MA-1640-2010
Singh (supra). Therefore, it is clear that Para 102(x) would apply where the
insurer has successfully proved its defence.
9. However, keeping in view the law laid down in the case of Swaran
Singh (supra), since respondent No. 2 (the driver of the offending vehicle)
had the licence to drive an LMV, though admittedly he had no licence to
drive a motorcycle, the liability of respondent No. 3-Insurance Company
cannot be denied to pay the compensation amount first to the claimant and
then recover it from the owner and driver of the offending vehicle.
10. In the result, the appeal filed on behalf of the appellant/claimant is
hereby allowed in the aforesaid terms, and it is directed that the
compensation amount including interest as assessed by the learned Tribunal
shall be paid by respondent No. 3-Insurance Company to the claimant first,
and thereafter it shall be at liberty to recover the same from the driver and
owner of the offending vehicle. The remaining terms and conditions of the
impugned award shall remain intact.
11. In view of the aforesaid, this appeal stands disposed of.
(RAJENDRA KUMAR VANI)
JUDGE
Ahmad
