# National Insurance Co. Limited, Lucknow v. Smt. Sahidul Nisha and others

- **Citation:** (2013) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-29
- **Bench:** Devi Prasad Singh, Arvind Kumar Tripathi-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-limited-lucknow-v-smt-sahidul-nisha-and-others-42484
- **Pages:** 6

## Text

1 All] National Insurance Co. Limited, Lucknow V. Smt. Sahidul Nisha and others
17

16. It is also provided that this order
will not create any impediment in deciding
the civil liability by the special court under
Section 154, sub clause 5 of the Act and to
recover the same from the petitioner in
accordance with law.

17. There shall be no order as to costs.
----------
APPELLATE JURISDICTION
CIVILSIDE
DATED: LUCKNOW 29.01.2013

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI-II, J.

First Appeal From Order No. 465 Of 2004

National Insurance Co. Limited, through
Regional Manager, Regional Office, LIC
Building, Nawal Kishore Road, Lucknow

 ...Appellant
Versus
Smt. Sahidul Nisha and others

 ...Respondents

Motor Vehicle Act 1988, Section 173appeal against award by accident
tribunal-appeal by insurance company
on ground the vehicle being driven by
such driver having no valid driving
license-before the tribunal the owner of
vehicle categorically stated that he has
no knowledge about possessing no valid
driving license by the driver-insurance
company not adduced any evidence
controverting
this
fact-held-tribunal
rightly shifted the burden upon the
insurance
company-no
interference
called for-appeal dismissed.

Held: Para-19

The Learned Tribunal has held that
Insurance Company has not given any
evidence to show that truck owner was
having knowledge that the driver was
not having a valid and effective driving
licence. In view of this, the Tribunal has
rightly
held
that
the
compensation
amount is to be paid by the opposite
party
no.3,
National
Insurance
Company(appellant).
Case Law discussed:
2004 (3) Supreme Court Cases page 297

(Delivered by Hon'ble Arvind Kumar
Tripathi-II, J.)

1. Heard Alka Verma, learned counsel
for the appellant and Shri M.C.Shukla,
learned counsel for the respondents.

2. The present first appeal from order
has been filed by National Insurance
Company Ltd, against the award dated
11.5.2004 passed in Claim Petition No. 192
of 2001 by Motor Accident Claims
Tribunal/Additional District Judge, Court
No.2 Sultanpur, by which learned claims
tribunal has awarded compensation of Rs.
1,26,235/-(one lakh twenty six thousand
two hundred thirty five) as compensation
for the injuries received by Smt. Sahidul
Nisha in a Motor Accident.

3. The claim petition was filed on the
ground
that
claimant
had
gone
to
Ajmersharif from Village Nizam Patti
Kasba, Sultanpur on Bus No.UHU 9172.
When the bus reached in District-Alwar
(Rajsthan) near Hotel Shiva Overseas
Dakhim Kejil in Bahroad on 1.10.2000 at
about 4.30 a.m. truck No. H.R.38/A-8565
which was being driven rashly and
negligently by its driver hit the bus from the
rear side and due to which the bus turned
turtle and several passengers in the bus
including the claimant received serious
injuries. First Information Report was
lodged by owner of the bus Sri Ramraj
Verma on 1.10.2000 at about 5.00 a.m. in
Police
Station-Bahroad,
District-Alwar
which was registered as Crime No. 460 of
2000. The claimant was taken to District
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Hospital from where she was shifted from
Jaipur and later on in Delhi.

4. The opposite party nos. 1, 2, 4 and
5, owner of Truck No. HR 38/A8565 driver
of the truck, owner of Bus No. UHU-9172
and the driver of the bus UHU-9172 have
not filed their written statement so the claim
petition proceeded ex parte against them.

5. Opposite Part No.3 has mentioned
in its written statement that they have no
information regarding the accident since
registration certificate of the vehicle,
insurance & fitness, permit and driving
licence of the driver has not been filed.
Hence, they are unable to say as to whether
Truck No.HR 38/A8565 was insured with
them or not, whenever the papers will be
filed, they may file additional written
statement. Since, the matter is of collision of
two vehicles and the proper and necessary
parties have not been impleaded, the claim
petition is bad for non-joinder of parties. It
was also mentioned in the written statement
that they are entitled to get benefit of
Section 64 BB Insurance Act, 1939 and
Section 149 and 170 Motor Vehicle Act.

6. Opposite party no.6 has filed its
written statement alleging that the bus no.
UHU 9172 was not insured by their
company, the insurance papers are forged
and registration certificate is also forged.

7. On the basis of pleading of the
parties following issues were framed by the
Motor Claims Tribunal:

(i)Whether
Smt.
Sahidul
Nisha
received injuries due to rash and negligent
driving of vehicle No.HR 38/8565 on
1.10.2000 at about 4.30 a.m. in place
Bahroad,
P.S.
Bahroad,
DistrictAlwar(Rajsthan) ? If so its effect?

(ii)Whether the vehicle No.HR38/8565
was insured with National Insurance
Company Ltd.? If so its effect ?

(iii)Whether, the vehicle in question
was not being driven as per Insurance
Policy ? If so its effect?

(iv)Whether there was contributory
negligence on the part of the vehicle UHU
9172 ? If, so its effect?

(v)To what compensation if any
claimant is entitled to ? If so its effect and
from whom ?

8. Claimant's has examined herself as
P.W.1 Sri Mahmood Khan as P.W.2 and
opposite party has examined Sri A.K.
Nirman as D.W. No.1. Apart from that
several papers have been filed which shall
be discussed later on as and when
necessary.

9. Learned Claims Tribunal after
going through the record and hearing the
arguments held that the claimant is entitled
to Rs.1, 26, 235/-(Rupees one lakh twenty
six thousand two hundred thirty five) from
National Insurance Company Ltd. along
with 8% simple interest per annum from the
date of presentation of the claim petition.

10. Feeling aggrieved this claim
petition has been filed by National
Insurance Company.

11. It was argued that the offending
vehicle was being driven in violation of
Motor Vehicle Rules and in contravention
of policy. Truck bearing no. HR38/A8565
was not being driven by the driver having
valid and effective driving licence. In the
event of breach of policy conditions by the
owner of the Truck, appellant is not liable to
1 All] National Insurance Co. Limited, Lucknow V. Smt. Sahidul Nisha and others
19
indemnify the claimant and Claim Tribunal
has also not properly appreciated the
record/documents/evidence adduced by the
appellant and has awarded excessive
amount which is not supported by the
evidence.

12. From the argument advanced by
learned counsel for the appellant it
transpires that the main thrust of the
argument is that truck no.HR-38 A8565 was
not being driven by a driver having valid
and effective driving licence and also that
there was breach of conditions of the
Insurance Policy. Hence, the liability should
not have been fastened on the insurer
instead of owner.

13. From the above, it is clear that the
appellant has not challenged the factum of
accident. A counter affidavit was also filed
from the side of the claimant and along with
counter affidavit, medical report and the
statement of the witnesses as Annexures 2,
3 and 4 of the affidavit was also filed.

14. While deciding issue no.1 Learned
Claims Tribunal has on the basis of
evidence of the claimants P.W.1Smt.
Sahidul Nisha, Sri Mahmood Khan P.W.2
has held that Bus was parked on the correct
side of the road and the truck hit from the
rear side due to which the accident
occurred, while deciding issue no.2 the
Tribunal has held that photo copy of
insurance papers have been filed in the
claim petition, the Insurance Company has
not adduced any evidence to rebut it so it is
clear that the truck was insured by National
Insurance Company.

15. So far as, argument of the
Insurance Company is that the truck was
not being driven by a driver having valid
and effective driving licence and also the
truck was not being plied with valid papers,
the Tribunal has dealt with this, in issue
no.3 Learned Tribunal below relied upon
the case of National Insurance Company
Ltd. Vs. Swaran Singh and Ors. reported
in 2004(3) Supreme Court Cases page 297;
and held that if the owner of the vehicle
knowingly permits any driver of its vehicle
who has no valid driving licence then the
Insurance Company is not liable, but if he
was under impression that the driver was
having valid and effective driving licence
then the Insurance Company will be liable
to pay. Learned Tribunal has held that there
is no evidence on record to show that the
owner had knowledge that driver was not
having valid and effective driving licence.
In view of this, despite the vehicle been
driven by the driver who has no valid
driving licence then too Insurance Company
will be liable to pay compensation and
indemnify the owner.

16. We have carefully gone through
the decision relied upon by the Tribunal.

17. The Apex Court has while
summarizing the various decisions and
provisions regarding licence as held that;

"110. 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.
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(ii) An 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 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
1 All] National Insurance Co. Limited, Lucknow V. Smt. Sahidul Nisha and others
21
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. Such
determination of claim by the Tribunal will
be enforceable and the money found due to
the insurer from the insured will be
recoverable on a certificate issued by the
tribunal to the Collector in the same
manner under Section 174 of the Act as
arrears of land revenue. The certificate will
be issued for the recovery as arrears of land
revenue only if, as required by sub-section
(3) of Section 168 of the Act the insured
fails to deposit the amount awarded in
favour of the insurer within thirty days from
the date of announcement of the award by
the tribunal.

(xi) The provisions contained in subsection (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."

18. From the above, it is clear that
insurer has to prove its defence 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. 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.

19. The Learned Tribunal has held
that Insurance Company has not given any
evidence to show that truck owner was
having knowledge that the driver was not
having a valid and effective driving licence.
In view of this, the Tribunal has rightly held
that the compensation amount is to be paid
by the opposite party no.3, National
Insurance Company(appellant).

20. In view of above, the present first
appeal from order is liable to be dismissed
and is hereby dismissed.

21. The statutory deposit or any other
deposit in this court shall be sent back by
the registry of this court to the tribunal
expeditiously.
---------
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE VIRENDRA VIKRAM SINGH, J.

Civil Misc. Writ Petition No. 555 of 2013

Smt. Meera Pandey

...Petitioner
Versus
State of U.P and others ...Respondents

Counsel for the Petitioner:
Sri Rajiv Dwivedi

Counsel for the Respondents:
C.S.C.
Sri Anuj Kumar (Addl.S.C.)

Constitution
of
India,
Article
226appointment of dealer to run fair price
shop on compassionate ground-rejected
by S.D.M. it should be appointed from
Schedule Caste (S.C.) category village
Pradhan-held-in view of provision under
para 10 (Jha) of G.O. No. 17.08.2002-no
question of fresh appointment-hence
para 10 (Jha) being special rule of
reservation for dependent of the dealer
to be considered-order impugned not
sustainable-quashed.

Held: Para-6

We
are
thus
of
the
view
that
appointment under paragraph 10 (Jha)
of
the
Government
Order
dated
17.08.2002 would not be covered by the
Rule of reservation as it is a special
appointment on compassionate ground
and only condition which has to be
considered is that the deceased-fair price
shop dealer had a good reputation and
the applicant is the dependant of such
deceased-dealer.

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard learned counsel for the
petitioner as well as learned Standing
Counsel appearing for the respondents and
perused the record.

2. Time was granted to learned
Standing Counsel to obtain instructions
which he states that he has received. With the
consent of learned counsel for the parties,
this writ petition is being finally disposed of
at this stage.

3. The case of the petitioner is that on
the death of her husband, who was the fair
price shop dealer, the petitioner moved an
application for appointment as a dealer on
compassionate ground. Provision of law for
the compassionate appointment has been
made in paragraph 10 (Jha) of the
Government Order dated 17.08.2002. The
said paragraph 10 (Jha) of the Government
Order provides that in case, the fair price
shop dealer had a good reputation, then the
dependent of such dealer may be considered
for appointment as fair price shop dealer. The
dependent has been defined as wife, son and
un-married daughter of the deceased dealer.
The petitioner being the widow of fair price
shop dealer, had applied for appointment as a
dealer under the said provision.

4. By means of the impugned order
dated 5th December, 2012 passed by
respondent No. 2-Sub Divisional Magistrate,
the application of the petitioner for
appointment on compassionate ground has
been rejected merely for the reason that the
dealership of the village in question would be
reserved for Scheduled Caste Category, for
which category the post of Pradhan is
reserved.