# National Insurance Co. Ltd v. Smt. Anuradha Kejriwal & Ors

- **Citation:** (2021) 5 ILRA 51
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-13
- **Case number:** FAFO No. 2103 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-v-smt-anuradha-kejriwal-ors-46980
- **Pages:** 17

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Section 166 - Compensation enhancement
- Application for Compensation , Sections
147 - Requirements of policies and limits
of liability, Sections 149 - Duty of insurers
to satisfy judgments and awards against
persons insured in respect of third party
risks - rash and negligent driving -
negligence - connotes reckless driving
and the injured must always prove that
the either side is negligent - If the injury
rather death is caused by something
owned or controlled by the negligent
party then he is directly liable otherwise
the
principle
of
"res
ipsa
loquitur"
meaning thereby "the things speak for
itself"
would
apply
-
principle
of
contributory negligence - A person who
either contributes or author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place
-
in
case
of
motor
accident
compensation, guess work is inevitable.
(Para - 6,17,18,41)

Claimants (legal heirs namely widow and
parents of the deceased who died in the
vehicular accident) filed claim petition before
the Tribunal claiming sum of Rs.3,40,50,000/- -
Claimants as well as the Insurance Company
saddled with liability - aggrieved by the award
and decree passed by Motor Accident Claims
Tribunal/ Additional District Judge - awarding
sum of Rs.69,70,500/- as compensation with
interest at the rate of 7%.

HELD:- The compensation payable to the
appellants (in view of the decision of the Apex
Court in National Insurance Company
Limited Vs. Pranay Sethi & ors., 2017 0
Supreme (SC) 1050) is Rs.98,44,700/- Award
and decree passed by the Tribunal shall stand
modified the apportionment as 60% to the
parents and 40% to the young widow of the
additional amounts. The respondents shall
jointly and severally liable to pay additional
amount within a period of 12 weeks from today
with interest at the rate of 7.5% from the date
of filing of the claim petition till the amount is
deposited. (Para - 48,50)

Appeals (Preferred by claimants) partly
allowed .

Appeal (Preferred by Insurance Company)
dismissed. (E-6)

List of Cases cited:-

## Text

_Characters 0–39,865 of 54,772. This is a partial read: ask again with offset=39865 for what follows._

5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
51
(2021)05ILR A51
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

FAFO No. 2103 of 2017
With
FAFO No.1735 of 2017
with
FAFO No. 1819 of 2017

National Insurance Co. Ltd. ...Appellant
Versus
Smt. Anuradha Kejriwal & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Kuldeep Shanker Amist, Sri Manoj
Nigam

Counsel for the Respondents:
Sri Amit Kumar Sinha, Deepali Srivastava
Sinha, Sri Mata Pher, Sri Ram Singh, Sri
Manoj Nigam

(A) Civil Law - Motor Vehicles Act, 1988 -
Section 166 - Compensation enhancement
- Application for Compensation , Sections
147 - Requirements of policies and limits
of liability, Sections 149 - Duty of insurers
to satisfy judgments and awards against
persons insured in respect of third party
risks - rash and negligent driving -
negligence - connotes reckless driving
and the injured must always prove that
the either side is negligent - If the injury
rather death is caused by something
owned or controlled by the negligent
party then he is directly liable otherwise
the
principle
of
"res
ipsa
loquitur"
meaning thereby "the things speak for
itself"
would
apply
-
principle
of
contributory negligence - A person who
either contributes or author of the
accident
would
be
liable
for
his
contribution to the accident having taken
place
-
in
case
of
motor
accident
compensation, guess work is inevitable.
(Para - 6,17,18,41)

Claimants (legal heirs namely widow and
parents of the deceased who died in the
vehicular accident) filed claim petition before
the Tribunal claiming sum of Rs.3,40,50,000/- -
Claimants as well as the Insurance Company
saddled with liability - aggrieved by the award
and decree passed by Motor Accident Claims
Tribunal/ Additional District Judge - awarding
sum of Rs.69,70,500/- as compensation with
interest at the rate of 7%.

HELD:- The compensation payable to the
appellants (in view of the decision of the Apex
Court in National Insurance Company
Limited Vs. Pranay Sethi & ors., 2017 0
Supreme (SC) 1050) is Rs.98,44,700/- Award
and decree passed by the Tribunal shall stand
modified the apportionment as 60% to the
parents and 40% to the young widow of the
additional amounts. The respondents shall
jointly and severally liable to pay additional
amount within a period of 12 weeks from today
with interest at the rate of 7.5% from the date
of filing of the claim petition till the amount is
deposited. (Para - 48,50)

Appeals (Preferred by claimants) partly
allowed .

Appeal (Preferred by Insurance Company)
dismissed. (E-6)

List of Cases cited:-

1. UPSRTC Vs Km. Mamta & ors., AIR 2016 SC
948

2. Munna Lal Vs Vipin, 2015 (3) TAC 1 SC and
Smt. Savita Vs Binder Singh, 2014 (2) TAC 385
(SC)

3. Bajaj Allianz General Insurance Co. Ltd. Vs
Smt. Renu Singh & ors., First Appeal From
Order No. 1818 of 2012
52 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Mallamma Vs Balaji & ors., 2003 (2) TAC
428

5. (Kant) & Oriental Insurance Co. Ltd. Vs
Reena, 2011 (4) T.A.C. 227 (All.)

6. Yogendra Pal Vs M.A.C.P. 1995 (2) TAC 152
(All) (DB).

7. Md. Siddiqui & anr. Vs National Insurance Co.
Ltd & ors., (2020) 3 SCC 57

8. Nirmala Kothari Vs United India Insurance Co.
Ltd., (2020) 4 SCC 49

9. Oriental Insurance Co. Ltd. Vs Poonam
Kesarwani & ors., 2008 LawSuit (All) 1557

10. Shashikala & ors. Vs Gangalakshmamma &
anr., Civil Appeal No.2836 of 2015

11. V. Subbalakshmi & ors. Vs S. Lakshmi & anr.
(2008) 4 SCC 224

12. Sangita Arya & ors. Vs Oriental Insurance
Co. Ltd. & ors., (2020) 5 SCC 224.

13. Sarla Verma Vs Delhi Transport Corporation,
(2009) 6 SCC 121

14. National Insurance Co. Ltd. Vs Pranay
Sethi & ors., 2017 0 Supreme (SC) 1050.

15. National Insurance Co. Ltd.Vs Mannat Johat
& ors., 2019 (2) T.A.C.705 (S.C.)

16. A.V. Padma & ors. Vs R. Venugopal, (2012)
3 SCC 378

17. General Manager, Kerala State Road
Transport
Corporation,
Trivandrum
Vs
Susamma Thomas & ors., AIR 1994 SC
1631

18. Zeemal Bano & ors. Vs Insurance Company,
2020 TAC (2) 118.

19. Smt. Sudesna & ors. Vs Hari Singh & anr.,
F.A.F.O. No.23 of 2001

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. )

1. Heard Sri Kuldip Shanker Amist,
learned counsel for National Insurance Co.
Ltd., Sri Ram Singh, assisted by Sri Amit
Kumar Sinha, learned counsel for the
claimant-parents,
Sri
Manoj
Nigam,
learned counsel for claimant-widow and Sri
Mata Pher, learned counsel for the owner
of the truck.

2. By way of these appeals, claimants
as well as the Insurance Company who has
been saddled with liability have felt
aggrieved by the award and decree dated
3.3.2017 passed by Motor Accident Claims
Tribunal/ Additional District Judge, Court
No.5, Jhansi (hereinafter referred to as
''Tribunal') awarding sum of Rs.69,70,500/-
as compensation with interest at the rate of
7%.

3. Parties are referred to as claimants
as they were arrayed in Tribunal and
Insurance Company, owner and driver
namely opponents as arrayed in Tribunal.

4. As these are appeals under Motor
Vehicles Act, 1988, as per the decision of
the Apex Court in UPSRTC Vs. Km.
Mamta and others, reported in AIR 2016
SC 948, all the issues/grounds raised in the
appeal and contested will have to be
considered and decided.

5. The factual data as it emerges from
the record is that the claimants are the legal
heirs namely widow and parents of the
deceased who died in the vehicular
accident which occurred on 2.8.2015. Till
penning of this judgment, it has not been
brought on record whether the widow who
has now in dispute with her in-laws after
the decision of the Tribunal, has remarried
or not? Therefore, we go on the premise
that she continues to be the widow of the
deceased.
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
53

6. The claimants had filed one claim
petition being MACP No. 471 of 2015
before the Tribunal claiming sum of
Rs.3,40,50,000/- for the death of Somesh
Agrawal, as according to the claimants the
accident took place on account of rash and
negligent driving of the driver of the truck
bearing No.UP 55 T 5151. It is averred in
the claim petition that the deceased was
aged
28
years
and
was
earning
Rs.25,00,000/- per annum as he was
qualified engineer and was engaged in the
business of construction work for U.P.
Power Corporation.

7. Respondent-Abdul Kalam Azad is
the owner of the truck which was being
driven by respondent-Afzal Sekh and was
insured with National Insurance Co. Ltd.
who have been saddled with the liability to
make good the amount of compensation.

8. As far as factum of accident is
concerned, the same is not in dispute. The
genesis of the accident as narrated in the
claim petition and the record go to show
that the accident occurred on 2.8.2015 at
about 2.00 p.m. when the deceased was
plying on his motorcycle bearing No.UP
93Z/7103 and was going to his factory at
Pratappura, near Pratappur Gas Agency, the
truck in question which was being driven
rashly
and
negligently
dashed
the
motorcycle of deceased from behind. The
deceased died out of accidental injuries on
the same evening.

9 . Tribunal decided issue Nos. 1 and 4
together as they were related to negligence
and involvement of the vehicles in
question. The learned Tribunal has decided
the issues in favour of the claimants as First
Information Report was filed against the
driver of the truck and charge-sheet was
laid against him. The claimants examined
three witnesses out of whom P.W.2 was
projected as eye-witness.

10. The claimants tried to prove
negligence as is required under Section 166
of Motor Vehicles Act, 1988 (hereinafter
referred to as ''Act') by leading evidence
and on relying upon documentary evidence
produced. The vehicle being insured with
National Insurance Co. Ltd. was sought to
be proved by documents filed by the owner
of the said vehicle who had filed reply and
driving license of the driver as 17C-1/6.
Very strangely the Insurance Company
filed document showing that the driver was
not authorized to drive the transport vehicle
and the said licence had expired but did not
produce any such documentary evidence so
as to convincingly prove that the vehicle
was being driven by a person who was
unauthorized. The compensation as prayed
for was on the basis that the claimants were
the parents and the widow namely they
were legal representatives of the deceased
and that the deceased had taken loan of
Rs.1 crore and was setting up a factory at
Pratappura. The claimants had claimed that
the deceased was earning Rs.25,00,000/-
per year and for which they have filed
before the Tribunal educational certificates,
training
certificates,
loan
approval
certificate,
land
allocation
certificate,
Income Tax Return and copies of bank
accounts of the deceased for the relevant
period. The income of the deceased was
objected by Insurance Company.

11. The Tribunal has considered the
income of the deceased on the basis of
Income Tax Return for the year which was
filed prior to his death. The Tribunal has
considered his income to be Rs.6,78,950/-
per annum out of which it deducted tax and
interest and considered income to be
54 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.6,09,749/-, deducted 1/3rd from the
same, granted multiplier of 17 as the
deceased was in the age group of 26-30
years and added Rs.60,000/- for non
pecuniary damages. The Tribunal refused
to grant future loss of income as according
to it the deceased was not in employment
and he was about to set up a factory and,
therefore, there was no question of future
loss of income is the finding of the
Tribunal. The Tribunal has not considered
the dicta in the judgments in Munna Lal
Vs. Vipin, 2015 (3) TAC 1 SC and Smt.
Savita Vs Binder Singh, 2014 (2) TAC
385 (SC) though cited before it. The
Tribunal mulcted the liability on the owner
but directed the compensation to be paid by
the Insurance Company as the vehicle was
insured.

12. As narrated above, the Insurance
Company has challenged the award on the
grounds that the deceased was a contributor
to the accident having taken place, that the
income considered by the Tribunal was on
higher side and same would not have been
made the basis of compensation and that
the driver of the said vehicle did not have
proper driving licence when the accident
took place as it was proved by documentary
evidence produced from the R.T.O. that the
driver did not have licence to drive
transport vehicle. It is submitted that the
evidence produced by the owner also
suffers from vice of not being given by the
authority which is said to have issued the
license.

13. As against these, claimants have
also felt aggrieved as the Tribunal has not
considered any amount for future loss of
income. The Tribunal while granting
compensation has not granted proper
interest
and
that
the
Tribunal
has
committed an error in directing 2/3rd of the
compensation to be paid to the parents and
1/3rd to the widow. The claimants have
preferred
two
different
appeals
and,
therefore, this submission is being made.

14. At the outset, the issue of
negligence as raised, the contention that the
deceased was driving the motorcycle on the
middle of the road, that the F.I.R. was a
belated
F.I.R
and
was
lodged
in
consultation with other people, and that the
motorcycle in fact had slipped on the road
and as the accident took place in the middle
of the road, the deceased was also negligent
will have to be decided.

15. It is submitted by Sri Shukla,
learned counsel for the claimants that the
deceased was rightly not considered to be
negligent as he was driving a smaller
vehicle and while driving the said vehicle
he had taken all care and caution. The
driver of the truck has been righly held
negligent and the finding of facts need not
be upturned. The submission that P.W.2
was not an eye-witness is belied from the
fact that his name has been shown in the
F.I.R. and the Charge-sheet. The truck
dashed the motorcycle from behind. The
delay in F.I.R. was because of the fact that
the deceased was in hospital, he had a
young widow and parents who had come in
trauma on hearing the said accident to their
son and, therefore, the delay has been
rightly not considered to be fatal.

Negligence:

16. Let us consider the negligence
from the perspective of the law laid down.

17. The term negligence means failure
to exercise care towards others which a
reasonable and prudent person would in a
circumstance or taking action which such a
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
55
reasonable person would not. Negligence
can be both intentional or accidental which
is normally accidental. More particularly, it
connotes reckless driving and the injured
must always prove that the either side is
negligent. If the injury rather death is
caused by something owned or controlled
by the negligent party then he is directly
liable otherwise the principle of "res ipsa
loquitur" meaning thereby "the things
speak for itself" would apply.

18. The principle of contributory
negligence has been discussed time and
again. A person who either contributes or
author of the accident would be liable for
his contribution to the accident having
taken place. The Division Bench of this
Court in First Appeal From Order No.
1818 of 2012 ( Bajaj Allianz General
Insurance Co.Ltd. Vs. Smt. Renu Singh
And Others) decided on 19.7.2016 has
held as under :

"16. Negligence means failure to
exercise required degree of care and
caution expected of a prudent driver.
Negligence is the omission to do something
which a reasonable man, guided upon the
considerations, which ordinarily regulate
conduct of human affairs, would do, or
doing something which a prudent and
reasonable man would not do. Negligence
is not always a question of direct evidence.
It is an inference to be drawn from proved
facts. Negligence is not an absolute term,
but is a relative one. It is rather a
comparative term. What may be negligence
in one case may not be so in another.
Where there is no duty to exercise care,
negligence in the popular sense has no
legal consequence. Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

17. It would be seen that burden
of proof for contributory negligence on the
part of deceased has to be discharged by
the opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection
where two roads cross each other, it is the
duty of a fast moving vehicle to slow down
and if driver did not slow down at
intersection, but continued to proceed at a
high speed without caring to notice that
another vehicle was crossing, then the
conduct of driver necessarily leads to
conclusion that vehicle was being driven by
him rashly as well as negligently.

18. 10th Schedule appended to
Motor
Vehicle
Act
contain
statutory
regulations for driving of motor vehicles
which also form part of every Driving
License. Clause-6 of such Regulation
clearly directs that the driver of every
motor vehicle to slow down vehicle at every
intersection or junction of roads or at a
turning of the road. It is also provided that
driver of the vehicle should not enter
intersection or junction of roads unless he
makes sure that he would not thereby
endanger
any
other
person.
Merely,
because driver of the Truck was driving
vehicle on the left side of road would not
absolve him from his responsibility to slow
down vehicle as he approaches intersection
of roads, particularly when he could have
easily seen, that the car over which
deceased was riding, was approaching
intersection.
56 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In view of the fast and
constantly increasing volume of traffic,
motor vehicles upon roads may be
regarded to some extent as coming within
the principle of liability defined in Rylands
V/s. Fletcher, (1868) 3 HL (LR) 330. From
the point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.

20. These provisions (sec.110A
and sec.110B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the parties.
The right of action created by Fatal
Accidents Act, 1855 was 'new in its species,
new in its quality, new in its principles. In
every way it was new. The right given to
legal representatives under Act, 1988 to file
an application for compensation for death
due to a motor vehicle accident is an
enlarged one. This right cannot be hedged
in by limitations of an action under Fatal
Accidents Act, 1855. New situations and
new dangers require new strategies and
new remedies.

21. In the light of the above
discussion, we are of the view that even if
courts may not by interpretation displace
the principles of law which are considered
to be well settled and, therefore, court
cannot dispense with proof of negligence
altogether in all cases of motor vehicle
accidents, it is possible to develop the law
further on the following lines; when a
motor
vehicle
is
being
driven
with
reasonable care, it would ordinarily not
meet with an accident and, therefore, rule
of res-ipsa loquitor as a rule of evidence
may be invoked in motor accident cases
with greater frequency than in ordinary
civil suits (per three-Judge Bench in
Jacob Mathew V/s. State of Punjab, 2005
0 ACJ(SC) 1840).

22. By the above process, the
burden of proof may ordinarily be cast on
the defendants in a motor accident claim
petition to prove that motor vehicle was
being driven with reasonable care or that
there is equal negligence on the part the
other side." emphasis added

19. The latest decision of the Apex
Court has laid down one further aspect
about considering the negligence more
particularly contributory negligence. The
deceased or the person concerned should be
shown to have contributed either to the
accident and the impact of accident upon
the victim could have been minimised if he
had taken care.

20. It is further submitted by learned
counsel for Insurance Company that the
vehicle was not even involved in the
accident as the F.I.R. was lodged after two
days by the father of the deceased and that
the technical report of both the vehicles do
not corroborate the manner of accident as
alleged.
The
technical
report
also
substantiate that the truck did not hit any
vehicle. The evidence of P.W.2 is full of
contradiction and his presence at the place
of accident is doubtful.

21 . Alternatively, it is submitted that
even if the accident occurred involving
truck No.UP 55 T5151, negligence on part
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
57
of the deceased in driving the motorcycle
was maximum and the negligence should
have been apportioned between the authors
of the accident.

22. While considering issue of
negligence, it emerges that deceased was on
motorcycle, was going ahead of the truck.
P.W.2 has categorically mentioned that the
truck driver drove the truck rashly and
negligently. The Insurance Company and the
owner took the stand that the vehicle was not
involved in the accident. The Tribunal has
considered the depositions of P.W.1 who
conveyed that his son started from his home
to go to his factory and met with the accident
though he is not an eye-witness, he was the
author of the F.I.R. The accident occurred in
broad day light. The eye-witness conveyed
that he saw the deceased driving his
motorcycle with all care and caution and was
driving the vehicle on his correct side, at that
time the truck came from behind and dashed
with the motorcycle, the driver of the truck
ran away from the place of accident and he
was the one who informed the family
members of the deceased.

23.
The
Tribunal
has
rightly
considered the case of Mallamma Vs.
Balaji and others, 2003 (2) TAC 428
(Kant) and Oriental Insurance Co. Ltd.
Vs. Reena, 2011 (4) T.A.C. 227 (All.) in
accepting the fact that the delay in lodging
the F.I.R. occurred as the family was in
trauma. The Tribunal further came to the
conclusion that the motorcycle was dashed
from behind. The driver and the owner
except filing his written statement of denial
of involvement, did not examine any
witness. The learned Tribunal has relied on
the
decision
in
Yogendra
Pal
Vs.
M.A.C.P. 1995 (2) TAC 152 (All) (DB).
Recent decision of the Apex Court in Md.
Siddiqui and another Vs National
Insurance Co. Ltd and others. (2020) 3
SCC 57 would come to the aid of the
claimants as there was no colossal
connection
of
the
deceased
having
contributed to the accident. Hence, the said
submission of Sri Amist that the deceased
has contributed in the accident cannot be
accepted.

Liability :

24. This takes us to the question of
liability
of
the
Insurance
Company.
Sections 147 and 149 of the Act reads as
follows:

"147 Requirements of policies
and limits of liability. -

(1) In order to comply with the
requirements of this Chapter, a policy of
insurance must be a policy which-

(a) is issued by a person who is
an authorised insurer; and

(b) insures the person or classes
of persons specified in the policy to the
extent specified in sub-section (2)-

(i) against any liability which
may be incurred by him in respect of the
death of or bodily injury to any person,
including owner of the goods or his
authorised representative carried in the
vehicle] or damage to any property of a
third party caused by or arising out of the
use of the vehicle in a public place;

(ii) against the death of or bodily
injury to any passenger of a public service
vehicle caused by or arising out of the use
of the vehicle in a public place:
58 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that a policy shall not
be required-

(i) to cover liability in respect of
the death, arising out of and in the course
of his employment, of the employee of a
person insured by the policy or in respect
of bodily injury sustained by such an
employee arising out of and in the course
of his employment other than a liability
arising
under
the
Workmen's
Compensation Act, 1923 (8 of 1923) in
respect of the death of, or bodily injury to,
any such employee-

(a)
engaged
in driving
the
vehicle, or

(b) if it is a public service vehicle
engaged as conductor of the vehicle or in
examining tickets on the vehicle, or

(c) if it is a goods carriage, being
carried in the vehicle, or

(ii) to cover any contractual
liability.

Explanation. --For the removal of
doubts, it is hereby declared that the death
of or bodily injury to any person or damage
to any property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a
public place notwithstanding that the
person who is dead or injured or the
property which is damaged was not in a
public place at the time of the accident, if
the act or omission which led to the
accident occurred in a public place.

(2) Subject to the proviso to
sub-section (1), a policy of insurance
referred to in sub-section (1), shall cover
any liability incurred in respect of any
accident, up to the following limits,
namely:--

(a) save as provided in clause
(b), the amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of
rupees six thousand:

Provided that any policy of
insurance issued with any limited liability
and in force, immediately before the
commencement of this Act, shall continue
to be effective for a period of four months
after such commencement or till the date
of expiry of such policy whichever is
earlier.

(3) A policy shall be of no effect for
the purposes of this Chapter unless and until
there is issued by the insurer in favour of the
person by whom the policy is effected a
certificate of insurance in the prescribed form
and containing the prescribed particulars of
any condition subject to which the policy is
issued and of any other prescribed matters;
and different forms, particulars and matters
may be prescribed in different cases.

(4) Where a cover note issued by
the insurer under the provisions of this
Chapter or the rules made thereunder is not
followed by a policy of insurance within the
prescribed time, the insurer shall, within
seven days of the expiry of the period of the
validity of the cover note, notify the fact to the
registering authority in whose records the
vehicle to which the cover note relates has
been registered or to such other authority as
the State Government may prescribe.

(5)
Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
59
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons"

149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks.-

"(1) If, after a certificate of
insurance has been issued under subsection (3) of section 147 in favour of the
person by whom a policy has been effected,
judgment or award in respect of any such
liability as is required to be covered by a
policy under clause (b) of sub-section (l) of
section 147 (being a liability covered by the
terms of the policy) 1[or under the
provisions of section 163A] is obtained
against any person insured by the policy,
then, notwithstanding that the insurer may
be entitled to avoid or cancel or may have
avoided or cancelled the policy, the insurer
shall, subject to the provisions of this
section, pay to the person entitled to the
benefit of the decree any sum not exceeding
the sum assured payable thereunder, as if
he were the judgment debtor, in respect of
the liability, together with any amount
payable in respect of costs and any sum
payable in respect of interest on that sum
by virtue of any enactment relating to
interest on judgments.

(2) No sum shall be payable by an
insurer under sub-section (1) in respect of
any judgment or award unless, before the
commencement of the proceedings in which
the judgment or award is given the insurer
had notice through the Court or, as the case
may be, the Claims Tribunal of the bringing
of the proceedings, or in respect of such
judgment or award so long as execution is
stayed thereon pending an appeal; and an
insurer to whom notice of the bringing of any
such proceedings is so given shall be entitled
to be made a party thereto and to defend the
action on any of the following grounds,
namely:--

(a) that there has been a breach of
a specified condition of the policy, being one
of the following conditions, namely:--

(i) a condition excluding the use of
the vehicle-

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a permit
to ply for hire or reward, or

(b) for organised racing and speed
testing, or

(c) for a purpose not allowed by
the permit under which the vehicle is used,
where the vehicle is a transport vehicle, or

(d) without side-car being attached
where the vehicle is a motor cycle; or

(ii) a condition excluding driving
by a named person or persons or by any
person who is not duly licensed, or by any
person who has been disqualified for holding
or obtaining a driving licence during the
period of disqualification; or

(iii)
a
condition
excluding
liability for injury caused or contributed to
by conditions of war, civil war, riot or civil
commotion; or

(b) that the policy is void on the
ground that it was obtained by the non-
60 INDIAN LAW REPORTS ALLAHABAD SERIES
disclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) Where any such judgment as
is referred to in sub-section (1) is obtained
from a Court in a reciprocating country
and in the case of a foreign judgment is, by
virtue of the provisions of section 13 of the
Code of Civil Procedure, 1908 (5 of 1908)
conclusive as to any matter adjudicated
upon by it, the insurer (being an insurer
registered under the Insurance Act, 1938 (4
of 1938) and whether or not he is
registered under the corresponding law of
the reciprocating country) shall be liable to
the person entitled to the benefit of the
decree in the manner and to the extent
specified in sub-section (1), as if the
judgment were given by a Court in India:
Provided that no sum shall be payable by
the insurer in respect of any such judgment
unless, before the commencement of the
proceedings in which the judgment is given,
the insurer had notice through the Court
concerned
of
the
bringing
of
the
proceedings and the insurer to whom
notice is so given is entitled under the
corresponding law of the reciprocating
country, to be made a party to the
proceedings and to defend the action on
grounds similar to those specified in subsection (2).

(4)
Where
a
certificate
of
insurance has been issued under subsection (3) of section 147 to the person by
whom a policy has been effected, so much
of the policy as purports to restrict the
insurance of the persons insured thereby by
reference to any condition other than those
in clause (b) of sub-section (2) shall, as
respects such liabilities as are required to
be covered by a policy under clause (b) of
sub-section (1) of section 147, be of no
effect: Provided that any sum paid by the
insurer in or towards the discharge of any
liability of any person which is covered by
the policy by virtue only of this sub-section
shall be recoverable by the insurer from
that
person.
(5) If the amount which an insurer becomes
liable under this section to pay in respect of
a liability incurred by a person insured by
a policy exceeds the amount for which the
insurer would apart from the provisions of
this section be liable under the policy in
respect of that liability, the insurer shall be
entitled to recover the excess from that
person.

(6) In this section the expression
"material fact" and "material particular"
means, respectively a fact or particular of
such a nature as to influence the judgment
of a prudent insurer in determining
whether he will take the risk and, if so, at
what premium and on what conditions, and
the expression "liability covered by the
terms of the policy" means a liability which
is covered by the policy or which would be
so covered but for the fact that the insurer
is entitled to avoid or cancel or has
avoided or cancelled the policy.

(7) No insurer to whom the notice
referred to in sub-section (2) or sub-section
(3) has been given shall be entitled to avoid
his liability to any person entitled to the
benefit of any such judgment or award as is
referred to in sub-section (1) or in such
judgment as is referred to in sub-section (3)
otherwise than in the manner provided for
in sub-section (2) or in the corresponding
law of the reciprocating country, as the
case
may
be.
Explanation.--For
the
purposes of this section, "Claims Tribunal"
means a Claims Tribunal constituted under
section 165 and "award" means an award
made by that Tribunal under section 168"
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
61

25. Learned counsel for the Insurance
Company has heavily relied on the fact that
the driver of the truck did not have proper
driving licence. It is submitted by learned
counsel for the the Insurance Company that
the document which was produced by the
Insurance Company goes to show that on
the date of accident, driver was not
authorized to drive transport vehicle. The
accident
occurred
on
2.8.2015.
The
document which was given goes to show
that there is breach of policy as licence was
not renewed. It is submitted that the driving
licence produced by the owner could not
have been relied by the Tribunal to come to
contrary finding. It is further submitted that
the R.T.O. Report produced by the owner
was an after thought and accepted without
granting any opportunity to Insurance
Company to verify veracity of the same.

26. While considering the issue of
breach of policy condition under Section
149 of the Act, we will have to elaborately
sift the documentary evidence on record
and whether the owner had taken proper
care and caution to see that the driver was
authorised to drive the vehicle or not. We
will also have to look into all those issues
on the touchstone of judgments which are
supposed to throwing light.

27. We may first deal with the factual
data and then the submission of Sri Amist,
learned counsel for Insurance Company.
We have perused the record and the driving
licence to drive the vehicle which was
produced
before
the
Tribunal.
The
Insurance Company produced a document
known as ''Report of Jai Claims Recovery
Consultants' which was produced before
the Tribunal but, unfortunately, no one was
examined to verify the data. The extract of
driving licence was given by the R.T.O.
The validity of licence to drive non
transport vehicle was up to 17.3.2030 and
validity of licence to drive transport vehicle
was up to 17.3.2013. The said document
reads as "LMV Transport Goods with
effect from 8.3.2010, transport Vehicle
M/HMV with effect from 9.11.2011". Issue
of NOC was on 13.7.2012 and, therefore,
the conclusion by "Jai Claim Recovery
Consultants" was that the driving licence
was not valid for driving the transport
vehicle at the time of accident.

28. On production of this, the owner
immediately came up with the certificate of
extract of driving license which was valid
up to 17.3.2016 for transport vehicle issued
by R.T.O. Mumbai on 25.9.2012. If we go
by the documentary evidence produced that
of
Government
of
Maharashtra
by
Insurance Company, the submission of Sri
Amist would fail as issue of NOC/CC was
in the year 2012, more particularly on
13.7.2012 which corroborates with D.L.
extract dated 27.7.2016. Record goes to
show that nothing was proved by the
Insurance Company that the said extract
was manipulated and was an after thought.
The factual data has been considered by the
Tribunal while deciding issue Nos. 2 and 3
and, therefore, in absence of any proof to
the contrary we cannot take the different
view then that taken by the Tribunal. The
findings cannot be upturned just because
the Certificate was given by R.T.O. West
and was signed by R.T.O. East as we are
not aware whether R.T.O. West was on
leave. The document at 53 C/1 has been
believed by the Tribunal as licence was
renewed for three years. Therefore, the
contention of learned counsel for Insurance
Company that the driver was not holding
valid and effective driving licence cannot
be accepted.
62 INDIAN LAW REPORTS ALLAHABAD SERIES

29. The evidence on record on the
contrary
proved
other
way.
The
document/report was prepared by private
agency and on one was examined on their
part. The licencing authority was not
examined by the Insurance Company. The
submission that they were not permitted to
examine them is also absent. There was no
application filed by them for examining the
author of the report dated 9.2.2017. Even if
the said document was not there, the
document produced by the Insurance
Company of a private agency showed that
the driver was having driving licence. He
was having a transport vehicle licence
which is even present in the record
produced by the Insurance Company itself.

30. While considering the case of the
Insurance Company, can it be said that the
driver did not have valid driving licence?
This question has to be answered in favour
of the claimants and owner. We are
fortified in our view by the latest decision
of the Apex Court in Nirmala Kothari Vs.
United India Insurance Co. Ltd., (2020)
4 SCC 49.

31. Further, this aspect also goes against
the Insurance Company that the Insurance
Company has not examined any person so as
to prove that the report of the R.T.O. is
vitiated. We are even supported in our view
by the decision of this Court in Oriental
Insurance Company Limited Vs. Poonam
Kesarwani and others, 2008 LawSuit (All)
1557, where in a similar situation converse
view then that contended by Sri K.S. Amist is
taken. Reliance can also be placed on the
finding of the Tribunal which unless proved
to the contrary should not be easily interfered
with. Further, the owner of the vehicle was
satisfied and it was proved that he has taken
all care and caution that vehicle was being
driven by a person who was authorised to
drive the same which is even apparent from
the fact that the owner has gone to the extent
of producing evidence so as to bring home
the fact that there was no breach of policy
condition.

32. In that view of the matter, on the
facts and the law, it cannot be said that the
owner has committed breach of policy
conditions.

33. This takes us to the issue of
compensation which has aggrieved the
claimants and the Insurance Company.

Compensation :

34. As far as age and profession of the
deceased are concerned, he was 28 years of
age and was an Engineering Graduate,
Contractor/Supplier
in
U.P.
Power
Corporation and was running Electrics Tools
Manufacturing Company. The age of his
widow was 24 years and parents were 54 and
51 years of age respectively at the time of
death of their son. These facts are not in
dispute.

35. Learned counsel for the claimants
has contended that the Tribunal has erred in
not granting future loss of income, filial
consortium. It is also submitted that the
Tribunal has not granted proper amount
under the head of non pecuniary damages
to the widow who became widow at the age
of 24 and who has not re-married.

36. It is also submitted that the
interest awarded by the Tribunal is on the
lower and as the legal heirs are highly
educated persons, the amount may not be
kept in Fixed Deposit.

37. As against this, the Insurance
Company has also felt aggrieved and has
5 All. National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal & Ors.
63
challenged the compensation and has relied
on the decisions of the Apex Court in Civil
Appeal No.2836 of 2015 (Shashikala and
others Vs. Gangalakshmamma and Anr.)
decided on 23.3.2015, V. Subbalakshmi
and others Vs. S. Lakshmi and Anr.
(2008) 4 SCC 224 and Sangita Arya and
others Vs. Oriental Insurance Co. Ltd.
and others, (2020) 5 SCC 224.

38. On considering the facts and the
decisions cited by Sri K.S. Amist, learned
counsel for Insurance Company, one thing
is clear that even in the decision cited by
Sri Amist, the compensation has been
decided on the basis of Income Tax Return
but which has to be relied has to be
considered. In this case, just prior to the
death of the deceased, his Income Tax
Return for last three years has been
considered by the Tribunal but his income
has been taken for the period just preceding
his death namely for the year of death.

39. It is submitted by Sri Amist that
income at the time of death must be
considered and that he was not entitled to
any future loss of income.