# The New India Assurance Co. Ltd v. Ran Vijay Singh & Anr

- **Citation:** (2024) 1 ILRA 490
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-24
- **Case number:** First Appeal From Order No. 4163 of 2011
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-ran-vijay-singh-anr-50930
- **Pages:** 8

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Sections 66 & 170 - On 31.12.2008, claimant,
while jogging with other person, hit by school
bus which was driven rashly, sustaining multiple
fractures - B.Sc. graduate (2007), earning
through
milk
supply
and
preparing
for
competitive exams - FIR lodged by claimant's
father - Tribunal framed five issues - Issues 1 to
5 decided in favour of claimant, holding no
contributory negligence on his part - On Issue 6,
Tribunal awarded Rs.5,34,048/- with 6% simple
interest per annum as compensation - Appeal
raises two issues i.e. whether school bus is
exempt from permit requirement rendering
insurer liable to indemnify, and whether driver
hold valid licence on date of accident - As
per National Insurance Co. Ltd. (infra), use of
transport
vehicle
without
permit
absolves
insurer, but pay and recover principle applies to
safeguard claimant - Tribunal erred in holding
school bus owned by educational institution
required no permit - Tribunal wrongly decided
Issue No.4 without any proof of driver's licence -
No copy of driving licence held by driver of
offending bus was filed either by claimant or
owner - Despite absence of driver's licence on
record, claimant cannot be left to pursue
recovery from owners alone - Thus, Claimant
will first recover compensation from insurer, who
may thereafter recover amount from owner and
driver, jointly and severally. (Para 2, 12, 15, 24,
25)

Writ petition partly allowed. (E-13)

List of Cases cited:

## Text

490 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 1 ILRA 490
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 4163 of 2011

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Ran Vijay Singh & Anr. ...Respondents

Counsel for the Appellant:
Sri Vinod Swarup, Sri Kuldip Shanker Amist

Counsel for the Respondents:
Sri Vidya Kant Shukla, Sri P.K. Sinha, Sri Vidya
Kant Shukla, Sri Utkarsh Pandey

Civil Law - Motor Vehicles Act, 1988 -
Sections 66 & 170 - On 31.12.2008, claimant,
while jogging with other person, hit by school
bus which was driven rashly, sustaining multiple
fractures - B.Sc. graduate (2007), earning
through
milk
supply
and
preparing
for
competitive exams - FIR lodged by claimant's
father - Tribunal framed five issues - Issues 1 to
5 decided in favour of claimant, holding no
contributory negligence on his part - On Issue 6,
Tribunal awarded Rs.5,34,048/- with 6% simple
interest per annum as compensation - Appeal
raises two issues i.e. whether school bus is
exempt from permit requirement rendering
insurer liable to indemnify, and whether driver
hold valid licence on date of accident - As
per National Insurance Co. Ltd. (infra), use of
transport
vehicle
without
permit
absolves
insurer, but pay and recover principle applies to
safeguard claimant - Tribunal erred in holding
school bus owned by educational institution
required no permit - Tribunal wrongly decided
Issue No.4 without any proof of driver's licence -
No copy of driving licence held by driver of
offending bus was filed either by claimant or
owner - Despite absence of driver's licence on
record, claimant cannot be left to pursue
recovery from owners alone - Thus, Claimant
will first recover compensation from insurer, who
may thereafter recover amount from owner and
driver, jointly and severally. (Para 2, 12, 15, 24,
25)

Writ petition partly allowed. (E-13)

List of Cases cited:

1. Catholic Diocese of Gorakhpur Education
Society, Gorakhpur & anr. Vs St. of U.P.& anr.,
(2001 ) 1 UPLBEC 915

2. Amrit Paul Singh & anr. Vs TATA AIG General
Insurance Co. Ltd. & ors. (2018) 7 SCC 558,
(Paras 18, 24)

3. Pappu & ors. Vs Vinod Kumar Lamba & anr.,
(2018) 3 SCC 208

4. National Insurance Co. Ltd. Vs Swaran Singh,
(2004) 3 SCC 297

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the Insurance
Company, arising out of a judgment and
award passed by Mr. Arun Prakash, the
Motor
Accident
Claims
Tribunal/
Additional District Judge, Court No.2,
Kanpur Nagar in Claim Petition No.575 of
2009, dated 14.09.2011, partly allowing the
claim petition.

2. The facts giving rise to the motor
accident claim, subject matter of this
appeal, are:

On December, the 31st, 2008
between 6:00-7:00 in the morning hours,
Ran Vijay Singh, the claimant was jogging
down
the
Ramaipur
Bharu
Shahpur
Majhawan Road. He was jogging on the
side of the road. He was accompanied by
Vinod Singh, a native of his village. A
school bus, bearing Registration No. UP53T-3894 approached from the Ramaipur
side, driven at a high speed and negligently.
The bus hit the claimant, leading him to
1 All. The New India Assurance Co. Ltd. Vs. Ran Vijay Singh & Anr.
491
sustain multiple fractures to his right lower
limb, besides injury to other parts of his
body. According to the claimant, he had
passed his B.Sc. Examination in the year
2007,
but
being
unemployed,
had
purchased milch cattle and was into the
business of supplying milk. Apart from
earning his livelihood this way, he would
prepare to write various competitive
examinations, leading to a possible
employment.

3. After the accident, the claimant
was taken to the Primary Health Centre
Bidhnoo. Since his condition was serious,
he was referred to the Regency Hospital,
where he was admitted on 04.01.2009.
After discharge, he was treated as an
outdoor patient by Dr. Nadeem Faruqui
for a few months. The claimant says that
he has become handicapped because of
the injury to his right lower limb. He has
become non-ambulatory and cannot move
about. His business of supplying milk is
ruined. He cannot look after his milch
cattle nor can he go to Ramaipur or the
town to sell milk. Before the accident, he
had an income of Rs.9000/- per mensem.
For the purpose of treatment, besides
whatever it involved in running about and
eating a nourishing diet, he had to spend
a sum of Rs.2 lacs approximately. The
physical handicap, that has followed the
accident, has given him extreme mental
pain, besides physical, which are life
long. It is impossible to compensate the
injury.

4. An FIR regarding the accident was
got lodged by the claimant's father at P.S.
Bidhnoo. This claim petition was instituted
by Ran Vijay Singh before the Motor
Accident Claims Tribunal/ The District
Judge on 20.05.2009 and assigned to the
Additional District Judge, Court No.2,
Kanpur Nagar on 21.05.2009. Ran Vijay
Singh, the sole claimant, who is respondent
No.1 to this appeal, shall hereinafter be
called 'the claimant'. Param Hans Ram
Mangal Das Inter College, Sawayajpur,
Narwal, District Kanpur Nagar, who are
owners of the offending bus, were arrayed
as opposite party No.1 to the claim petition
and are impleaded as respondent No.2 to
this appeal. They shall hereinafter be
referred to as 'the owners'.

5. The offending vehicle was insured
with the New India Assurance Company
Limited, Civil Lines, Kanpur Nagar. They
were arrayed as opposite party No.2 to the
claim petition and are the appellants here.
The
appellant,
Insurance
Company
aforesaid, shall hereinafter be called 'the
insurers'.

6. A written statement was filed on
behalf the owners on 25.11.2009, signed
and verified by one Santosh Kumar
Dwivedi, a person authorized on behalf of
the owners to sign and verify pleadings.
The owners generally denied the claimant's
case and pleaded that the accident never
happened. It was said that for the said
reason, the income, dependency and other
facts are all irrelevant and set up to
establish a hefty claim. The owners also
denied the registration of any criminal case
against the bus driver. They also pleaded
that even if it has been registered with the
Police by resort to manipulation, the same
is without basis. The owners also denied
that their bus ever plied on the route
indicated or the place where the accident
occurred. It was never involved in the
accident in question. Their further case is
that the offending bus is insured with the
insurers
under
Policy
No.
420202/31/08/02/00000030, effective from
08.04.2008 to 07.04.2009.
492 INDIAN LAW REPORTS ALLAHABAD SERIES

7. In the additional pleas, it is averred
by the owners that the offending bus was
being driven by a driver possessed of a
valid and effective driving licence at the
relevant time and date. Therefore, if there is
any claim provable against the owners, it
has to be met by the insurers. There is a
particular plea in Paragraph No.11 to the
effect that the offending bus is owned by a
recognized institution and a registered
society.
It
is
not
involved
in
any
commercial activity. It ferries poor girl
students to and fro from the college. It was
also pleaded in the alternative that the
claimant has put forward an exaggerated
and inflated claim relating to his medical
treatment, and, on that ground alone, the
claim petition deserves to be dismissed. It
is
pleaded
that
the
claimant
has
misdescribed his injuries and incorrectly
alleged the amount of expenses incurred in
his treatment. According to the owners, all
these incorrect facts have been put forth to
fetch a higher compensation.

8. Another written statement was filed
on behalf of the insurers on 15.05.2010.
The insurers have generally denied the
claimant's case saying that the burden of
proof rests on his shoulders to establish.
The claimant's income being a sum of
Rs.9000/- per mensem has been denied
with a plea that there is no tangible
evidence to prove it. It is also pleaded that
the claimant's parents are said to be his
dependents, but there is no proof that
indeed they are so. It is averred that the
claimant's right lower limb is said to have
been fractured at three sites, but no positive
proof about the fact has been offered by the
claimant. It is also said by the insurers that
the claimant alleges that he was treated by
a doctor, but the identity of the doctor has
not been revealed. In the absence of
positive proof about it, the claim is not
tenable. The insurers also say that though
the identity of the owners has been
disclosed, but in the absence of the
insurance certificate relating to the bus
being produced, the insurers do not accept
their liability on the policy. The burden to
prove the policy lies on the owners and the
claimant. The claim is said to be one that is
exaggerated and inflated. The claimant's
story has been castigated as a concoction
and one that is unbelievable.

9. In the additional pleas, it is averred that
no cause of action arose to the claimant to
institute the claim petition. The insurers
never had any information about the
accident, because neither the owners nor
the claimant intimated the insurers about it.
It is pleaded that bearing in mind the
description of the incident in the claim, it is
evident that the entire case is concocted and
founded on falsehood. The owners have
violated the conditions of the insurance
policy. The first breach pointed out is that
the insurers were never intimated about the
accident, whereas in accordance with the
rules and the insurance policy, the Branch
that had issued it, had to be intimated of the
accident. It is also pleaded that the claimant
and the owners appeared to have entered
into a conspiracy, where the insurers would
not bear responsibility to compensate. A
plea is also raised that the insurers are
entitled to the protection of Section 170 of
the Motor Vehicles Act, 1988 (for short,
'the Act of 1988'). The insurers' further case
is that it was the burden of the claimant as
well as the owners to prove that on the date
and time of the accident, the offending bus
was validly registered, had a valid permit, a
valid fitness certificate and other valid and
effective
documents
permitting
it
to
operate. The insurers have pleaded that the
burden to produce the said documents lay
on the claimant and the owners. If the
1 All. The New India Assurance Co. Ltd. Vs. Ran Vijay Singh & Anr.
493
owners and the claimant could not
discharge that burden, or the papers
produced, not found valid, the insurers
would have no liability to satisfy the award.
It is also pleaded that if the owners or the
claimant establish the existence of a valid
insurance policy, the owners would still
have to show that he has complied with the
provisions of Section 64-VB of the
Insurance Act, 1938, and if they fail, the
insurers would not be liable. There is also a
plea that the accident happened because of
the claimant's negligence. The claim
petition is said to be bad for non-joinder,
because the driver of the offending bus was
not impleaded.

10. On the pleadings of parties, the
Tribunal framed the following issues
(translated into English from Hindi):

"1. Whether on 31st December,
2008 at about 6:00-7:00 a.m., Ran Vijay
Singh, who was jogging on the RamaipurBharu-Shahpur Majhawan Road, was hit
from rear by the driver of bus No. UP-53T3894, driving it at a high speed and
negligently, in consequence of which Ran
Vijay sustained grievous injuries?

2. Whether on the date and time
of the said accident, the aforesaid bus was
insured with opposite party No.2, Insurance
Company?

3. Whether on the date of the said
accident, the driver of the aforesaid bus
held a permit and fitness certificate?

4. Whether the driver of the
aforesaid bus, on the date of the accident,
held a valid and effective driving licence?

5. Whether the accident was the
result of contributory negligence?

6. Whether
the
claimant
is
entitled to any compensation? If yes, how
much and from which party?"

11. In support of his case, the
claimant examined himself as PW-1 and
Surendra Singh Chauhan as PW-2. The
insurers examined Prateek Kumar Sinha as
DW-1. The claimant filed through a list of
documents Paper No.7-Ga1, a copy of the
FIR and through list 11-Ga1, a copy of the
insurance policy. He filed through another
list bearing Paper No.15-Ga1, medical
prescriptions of medicines bearing Page
Nos.1 to 72. Another list 41-Ga carrying
seven papers was filed on behalf of the
claimant, which include copies of the
charge-sheet,
the
site-plan,
receipts
evidencing purchase of buffaloes dated
07.08.2007,
14.08.2007,
14.08.2007,
14.08.2007
and
14.08.2007.
Through
another list Paper No.93-Ga1, another four
documents were filed.

12. Issue No.1 was decided in favour
of the claimant and against the owners and
the insurers. Issue No.2 was decided in
favour of the claimant and against the
insurers. Issue No.3 was also decided in
favour of the claimant and the owners and
against the insurers. Issue No.4 was also
decided in favour of the claimant and the
owners and against the insurers. Issue No.5
was decided in favour of the claimant and
against the owners and the insurers, holding
that there was no contributory negligence
by the claimant. In deciding Issue No.6, the
Tribunal held the claimant entitled to a
compensation in the sum of Rs.5,34,048/-,
and passed an award for the said sum of
money, carrying simple interest @ 6% per
annum.

13. Aggrieved by the impugned
award, the insurers have preferred the
present appeal.

14. Heard Mr. K.S. Amist, learned
Counsel for the insurers, Mr. Utkarsh
494 INDIAN LAW REPORTS ALLAHABAD SERIES
Pandey, Advocate holding brief of Mr. P.K.
Sinha, learned Counsel for the owners and
Mr. Vidya Kant Shukla, learned Counsel
for the claimant. Records have been
perused.

15. There are two issues alone that
arise for consideration in this appeal. The
first is if the Tribunal was right in holding
that a school bus is exempt from the
requirement of holding a permit and the
insurers would be liable to indemnify. The
other is if the finding of the Tribunal
regarding the driver holding a valid and
effective driving licence on the date of the
accident is correct.

16. It is argued by the learned
Counsel for the insurers that the Tribunal
while passing the impugned award relied
on the authority of a Bench decision of this
Court in Catholic Diocese of Gorakhpur
Education
Society,
Gorakhpur
and
another vs. State of Uttar Pradesh and
another, (2001 ) 1 UPLBEC 915, while
deciding the twin issues against the
insurers, relating to the validity of the
driving licence and the non-requirement of
holding a permit by a school bus. Insofar as
the requirement of holding a permit is
concerned, the learned Counsel for the
insurers submits that under Section 66 (1)
of the Act of 1988, no transport vehicle is
permitted to ply without holding a permit
issued by the competent authority. He has,
particularly, emphasized that Clause (h) of
Section 66(3) of the Act last mentioned,
granting exemption from holding a permit
to
transport
vehicles
belonging
to
educational institutions recognized by the
Central or State Government, and societies
registered under the Societies Registration
Act, 1860, or under any other law being
used exclusively for their own purpose, was
omitted vide Act No.27 of 2000 w.e.f.
11.08.2000. The accident here took place
on 31.12.2008. Therefore, there was no
exemption in favour of an educational
institution or a registered society in the
matter of their vehicle's obligation to ply
without a valid permit issued by the
competent authority.

17. It is next submitted that according
to the owners' case, they were not using the
vehicle for their own use, but had given it
on hire to a charitable society for ferrying
students. The submission is that even if
Clause (h) of Section 66(3) of the Act of
1988 were not omitted, the exemption
under the Act would not obtain. The
Tribunal, according to the learned Counsel
for the insurers, decided the issue in
manifest error against the insurers. In
support of his contention that the school
bus in question was obliged to operate on a
permit issued by the competent authority
under the Act of 1988, the learned Counsel
for the insurers has reposed faith in the
authority of the Supreme Court in Amrit
Paul Singh and another v. TATA AIG
General Insurance Co. Ltd. and others,
(2018) 7 SCC 558.

18. So far as the other issue about the
driver of the offending vehicle operating it
without a valid licence is concerned, it is
pointed out that the decision of the Tribunal
placing reliance on Catholic Diocese of
Gorakhpur Education Society (supra) is
misplaced because the said decision is an
authority on the issue of permit and not
about the requirement of holding a valid
driving licence. It is argued that it is
apparent from the award that no driving
licence was produced, and, according to the
law laid down by the Supreme Court in
Pappu and others v. Vinod Kumar
Lamba and another, (2018) 3 SCC 208,
the initial burden would be upon the owner
1 All. The New India Assurance Co. Ltd. Vs. Ran Vijay Singh & Anr.
495
and the driver to produce the driving
licence, so that the insurers may verify the
same, and if no driving licence is filed, the
insurers would not be liable. In that case,
they would be given a right to pay and
recover. The learned Counsel for the
insurers on both counts has vehemently
argued for a right to pay and recover.

19. The learned Counsel for the
claimant and the owners have supported the
impugned judgment and award.

20. So far as the requirement for a bus
owned by an educational institution to ply
without a permit is concerned, no doubt the
Bench decision of this Court in Catholic
Diocese of Gorakhpur Education Society
is a direct authority in the owners' support,
but the question is if the statute, on the foot
of which the Division Bench opined in
Catholic
Diocese
of
Gorakhpur
Education Society, has changed altogether
so as to remove the basis of the decision.
This Court notices that vide Section 4 of
Act No.27 of 2000, which came into force
on 11.08.2000, Clause (h) of Section 66(3)
of the Act of 1988, was omitted. In order to
understand the import of Clause (h) of subSection (3) of Section 66 of the Act of
1988, one has to look to the said provision
as it stood before Clause (h) was omitted
by Act No.27 of 2000. The unamended
statute (relevant part) reads:

"66. Necessity for permits.-(1)
No owner of a motor vehicle shall use or
permit the use of the vehicle as a transport
vehicle in any public place whether or not
such vehicle is actually carrying any
passengers or goods save in accordance
with the conditions of a permit granted or
countersigned by a Regional or State
Transport Authority or any prescribed
authority authorising him the use of the
vehicle in that place in the manner in which
the vehicle is being used:

Provided that a stage carriage
permit shall, subject to any conditions that
may be specified in the permit, authorise
the use of the vehicle as a contract carriage:

Provided further that a stage
carriage permit may, subject to any
conditions that may be specified in the
permit, authorise the use of the vehicle as a
goods
carriage
either
when
carrying
passengers or not:

Provided also that a goods
carriage permit shall, subject to any
conditions that may be specified in the
permit, authorise the holder to use the
vehicle for the carriage of goods for or in
connection with a trade or business carried
on by him.

Provided also that where a
transport vehicle has been issued any
permit or permits, as well as a licence
under this Act, such vehicle may be used
either under the permit, or permits, so
issued to it, or under such licence, at the
discretion of the vehicle owner.

(2) x x x

(3) The provisions of sub-section
(1) shall not apply-

(a) to (g) x x x x

(h)* "to any transport vehicle
owned by, and used solely for the purposes
of, any educational institution which is
recognised
by
the
Central
or
State
Government or whose managing committee
is a society registered under the Societies
Registration Act, 1860 (21 of 1860) or
under any law corresponding to that Act in
force in any part of India;".

*[Omitted by Act 27 of 2000, S. 4
(w.e.f. 11-8-2000)]"

21. There is no doubt that the
Division Bench of this Court in deciding
Catholic
Diocese
of
Gorakhpur
496 INDIAN LAW REPORTS ALLAHABAD SERIES
Education Society did so in a very
different statutory context. The exemption
that was available to a transport vehicle
owned by and used solely for the purpose
of an educational institution recognised by
the Central or the State Government etc.,
was one under the statute that ceased to
exist after Clause (h) was omitted vide Act
No.27 of 2007. Thus, the very basis of the
decision
in
Catholic
Diocese
of
Gorakhpur Education Society stands
effaced. Here, the accident happened
admittedly on 31.12.2008, much after the
statute was amended. Therefore, in our
opinion, there was absolutely no basis for
the Tribunal to have followed the Bench
decision of this Court in Catholic Diocese
of Gorakhpur Education Society and held
against the insurers on this point.

22. The holding in Amrit Paul Singh
(supra) that plying a transport vehicle
without a permit amounts to a fundamental
breach of the policy conditions needs to be
noticed. It was held in Amrit Paul Singh:

"18. The learned counsel for the
appellants would submit that there has been
no fundamental breach of the policy
conditions. In this context, we may
profitably refer to the decision in Challa
Upendra Rao [National Insurance Co. Ltd.
v. Challa Upendra Rao, (2004) 8 SCC 517 :
2005 SCC (Cri) 357] wherein a two-Judge
Bench squarely dealt with the absence of a
permit and ruled that plying a vehicle
without a permit is an infraction and the
insurer is not liable."

23. But, in Amrit Paul Singh, it has
been further observed:

"24. In the case at hand, it is
clearly demonstrable from the materials
brought on record that the vehicle at the time
of the accident did not have a permit. The
appellants had taken the stand that the vehicle
was not involved in the accident. That apart,
they had not stated whether the vehicle had
temporary permit or any other kind of permit.
The exceptions that have been carved out
under Section 66 of the Act, needless to
emphasise, are to be pleaded and proved. The
exceptions cannot be taken aid of in the
course of an argument to seek absolution
from liability. Use of a vehicle in a public
place without a permit is a fundamental
statutory infraction. We are disposed to think
so in view of the series of exceptions carved
out in Section 66. The said situations cannot
be equated with absence of licence or a fake
licence or a licence for different kind of
vehicle, or, for that matter, violation of a
condition of carrying more number of
passengers. Therefore, the principles laid
down in Swaran Singh [National Insurance
Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297
: 2004 SCC (Cri) 733] and Lakhmi Chand
[Lakhmi
Chand
v.
Reliance
General
Insurance, (2016) 3 SCC 100 : (2016) 2 SCC
(Civ) 45] in that regard would not be
applicable to the case at hand. That apart, the
insurer had taken the plea that the vehicle in
question had no permit. It does not require
the wisdom of the "Tripitaka", that the
existence of a permit of any nature is a matter
of documentary evidence. Nothing has been
brought on record by the insured to prove that
he had a permit of the vehicle. In such a
situation, the onus cannot be cast on the
insurer. Therefore, the Tribunal as well as the
High Court had directed that the insurer was
required to pay the compensation amount to
the
claimants
with
interest
with
the
stipulation that the insurer shall be entitled to
recover the same from the owner and the
driver. The said directions are in consonance
with the principles stated in Swaran Singh
[National Insurance Co. Ltd. v. Swaran
Singh, (2004) 3 SCC 297 : 2004 SCC (Cri)
1 All. Devendra Pratap Yadav Vs. State of U.P. & Ors.
497
733] and other cases pertaining to pay and
recover principle."

24. Therefore, while plying a transport
vehicle without a permit indeed discharges
the insurers of their obligation, following the
decision of the Supreme Court in National
Insurance Co. Ltd. v. Swaran Singh,
(2004) 3 SCC 297. The 'pay and recover'
principle, however, ought to be invoked in
order to safeguard interest of the unwary
claimant and extend him the benefit of the
social welfare legislation that the Act of 1988
is. This Court is, therefore, of opinion that the
Tribunal was in manifest error, in deciding
Issue No.3 and holding that there was no
requirement for a permit to be held by the
offending bus, as it was owned by an
educational institution.

25. The other finding by the Tribunal on
Issue No.4, which is about the fact if the
driver held a valid and effective driving
licence. What this Court notices is that the
Tribunal has virtually reproduced its finding
on Issue No.3, in deciding Issue No.4. Issue
No.4 is about the validity of the driving
licence, if any, held by the driver of the
offending vehicle on the date and time of the
accident. However, the Tribunal decided the
said issue against the insurers and in favour
of the claimant and the owners, relying on the
authority of a Bench decision of this Court in
Catholic Diocese of Gorakhpur Education
Society. The said authority had nothing to do
with the issue of a valid driving licence.
Apparently, the Tribunal went astray and
without application of mind decided Issue
No.4. There is nothing on record to show that
a copy of the driving licence held by the
driver of the offending bus was ever filed,
either by the claimant or the owners. In the
circumstances, following the principle laid
down by the Supreme Court in Pappu
(supra), the insurers cannot be held bound by
terms of the policy. Of course, the omission
to discharge their burden about bringing on
record a photostat copy or a copy of the
driving licence, the claimant would not be left
in the uncertain alley of pursuing the owners
alone for recovery of compensation. He will
have the right to recover from the insurers in
the first instance and the insurers the right to
pay and recover; pay the claimant and
recover from the owners and the driver,
jointly and severally. It is held, accordingly.

26. No other ground or point was
pressed by either side.

27. In the result, the appeal succeeds
and is allowed in part. The impugned award
passed by the Tribunal is modified and it is
ordered that the compensation awarded by
the Tribunal shall, in the first instance, be
recoverable from the insurers by the claimant,
who will then be at liberty to recover it from
the owners and the driver, jointly and
severally,
by
making
a
miscellaneous
application to the Tribunal for the purpose.
The insurers would not be required to bring
any independent action to recover.

28. There shall be no order as to costs.
----------
(2024) 1 ILRA 497
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Habeas Corpus Writ Petition No. 131 of 2023

Devendra Pratap Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents