# The New India Assurance Co. Ltd v. Smt. Maya Devi & Ors

- **Citation:** (2019) 2 ILRA 1307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** FAFO No. 298 of 2006
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-ltd-v-smt-maya-devi-ors-44586
- **Pages:** 13

## Headnote

Motor Vehicles Act 1988 - Section 15 (1)
- Driver not having valid licence on the
date of accident - Insurer cannot be
fastened with the liability of paying
compensation.

Tribunal held that since prior to accident and
after the accident the driver had valid and
effective driving licence therefore it would be
treated that he was having the valid and
effective driving licence on the date of
accident also

Held:- Driver of the tractor not having a valid
and effective driving licence on the date of
accident so there was a breach of terms and
conditions of policy, therefore, the Insurance
Company cannot be fastened with the liability
of paying compensation on behalf of owner of
the vehicle - Compensation has to be paid by
the owner of tractor - Insurance Company to
make the payment of the compensation to the
claimants with liberty to recover the same
from the owner of the vehicle. (Para 24 & 30)

First Appeal From Order Partly Allowed
(E-5)
List of cases cited: -
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
1.Oriental Insurance Company Ltd. Vs Shri
Nanjappan & ors. (2004) 13 SCC 224 (relied
upon)

## Text

_Characters 0–39,705 of 43,689. This is a partial read: ask again with offset=39705 for what follows._

2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1307
and the case has been taken up for
consideration on merit and was decided
by
the
Prescribed
Authority
on
16.04.2016. Therefore, the 1st proviso to
Section 21(1) of the Act stood complied
with.
Question
No.(a)
is
answered
accordingly.

(ii) requirement of six months
notice under the 1st proviso to Section 21(1)
of U.P. Act No.13 of 1972, is mandatory but it
can be waived by the tenant. These
proceedings under Section 21(1)(a) of the Act
are neither of public nature nor it involves any
public interest. It would be between landlord
and tenant. Only personal interest of landlord
on the one hand and the tenant on the other
hand get clashed and called for adjudication
by the Prescribed Authority. Six months'
breathing time is given to the tenant after
service of notice to enable him to put his
house in order and to get the matter settled
amicably or to get alternative accommodation
if the tenant realises that the landlord has a
good case. This type of protection to the
tenant would naturally be personal to him and
could be waived.

(iii) In the present set of facts the
defendant-tenant/petitioner neither raised any
objection nor filed an application under Order
VII Rule 11(d) of the Civil Procedure Code
for dismissal of the release application on the
ground that it is premature or barred by the
proviso to Section 21(a) of the Act. This
clearly established that the defendanttenant/petitioner has waived the protection of
six months' notice as provided in the proviso
to Section 21(1) of the Act.

21. For all the reasons aforestated,
the writ petition is dismissed.
----------

(2019)10ILR A 1307

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

FAFO No. 298 of 2006

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Maya Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Jitendra Narain Mishra

Counsel for the Respondents:
Sri R.A. Kanojia, Sri Amit Kumar Singh Bhadoria,
Sri Anshuman Patnaik, Sri R.A. Kanaujia, Sri Raj
Kumar Verma, Sri Rajendra Jaiswal, Sri
Shivendra Pratap Singh, Sri Subodh Awasthi

Motor Vehicles Act 1988 - Section 15 (1)
- Driver not having valid licence on the
date of accident - Insurer cannot be
fastened with the liability of paying
compensation.

Tribunal held that since prior to accident and
after the accident the driver had valid and
effective driving licence therefore it would be
treated that he was having the valid and
effective driving licence on the date of
accident also

Held:- Driver of the tractor not having a valid
and effective driving licence on the date of
accident so there was a breach of terms and
conditions of policy, therefore, the Insurance
Company cannot be fastened with the liability
of paying compensation on behalf of owner of
the vehicle - Compensation has to be paid by
the owner of tractor - Insurance Company to
make the payment of the compensation to the
claimants with liberty to recover the same
from the owner of the vehicle. (Para 24 & 30)

First Appeal From Order Partly Allowed
(E-5)
List of cases cited: -
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
1.Oriental Insurance Company Ltd. Vs Shri
Nanjappan & ors. (2004) 13 SCC 224 (relied
upon)
2. M.P. Electricity Board Vs Shail Kumari & ors.
(2002) 2 SCC 162
3. Oriental Insurance Company Ltd. Vs
Nathuni Prasad & anr. (2004) 1 T.A.C. (All.)
4. Ram Babu Tiwari Vs United India Insurance
Co. Ltd. & ors. (2008) 3 T.A.C. 769 (S.C.)
5. Ishwar Chandra & anr. Vs Oriental
Insurance Co. Ltd. & ors. (2007) 2 T.A.C. 393
(S.C.)
6. National Insurance Company Ltd. Vs
Vidhyadhar Mahariwala & ors. (2008) 12 SCC
701
7. New India Assurance Company Ltd. Vs Yadu
Sambhaji More (2011) 2 SCC 416 (2011) 99
AIC 135
8. Rita Devi Vs New India Assurance Co. Ltd.
(2000) 5 SCC 113
9. U.P.St. Road Transport Corporation & anr.
Vs Rajendra Kumar Gupta 7 ors.2012 SCC
Online All 994
10. Singh Ram Vs Nirmala & ors. (2018) 3 SCC
800
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Jitendra Narain
Mishra, learned counsel for the appellant
and Shri Shivendra Pratap Singh, learned
counsel for the respondent no.7. None
appeared for other respondents.

2. The instant appeal has been
preferred against the judgment and award
dated
11.11.2005,
passed
in
M.A.C.No.208 of 2000;Smt. Maya Devi
and others Versus The Harak Chand Flour
Mills and others by Motor Accident
Claims
Tribunal/Additional
District
Judge, Court No.3, Sitapur by which the
claim petition has been allowed and an
amount
of
Rs.2,95,000/-
alongwith
interest @ 6% per annum has been
directed to be paid by the appellant-New
Indian Assurance Company Limited.

3. Brief facts of the case are that the
deceased Sobaran Lal was working on the
post of Munim in M/s. Harak Chand Flour
Mills i.e. opposite party no.5. On
28.05.2000 at about 2.15 in the day he
was going on tractor No.USH-3956 on
bye-pass road in Police Station Ramkoat,
district Sitapur for the work of the Mill.
The Trolly No.USX-4189 attached with
the tractor touched the hanging electric
wire. Consequently the electric current
came down in the tractor and in the
accident the deceased Sobaran Lal died on
the spot. Therefore the claim petition was
filed claiming compensation.

4. The respondent no.1 i.e. the opposite
party no.5 herein (M/s.Harak Chand Flour
Mills) filed its written statement denying that the
deceased was working as Munim in the Mill and
stated that he was working as labour and getting
Rs.2000/- per month as salary. The respondent
no.1 also denied that it has any relation with the
tractor No.USH-3956. It was also stated that
Tribhuwan Lal Driver, loading the waste of the
mill on tractor trolly, was going from the back
gate to dispose it off. When the trolly was going
out from the back gate the live wire of 11000
k.w. which was hanging for the last many days,
touched the trolly and at that time Sobaran Lal
was sitting at the tractor trolly as labour. On
account of electric current he jumped but slipped
on the floor and died on the spot. It has denied
the negligence of the tractor driver and stated
that the tractor and trolly were ensured with the
New India Assurance Company Limited and it
is not liable for payment of any compensation.
Tribhuwan Lal, tractor driver had not filed any
written statement.
2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1309

5.

The
appellant-New
India
Assurance Company Ltd. denied the
accident and stated that there was no fault
of the tractor driver in the accident in
question and therefore it is not liable to
pay any compensation.

6. The Uttar Pradesh Power
Corporation had filed written statement
denying the accident and stated that under
the Motor Accident Claim Petition no
compensation can be awarded against it.
It was also stated that since the accident
had not occurred from its vehicle so no
cause of action has accrued against it
under the Motor Vehicles Act. It was also
stated that the electric wires were not
loose at the spot of accident and there was
no
negligence
of
the
electricity
department, therefore, it is not liable to
pay any compensation.

7. Considering the pleadings of the
parties four issues were framed. Smt.
Maya Devi, wife of the deceased as P.W.1
and Dhani Ram as P.W.2 were got
examined on behalf of opposite party
nos.1 to 4/claimants. A certified copy of
the General Diary, copy of the post
mortem report of deceased Sobaran Lal
and 7 photographs of the spot of accident
were filed by the respondents/claimants.
The opposite parties got examined the
tractor driver Tribhuwal Lal as O.P.W.1.
They had filed copy of the cover note of
Insurance Policy, driving licence of the
driver Tribhuwan Lal, photocopy of
certificate of tax of tractor and photocopy
of cover note of the Insurance Policy of
the tractor trolly, report of Inspector and
certificate of licensing authority.

8. After hearing the parties and
considering the material available on
record learned Tribunal allowed the claim
petition and awarded the amount as
aforesaid and directed to the appellant
Insurance
Company
to
pay
the
compensation. Hence the present appeal
has been filed.

9. Learned counsel for the appellant
had submitted that the accident in
question had occurred due to negligence
of the U.P. Power Corporation as the live
electric wires were hanging on the road,
therefore
the
appellant-Insurance
Company is not liable to pay the
compensation awarded by the Tribunal.
To buttress his arguments he submitted
that the P.W.2, the eye witness, has stated
in his evidence that the accident had
occurred as the hanging electric wires had
touched the tractor trolly. In the cross
examination he has stated that if the trolly
would have been of normal height the live
wires would not have touched the trolly.
The O.P.W.1 Tribhuwan Lal has also
stated in his evidence that the wires were
hanging so the trolly touched it. In his
cross examination he has stated that the
electric wires were hanging and if he
would have driven the tractor keeping it
left or right side, the accident could have
been saved, but there was no other way as
there were ditches on the road. The
learned Tribunal has recorded a finding in
regard to issue no.1 that if the tractor
driver would have driven the tractor
cautiously after seeing the electric wires
the accident could have been saved.
Therefore, the accident in question had
occurred due to hanging of the live
electric wires which was on account of
negligence of the electricity department
and therefore the U.P. Power Corporation
Ltd. is liable to pay the compensation. In
this regard learned counsel for the
appellant has relied on the judgment of
Hon'ble Apex Court in the case of M.P.
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
Electricity Board Versus Shail Kumari
and others;(2002) 2 SCC 162.

10. He further submitted that as per
the certificate issued by the licensing
authority Sitapur i.e. Paper No.60-Ga
tractor driver Tribhuwan Lal was having
the driving licence for driving the tractor
w.e.f. 22.12.1990 to 21.12.1995 and from
09.06.2000 to 08.06.2003. The accident in
question had occurred on 28.05.2000,
therefore, on the date of accident he was
not having valid and effective driving
licence, but the learned Tribunal on the
basis of the judgment of this court in the
case of Oriental Insurance Company
Ltd. Versus Nathuni Prasad and
another;2004(1) T.A.C. (All.) dealing
with the issue no.3 held that since prior to
accident and after the accident the driver
had valid and effective driving licence
therefore it would be treated that he was
having the valid and effective driving
licence on the date of accident also. The
learned
counsel
for
the
appellant
submitted that the finding recorded by the
learned
Tribunal
is
erroneous
and
perverse because the said judgment is not
applicable on the facts and circumstances
of the present case because there is a big
difference of about 5 years between the
validity of both the licences. Therefore,
the said judgment could not have been
applied in the present case. There was
violation of terms and conditions of the
Insurance Policy and it cannot be deemed
that he was having valid and effective
driving licence on the date of accident
only because he had obtained the driving
licence w.e.f. 09.06.2000 immediately
after the accident. In this regard learned
counsel for the appellant has relied on
Ram Babu Tiwari Versus United India
Insurance Co.Ltd. and others;2008(3)
T.A.C. 769 (S.C.), Ishwar Chandra and
others
Versus
Oriental
Insurance
Co.Ltd. and others;2007(2) T.A.C. 393
(S.C.)
and
National
Insurance
Company Limited Versus Vidhyadhar
Mahariwala and others;(2008) 12 SCC
701.

11. Lastly, learned counsel for the
appellant submitted that the deceased
Sobaran Lal was sitting on the tractor as a
gratuitous passenger which is apparent from
the evidence of P.W.2. He has stated in his
cross examination that at the time of
accident the deceased was sitting on the left
side of the driver. O.P.W.1; driver of the
tractor Tribhuwan Lal has also stated in his
cross examination that Sobaran Lal had
himself sat on the tractor. He was not asked
by him or owner of the Factory. But it has
not been considered by the learned Tribunal
while dealing with the issue no.2. However,
he fairly admitted that this plea was not
taken before the Tribunal but submitted that
under Section 168 of the Motor Vehicles
Act 1988 (here-in-after referred as the Act
of 1988) on receipt of an application for
compensation made under Section 167 the
Claims Tribunal is required to hold an
inquiry into the claim. The Claims Tribunal
has all the powers of the Civil Court under
Section 169 of the Act, therefore, if the
inquiry would have been held by the learned
Tribunal in accordance with law it would
have come out because there was evidence
to this effect.

12. On the basis of above learned
counsel for the appellant submitted that the
impugned judgment and award passed by
the learned Tribunal is not sustainable in the
eyes of law and is liable to be set aside and
the appeal is liable to be allowed.

13. Learned counsel for the
respondent no.7 submitted that the claim
2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1311
petition was filed under the Motor
Vehicles Act, 1988 before the Motor
Accident Claims Tribunal and no liability
can be fastened on the opposite party no.7
i.e. the U.P.Power Corporation Limited
under the Motor Vehicles Act, 1988. The
learned Tribunal has rightly allowed the
claim petition against the appellantInsurance Company in accordance with
law. There is no illegality or error in the
judgment and award passed by the learned
Tribunal. Therefore the appeal is liable to
be dismissed against the opposite party
no.7.

14.

I
have
considered
the
submissions of the learned counsel for the
parties and perused the record of FAFO as
well as the trial court.

15. The deceased Sobaran Lal was
going with the work of the Mill on
28.05.2000 at about 2.15 in the day from
tractor No.USH-3956 when the wires of
the electricity touched the trolly No.USX4189
attached
with
the
tractor.
Consequently electric current came down
into the tractor and the deceased died on
the spot. P.W.2, an eye witness has stated
in his evidence that the driver Tribuwan
Lal was driving the tractor rashly and
negligently and if he would have been
driving slowly and the wires tight, the
accident could have been saved. In his
cross examination he has stated that
angles of 4-5 fit height were installed in
the trolly above normal height and if
trolly would have been of the normal
height the electric wires would not have
touched it and the accident would not
have occurred. The O.P.W.1; Tribhuwan
Lal has stated in his cross examination
that he had not seen the electric wires
prior to accident. He has further stated in
his cross examination that if he would
have driven the tractor left or right the
accident would have saved but there was
no other way because there were ditches
on the road.

16. After considering the evidence and
material on record learned Tribunal has
recorded a categorical finding in regard to
issue no.1 that there is no fault of the
electricity department and if the tractor
driver would have driven the tractor
carefully and after seeing the electric wires
the accident would not have occurred.
Therefore the accident in question is the
outcome of the negligence of the tractor
driver in which the deceased Sobaran Lal
had died. Admittedly 4-5 fit heigh angles
were fitted with the trolly, therefore the
trolly was 4-5 fit higher than the height of
the trolly of normal height. A perusal of the
photographs filed by the respondentsclaimants also indicates that the angles of 45 fit height were fitted over normal height
of the trolly. In such a situation the tractor
driver was to be more careful while driving
the tractor. As per his statement he had not
seen the wires prior to the accident, on the
other hand he stated that if he would have
driven the tractor from left or right, the
accident could have been saved, so he must
have seen the wires before accident but he
has given contradictory statements to save
him. This court is in agreement with the
findings recorded by the learned Tribunal in
regard to issue no.1 on the basis of material
and the evidence on record. The learned
Tribunal has rightly held that there was no
fault of the electricity department in the
accident therefore the judgment relied by
the learned counsel for the appellant in this
regard is of no assistance to his case.

17. The petition for compensation
was filed under Section 163-A read with
Section 166 of the Motor Vehicles Act,
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
1988. Section 163-A provides that the
owner of the motor vehicle or the
authorized insurer shall be liable to pay in
the
case
of
death
or
permanent
disablement due to accident arising out of
the use of motor vehicle, compensation,
as indicated in the second schedule, to the
legal heirs or the victim, as the case may
be. Section 166 of the Act provides that
an application for compensation arising
out of an accident of the nature specified
in sub-section (1) of Section 165 may be
made by the persons mentioned under sub
clause (a) to (d). Section 165 provides that
the State Government may constitute the
Motor Accident Claims Tribunals for the
purpose of adjudicating upon the claims
for compensation in respect of accidents
involving the death of, or bodily injury to,
persons arising out of the use of the motor
vehicles, or damages to any property of a
third party so arising, or both. Therefore
the claims under the Motor Vehicles Act
can be filed before the Motor Accident
Claims Tribunal claiming compensation
in regard to death due to accident arising
out of the use of motor vehicle. Therefore
when
the
Tribunal
comes
to
the
conclusion that the accident had occurred
arising out of the use of motor vehicle, the
respondents-claimants are entitled for the
compensation under the Act.

18. The Hon'ble Apex Court
interpreted the words "accident arising out
of the use of a motor vehicle" in the case
of New India Assurance Company Ltd.
Versus Yadu Sambhaji More;(2011) 2
SCC 416; 2011 (99) AIC 135. The facts
of that case in brief were that a petrol
tanker was got hit by a truck due to which
petrol started leaking from the tanker. At
day break the local people started
collecting the petrol leaking out from the
tanker. In the melee the petrol caught fire
and there was a big explosion in which 46
persons lost their lives. The legal heirs
filed the claim petition. The owner and
insurer contested the claim petition on the
ground that the fire and the explosion
causing the death of those who had
assembled at the accident site could not
be said to be an accident arising out of the
use of a motor vehicle. The claims
Tribunal observed that the fire and the
explosion could not be said to be an
accident arising out of the use of the
tanker. Against the order of the Claims
Tribunal appeals were filed before the
High Court. The learned Single Judge of
the High Court allowed the appeal and
reversed the order passed by the Claims
Tribunal. Against the decision of the
Single Judge, the owner of the petrol
tanker and the insurance company filed a
Letters
Patent
Appeal
which
was
dismissed by the Division Bench of the
High Court. The owner of the petrol
tanker and the insurance company then
approached to the Hon'ble Apex Court
challenging the judgment and order of the
High Court. The S.L.P. was dismissed by
the Apex Court in view of the decision in
Shivaji Dayanu Patil Versus Tatschala
Uttam
More;1991(3)SCC
530.
The
Hon'ble Apex Court, after considering the
question as to whether the fire and
explosion of the petrol tanker in which
Deepak Uttam More lost his life could be
said to have resulted from an accident
arising out of the use of a motor vehicle
namely the petrol tanker, answered the
question in the affirmative, that is to say,
in favour of the claimant and against the
insurer.

19. The Hon'ble Apex Court, in the
case of Rita Devi Versus New India
Assurance Co. Ltd.;(2000) 5 SCC 113,
relying on interpretation of Section 92-A
2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1313
of the Motor Vehicles Act, 1939 in the
case of Shivaji Dayanu Patil Versus
Vatschala Uttam More;(1991) 3 SCC 530
held that the murder of the deceased was
due to an accident arising out of the use of
motor vehicle. The relevant paragraphs 16
to 18 are reproduced below:-

16. In the case of Shivaji
Dayanu
Patil
v.
Vatschala
Uttam
More[(1991) 3 SCC 530 : 1991 SCC (Cri)
865] this Court while pronouncing on the
interpretation of Section 92-A of the
Motor Vehicles Act, 1939 held as follows:
(SCC p. 532, para 12)

"... Section 92-A was in the
nature of a beneficial legislation enacted
with a view to confer the benefit of
expeditious payment of a limited amount
by way of compensation to the victims of
an accident arising out of the use of a
motor vehicle on the basis of no-fault
liability. In the matter of interpretation of
a beneficial legislation the approach of
the courts is to adopt a construction
which advances the beneficent purpose
underlying the enactment in preference to
a construction which tends to defeat that
purpose."

17. In that case in regard to the
contention of proximity between the
accident and the explosion that took place
this Court held: (SCC pp. 549-50, para
36)

"36. This would show that as
compared to the expression ''caused by',
the expression ''arising out of' has a wider
connotation. The expression ''caused by'
was used in Sections 95(1)(b)(i) and (ii)
and 96(2)(b)(ii) of the Act. In Section 92A, Parliament, however, chose to use the
expression
''arising
out
of'
which
indicates that for the purpose of awarding
compensation under Section 92-A, the
causal relationship between the use of the
motor vehicle and the accident resulting
in death or permanent disablement is not
required to be direct and proximate and it
can be less immediate. This would imply
that accident should be connected with
the use of the motor vehicle but the said
connection need not be direct and
immediate. This construction of the
expression ''arising out of the use of a
motor vehicle' in Section 92-A enlarges
the field of protection made available to
the victims of an accident and is in
consonance with the beneficial object
underlying the enactment."

18. In the instant case, as we
have noticed the facts, we have no
hesitation in coming to the conclusion
that the murder of the deceased (Dasarath
Singh) was due to an accident arising out
of the use of motor vehicle. Therefore, the
trial court rightly came to the conclusion
that the claimants were entitled for
compensation as claimed by them and the
High Court was wrong in coming to the
conclusion that the death of Dasarath
Singh was not caused by an accident
involving the use of motor vehicle."

20. A Division Bench of this court
in the case of U.P. State Road Transport
Corporation
and
another
Versus
Rajendra
Kumar
Gupta
and
others;2012 SCC OnLine All 994
considered the accident "arising out of the
use of a motor vehicle". The brief facts of
the said case are that the deceased
Vaibhav Gupta son of the claimant was
travelling from Jaunpur to Lucknow by
Bus no.UP-65-AR-1874 owned by U.P.
State Road Transport Corporation. The
deceased requested the bus driver to stop
the bus to attend the natures call. The bus
was stopped by the driver at a place where
a live high voltage electric wire was
hanging. While getting down from the
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
bus, the deceased got in touch with the
electric wire, fell down on the road and
died due to electric shock. The Motor
Accident
Claims
Tribunal
after
considering the evidence and material on
record came to the conclusion that the
deceased died due to negligence of the
driver of bus and passed the impugned
order. The U.P.S.R.TC. challenged the
order before this court. This court after
considering the several judgments of the
Hon'ble Apex court as well as the facts of
the case came to the conclusion that it
cannot be said that at the time of accident
the deceased was not using the motor
vehicle, or that the accident did not took
place, arising out of the use of the motor
vehicle and considering the other points
also dismissed the appeal.

21. The other submission of the
learned counsel for the appellant was that
the driver was not having the valid and
effective driving licence on the date of
accident therefore the insurance Company
is not liable to make payment of
compensation. In regard to issue no.3 the
learned Tribunal on the basis of a
certificate of the licensing authority
Sitapur has categorically recorded that the
tractor driver Tribhuwan Lal was having
driving licence w.e.f. 22.12.1990 to
21.12.1995 and w.e.f. 09.06.2000 to
08.06.2003
while
the
accident
had
occurred
on
28.05.2000,
therefore,
undisputably the driver Tribhuwan Lal
was not having valid and effective driving
licence on the date of accident. But on the
basis of the judgment of this court in the
case of Oriental Insurance Co.Ltd.
Versus Nathuni Prasad and another
(Supra) the learned Tribunal held that the
driver was having valid and effective
driving licence on the date of accident. In
the said case this court held that if the
driver had a valid licence and it was again
renewed in his favour, it shall be taken
that he was competent to drive the vehicle
and the claim petition cannot be dismissed
on this ground.

22. The Hon'ble Apex Court,
considering this issue, in the case of
Iswar Chandra and others Versus
Oriental Insurance Co.Ltd. and others
(Supra) and after considering Section
15(1) of the Act regarding renewal of
driving licence held that the accident took
place on 28th April, 1995 and as on the
said date, the renewal application had not
been filed, the driver, did not have a valid
licence on the date when the vehicle met
with the accident. The relevant paragraphs
7 to 10 are extracted below:-

"7. Section 15(1) of the Act and
the first proviso appended thereto reads
as under :

"15. Renewal of driving
licences. (1) Any licensing authority may,
on application made to it, renew a driving
licence issued under the provisions of this
Act with effect from the dale of its expiry:

Provided that in any case
where the application for the renewal of a
licence is made more than thirty days
after the dale of its expiry, the driving
licence shall be renewed with effect from
the date of its renewal:"

8. From a bare perusal of the
said provision, it would appear that the
licence is renewed in terms of the said Act
and the rules framed thereunder. The
proviso appended to Section 15(1) of the
Act in no uncertain terms states that
whereas the original licence granted
despite expiry remains valid for a period
of 30 days from the date of expiry, if any
application for renewal thereof is filed
thereafter, the same would be renewed
2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1315
from the date of its renewal. The accident
took place 28.04.1995. As on the said
date, the renewal application had not
been filed, the driver, did not have a valid
licence on the date when the vehicle met
with the accident.

9. In Swaran Singh (supra),
whereupon the learned counsel appearing
on behalf of the appellants relied upon, it
is stated :

"45. Thus, a person whose
licence is ordinarily renewed in terms of
the Motor Vehicles Act and the Rules
framed thereunder, despite the fact that
during the interregnum period, namely,
when the accident took place and the date
of expiry of the licence, he did not have a
valid licence, he could during the
prescribed period apply for renewal
thereof and could obtain the same
automatically without undergoing any
further test or without having been
declared unqualified therefor. Proviso
appended to Section 14 in unequivocal
terms states that the licence remains valid
for a period of thirty days from the day of
its expiry.

46. Section 15 of the Act does
not empower the authorities to reject an
application for renewal only on the
ground that there is a break in validity or
tenure of the driving licence has lapsed,
as in the meantime the provisions for
disqualification of the driver contained in
Sections 19, 20, 21, 22, 23 and 24 will not
be attracted, would indisputably confer a
right upon the person to get his driving
licence renewed. In that view of the
matter, he cannot be said to be delicensed
and the same shall remain valid for a
period of thirty days after its expiry."

10. This aspect of the matter is
now covered by a decision of this Court in
National Insurance Company v. Kusum
Rai & Others;(2006) 4 SCC 250:2006 (3)
T.A.C.1, wherein this Court referring to
Swaran Singh (supra), opined :

"14. This Court in Swaran
Singh clearly laid down that the liability
of the Insurance Company vis-a-vis the
owner would depend upon several factors.
The owner would be liable for payment of
compensation in a case where the driver
was not having a licence at all. It was the
obligation on the part of the owner to take
adequate care to see that the driver had
an appropriate licence to drive the
vehicle. The question as regards the
liability of the owner vis-a-vis the driver
being not possessed of a valid licence was
considered in Swaran Singh stating: (SCC
pp. 336-37, para 89)

89. Section 3of the Act
casts an obligation on a driver to hold an
effective driving licence for the type of
vehicle which he intends to drive. Section
10 of the Act enables the Central
Government to prescribe forms of driving
licences for various categories of vehicles
mentioned in sub-section (2) of the said
section. The various types of vehicles
described for which a driver may obtain a
licence for one or more of them are:

(a) motorcycle without gear,

(b) motorcycle with gear,

(c) invalid carriage,

(d) light motor vehicle,

(e) transport vehicle,

(f) road roller, and

(g) motor vehicle of other
specified description.

The definition clause in Section
2of the Act defines various categories of
vehicles which are covered in broad types
mentioned in sub-section (2) of Section
10. They are goods carriage, heavy goods
vehicle, heavy passenger motor vehicle,
invalid carriage, light motor vehicle,
maxi-cab, medium goods vehicle, medium
passenger motor vehicle, motor-cab,
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
motorcycle,
omnibus,
private
service
vehicle, semi-trailer, tourist vehicle, tractor,
trailer and transport vehicle. In claims for
compensation for accidents, various kinds
of breaches with regard to the conditions of
driving licences arise for consideration
before the Tribunal as a person possessing
a driving licence for motorcycle without
gear, [sic may be driving a vehicle] for
which he has no licence. Cases may also
arise where a holder of driving licence for
light motor vehicle is found to be driving a
maxi-cab, motor-cab or omnibus for which
he has no licence. In each case, on evidence
led before the Tribunal, a decision has to be
taken whether the fact of the driver
possessing licence for one type of vehicle
but found driving another type of vehicle,
was the main or contributory cause of
accident. If on facts, it is found that the
accident was caused solely because of some
other unforeseen or intervening causes like
mechanical failures and similar other
causes having no nexus with the driver not
possessing requisite type of licence, the
insurer will not be allowed to avoid its
liability merely for technical breach of
conditions concerning driving licence."

23. The aforesaid judgment has been
followed by the Hon'ble Apex Court in
the case of Ram Babu Tiwari Versus
United India Insurance Co.Ltd. and
others (Supra) and National Insurance
Company Limited Versus Vidhyadhar
Mahariwala and others (Supra). Similar
view has been taken by Hon'ble Apex
Court in the case of Singh Ram Versus
Nirmala and others;(2018) 3 SCC 800,
relevant paragraphs 7 and 8 of which are
extracted below:-

"7. In the present case it is
necessary to note, as observed by the
Tribunal, that the owner did not depose in
evidence and stayed away from the
witness box. He produced a licence which
was found to be fake. Another licence
which he sought to produce had already
expired before the accident and was not
renewed within the prescribed period. It
was renewed well after two years had
expired. The appellant as owner had
evidently failed to take reasonable care
[Proposition
(vii)
of
Swaran
Singh
[National Insurance Co. Ltd.v. Swaran
Singh, (2004) 3 SCC 297 : 2004 SCC
(Cri) 733] ] since he could not have been
unmindful of facts which were within his
knowledge.

8. In the circumstances, the
direction by the Tribunal, confirmed by
the High Court, to pay and recover cannot
be faulted. The appeal is, accordingly,
dismissed. There shall be no order as to
costs."

24. In view of above this court is of
the considered opinion that the driver
Tribhuwan Lal of the tractor, involved in
the accident, was not having a valid and
effective driving licence on the date of
accident on 28.05.2000, as such there was
breach of terms and conditions of policy.
Therefore, the findings recorded by the
learned Tribunal in regard to issue no.3
are perverse and erroneous and not
sustainable and are hereby set aside.

25. The last submission of learned
counsel for the appellant regarding sitting
of the deceased as gratuitous passenger on
the tractor, learned counsel for the
appellant himself has admitted that the
said plea was not taken before the
tribunal, therefore, once the said plea was
not taken before the tribunal, the same
could not have been considered by the
learned Tribunal. Now the question arises
as to whether the learned Tribunal has
2 All. The New India Assurance Co. Ltd. Vs Smt. Maya Devi & Ors.
1317
committed any illegality or error in not
considering it while holding inquiry in to
the claim as provided under Section 168
of the Act of 1988, exercising the powers
of the Civil Court under Section 169 of
the Act, 1988. Section 169 of the Act
provides the procedure and powers of
Claims Tribunal, which is extracted
below:-

"169. Procedure and powers
of Claims Tribunals.--

"(1) In holding any inquiry
under section 168, the Claims Tribunal
may, subject to any rules that may be
made in this behalf, follow such summary
procedure as it thinks fit.

(2) The Claims Tribunal shall
have all the powers of a Civil Court for
the purpose of taking evidence on oath
and of enforcing the attendance of
witnesses and of compelling the discovery
and
production
of
documents
and
material objects and for such other
purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a
Civil Court for all the purposes of section
195 and Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may
be made in this behalf, the Claims
Tribunal
may,
for
the purpose
of
adjudicating
upon
any
claim
for
compensation, choose one or more
persons possessing special knowledge of
and matter relevant to the inquiry to
assist it in holding the inquiry."

26. Section 169(1) of the Act of
1988 provides that in holding any inquiry
under section 168, the Claims Tribunal
may, subject to any Rules that may be
made in this behalf, follow such summary
procedure as it thinks fit. Sub Section (2)
of Section 169 provides that the claims
Tribunal shall have all the powers of a Civil
Court for the purpose as mentioned therein
and for all the purposes of section 195 and
Chapter XXVI of the Code of Criminal
Procedure, 1973. Sub-section (3) of Section
169 of the Act provides that subject to any
rules that may be made in this behalf, the
Claims Tribunal may, for the purpose of
adjudicating
upon
any
claim
for
compensation, choose one or more persons
possessing special knowledge of and matter
relevant to the inquiry to assist it in holding
the inquiry. The Tribunal has to follow the
summary procedure subject to the Rules
while holding the inquiry under Section 168
of the Act.

27. In exercise of powers conferred
under the Motor Vehicles Act 1988 the
Uttar Pradesh Motor Vehicles Rules, 1998
have been framed. Chapter IX of the
Rules deals with the Claims Tribunals.
Rule 204 provides the application for
compensation. Rule 209 provides that
after considering the application and the
written statements and oral statements of
the parties, the Claims Tribunal shall
proceed to frame the issues on which the
right decision of the claim appears to it to
depend. Rule 211 provides that after
framing the issues the Claims Tribunal
shall proceed to record evidence thereon
which each party may like to produce.
Rule 220 provides that the Claims
Tribunal in passing orders, shall record
concisely in judgment the findings on
each of the issues framed and the reasons
for such finding and make an award
specifying the amount of compensation to
be paid by the insurer or in the case of a
vehicle exempted under sub-section (2) or
(3) of Section 146 by the owner thereof
and shall also specify the person or
persons to whom compensation shall be
payable.
1318 INDIAN LAW REPORTS ALLAHABAD SERIES

28. In view of above, it is apparent
that the Claim petition is to be decided as
per the procedure prescribed under the
Rules. The issues are to be framed on the
pleadings of the parties to which right
decision of the claim appears to depend.
Therefore, the Claims Tribunal has to
decide the petition on the basis of the
pleadings. So far as the powers of Civil
Court conferred on the Claims Tribunal,
Rule 221 provides the provisions of the
Code of Civil Procedure 1908, which may
be applied to proceedings before the
Claims Tribunal, namely, Rules 9 to 13
and 15 to 30 of Order V; Order IX, Rule 3
to 10 of Order XIII, Rules 2 to 21 of
Order XVI; Order XVII; and Rules 1 to 3
of Order XXIII. None of the provisions
provide that the claims Tribunal would
make an inquiry beyond pleadings for the
right decision and award the just and
reasonable compensation. Therefore the
Claims Tribunal has to hold the inquiry
into the claim for determining just and
reasonable compensation on the basis of
pleadings and law.

29. The Insurance Company can
contest the claim arising out of the motor
accident on the grounds mentioned in
Section 149(2) of the Act of 1988, which
includes the breach of a specified condition
of the policy and a condition excluding
liability for injury caused. The plea of
gratuitous passenger is based on the terms
and conditions of the Insurance policy which
can be said to be a breach of the terms and
conditions of policy and if the same has not
been raised before the Tribunal and no issue
was framed in this regard, it cannot be said
that the learned Tribunal has committed any
error in not considering the same.

30. In view of the aforesaid facts
and circumstances since the driver of the
tractor involved in the accident was not
having a valid and effective driving
licence on the date of accident so there
was a breach of terms and conditions of
policy, therefore, the Insurance Company
cannot be fastened with the liability of
paying compensation on behalf of
owner of the vehicle. Therefore, this
court is of the considered opinion that
the compensation awarded by the
learned Tribunal has to be paid by the
owner of tractor no.USH-3956 and
trolly no.USX-4189 i.e. the respondent
no.5.