# The Oriental Insurance Co. Ltd v. Ramesh Chandra Nishra & Ors

- **Citation:** (2019) 4 ILRA 534
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** FAFO No. 2738 of 2011
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-ramesh-chandra-nishra-ors-45012
- **Pages:** 12

## Headnote

Act (59 of 1988) - Section 163A -
claimant not required to prove the
negligence of the offending vehicle - in
proceeding
u/s
163A
of
the
Act,
Insurance Company cannot raise any
defence of contributory negligence on
the part of the victim to counter a claim
for compensation (Para 19 & 20)

B. Motor Vehicles Act (59 of 1988) -
Composite Negligence - Claim Petition
not
defective
merely
because
compensation prayed from only one of
the owner/driver - if alleged accident
caused due to composite negligence of
drivers of both vehicles, claimant is
entitled to sue both or any one of the
joint tortfeasors (Para 21 & 22)

C. Motor Vehicles Act (59 of 1988) -
Section 2(21) - Alleged vehicle a mini
bus, unladen weight 3250 kg, as per S. 2
(21) the alleged vehicle is light motor
vehicle - DL of driver of offending vehicle
valid upto 2017 for LMV private vehicle,
was valid on the date of accident i.e.
15.7.2009 and the driver was competent
to drive transport vehicle or omnibus as
the gross vehicle weight of did not
exceed 7500 kg - Driving Licence issued
for driving Light Motor Vehicle (LMV)
would not be affected merely on its
subsequent endorsement for driving of
heavy transport vehicle (HTV) (Para 18)

D. Motor Vehicles Act (59 of 1988) -
Section 14 - Driving licence - Driving
licence validly issued but its validity had
expired - notwithstanding its expiry, the
driving license continued to be effective
for a period of thirty days from such
expiry - Section 15 - Renewal of driving
licences - Any driving licence may be
renewed on an application, made by the
licensee within 30 days

Held - Accident occurred on 15.7.2009 - Driving
licence expired on 10.7.2009 - Driving licence
valid for further period of thirty days i.e. up to
9.8.2009 - as such on the date of alleged
accident on 15.7.2009 the driver was duly
licensed for driving offending vehicle (Para 14)

First Appeal from Order dismissed. (E-5)

List of cases cited: -

## Text

534 INDIAN LAW REPORTS ALLAHABAD SERIES
very root of the right of the plaintiff to
maintain the suit in the form in which it
was filed and so the plea was permitted to
be urged. So far as the plea as to
readiness and willingness by reference to
Clause (c) of Section 16 of the Specific
Relief Act, 1963 is concerned, the
pleadings are there as they were and the
question of improving upon the pleadings
does not arise inasmuch as neither any of
the parties made a prayer for amendment
in the pleadings nor has the High Court
allowed such a liberty. It is true that a
specific issue was not framed by the trial
court. Nevertheless, the parties and the
trial court were very much alive to the
issue whether Section 16(c) of the Specific
Relief Act was complied with or not and
the contentions advanced by the parties in
this regard were also adjudicated upon.
The High Court was to examine whether
such finding of the trial court was
sustainable or not-in law and on facts.
Even otherwise the question could have
been gone into by the High Court and a
finding could have been recorded on the
available material inasmuch as the High
Court being the court of first appeal, all
the questions of fact and law arising in
the case were open before it for
consideration and decision."

21. Undisputedly, Section 107 of the
C.P.C. empowers the appellate court to
remand a case but it also empowers the
appellate court to take additional evidence
or to require such evidence to be taken.
Rule 24 of Order XLI of the C.P.C.
provides that where evidence on record is
sufficient,
the
appellate
court
may
determine the case finally. It is settled
principle of law that the first appellate
court has power to remand the case if the
trial court has disposed of a suit on a
preliminary
issue
without
recording
evidence and giving its decision on the
rest of the issues.

22. In the instant case, the
respondent/ plaintiff filed a suit for
cancellation
of
sale
deed
dated
22.11.2007, written statement was filed
by the appellant/defendant, issues were
framed and the evidence was adduced by
both the parties. It is not a case where the
trial court has disposed of the suit on a
preliminary
issue
without
recording
evidence and giving its decision on the
rest of the issues. The first appellate court
could have decided the matter on the basis
of the evidence on record.

23. In view of the aforesaid discussion,
the appeal is allowed, impugned judgment
and decree dated 05th October, 2018 passed
by learned Additional District Judge, Unnao,
in Civil Appeal No.02 of 2016, are set aside
and the matter is remanded back to the first
appellate court to decide the appeal on merits
and pass a fresh order after hearing both the
parties, in accordance with law. The first
appellate court is directed to decide the
appeal expeditiously and preferably within a
period of three months.

24. Both the parties are directed to
appear before learned District Judge,
Unnao on 06.01.2020 who will hear the
appeal himself or assign the same to some
other competent court for deciding the
same according to law.

25. A copy of this judgment be sent
back
to
the
first
appellate
court
immediately.
----------
(2019)12 ILR A534

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2019
4 All. The Oriental Insurance Co. Ltd. Vs. Ramesh Chandra Nishra & Ors.
535
BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

FAFO No. 2738 of 2011

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Ramesh Chandra Nishad & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Ashok K. Jaiswal, Sri Sidharth Jaiswal

Counsel for the Respondents:
Sri Sharve Singh, Sri Sudhaker Pandey,
Smt. Neeraja Singh

A. Motor Accident Claim - Motor Vehicles
Act (59 of 1988) - Section 163A -
claimant not required to prove the
negligence of the offending vehicle - in
proceeding
u/s
163A
of
the
Act,
Insurance Company cannot raise any
defence of contributory negligence on
the part of the victim to counter a claim
for compensation (Para 19 & 20)

B. Motor Vehicles Act (59 of 1988) -
Composite Negligence - Claim Petition
not
defective
merely
because
compensation prayed from only one of
the owner/driver - if alleged accident
caused due to composite negligence of
drivers of both vehicles, claimant is
entitled to sue both or any one of the
joint tortfeasors (Para 21 & 22)

C. Motor Vehicles Act (59 of 1988) -
Section 2(21) - Alleged vehicle a mini
bus, unladen weight 3250 kg, as per S. 2
(21) the alleged vehicle is light motor
vehicle - DL of driver of offending vehicle
valid upto 2017 for LMV private vehicle,
was valid on the date of accident i.e.
15.7.2009 and the driver was competent
to drive transport vehicle or omnibus as
the gross vehicle weight of did not
exceed 7500 kg - Driving Licence issued
for driving Light Motor Vehicle (LMV)
would not be affected merely on its
subsequent endorsement for driving of
heavy transport vehicle (HTV) (Para 18)

D. Motor Vehicles Act (59 of 1988) -
Section 14 - Driving licence - Driving
licence validly issued but its validity had
expired - notwithstanding its expiry, the
driving license continued to be effective
for a period of thirty days from such
expiry - Section 15 - Renewal of driving
licences - Any driving licence may be
renewed on an application, made by the
licensee within 30 days

Held - Accident occurred on 15.7.2009 - Driving
licence expired on 10.7.2009 - Driving licence
valid for further period of thirty days i.e. up to
9.8.2009 - as such on the date of alleged
accident on 15.7.2009 the driver was duly
licensed for driving offending vehicle (Para 14)

First Appeal from Order dismissed. (E-5)

List of cases cited: -

1. Oriental Insurance Co. Ltd. Vs Santosh
Kumari and others 2019 ACJ 225

2. National Insurance Co. Ltd. Vs Swaran
Singh 2004 ACJ 1 (SC)

3. Jagdish Kumar Sood Vs United India
Insurance Co. Ltd (2018) 3 SCC 697

4. Mukund Dewangan Vs Oriental Insurance
Co. Ltd (2017) 14 SCC 663

5. Shivaji Vs Divisional Manager United India
Insurance Co. Ltd., 2018 ACJ 2161

6. United India Insurance Company Ltd. Vs
Sunil Kumar 2018 ACJ 1 (SC)

7. Khenyei Vs New India Assurance Co. Ltd
(2015) 9 SCC 273

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This appeal has been filed by
appellant Insurance Company (hereinafter
536 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as "Insurer") against the award
dated
28.4.2011
passed
by
Motor
Accident
Claims
Tribunal/Additional
District Judge, Court No. 5, Allahabad in
M.A.C.P. No. 627 of 2009 (Ramesh
Chandra Nishad and others Vs. Leeladhar
Tripathi and others) whereby claim
petition filed by claimants-respondents
No. 1and 2 (for short "claimants") has
been allowed and compensation of Rs.
3,35,979/- along with 6.5% simple annual
interest has been awarded.

2. The brief facts, arising out of this
appeal, are that on 15.7.2009 at about 12 O'
clock, the deceased Mahesh, aged about 24
years was riding as pillion rider on
motorcycle, driven by one Sushil Kumar.
When he was passing nearby a culvert
situated near the Shastri Bridge within
jurisdiction of P.S. Daraganj, Allahabad,
driver of the vehicle TATA Mini Bus No. UP
70 AT-4058, driving the said vehicle, rash and
negligently, dashed the motorcycle of Sushil
Kumar whereby deceased Mahesh received
grievous injuries, in result whereof he died on
16.7.2009, during treatment. First Information
Report was lodged by one Sunil Kumar
Nishad and Case Crime No. 173 of 2009
under Section 279, 337, 338, 304-A IPC, was
registered at P.S. Daraganj, Allahabad.

3. Claim petition was filed by
claimants (parents of deceased Mahesh)
under Section 163-A of Motor Vehicle
Act
(for
short
"M.V.
Act"),
for
compensation of Rs. 9 lakhs against the
owner of vehicle/ respondent no.3 and
Insurer. The said claim petition was
allowed by the Tribunal by aforesaid
impugned order and award. Aggrieved by
the said award this appeal has been filed.

4. Heard Sri Sidharth Jaiswal,
Advocate, holding brief of Sri Ashok
Kumar Jaiswal, learned counsel for
Insurer, Sri Sudhakar Pandey, learned
counsel for claimant, Smt. Neeraja Singh,
learned counsel for respondent No. 3 and
perused the record.

5. Learned counsel for Insurer has
submitted that accident was happened on
15.7.2009. At the time of accident, the
driver of the vehicle had not any valid
licence or authority to drive the said
vehicle, because the driving licence
(hereinafter referred to as "D.L.") of the
driver Anant Lal who was driving the
alleged vehicle at the time of accident,
had expired on 10.7.2009 which was
renewed after 13.10.2009. Thus, there is
complete breach of policy. It has further
been submitted that alleged accident was
caused due to negligence of driver of
motorcycle (Sushil Kumar) but the
Tribunal has not held him for contributory
negligence and held total negligence of
the driver of offending vehicle TATA
Mini Bus UP 70 AT-4058. The said
judgment is against the evidence and
material on record and also against the
settled principle of law, which is liable to
be set aside.

6. Learned counsel for claimants
vehemently
opposed
the
submission
advanced by the learned counsel for
Insurer and submits that there is no
illegality or perversity in the judgment. It
is further submitted that at the time of
alleged
accident
motorcyclist
Sushil
Kumar was driving the motorcycle with
slow and moderate speed. He was not
negligent at the time of accident. The
claim petition was filed under Section
163-A
of
M.V.
Act
wherein
the
contributory
negligence
of
the
motorcyclist cannot be taken as defence
by Insurer.
4 All. The Oriental Insurance Co. Ltd. Vs. Ramesh Chandra Nishra & Ors.
537

7. Learned counsel for respondent
No. 3/owner of the vehicle has submitted
that alleged accident had not been caused
by offending vehicle No. UP 70 AT 4058.
It was being driven, at the time of alleged
accident, by a qualified and skilled driver,
having effective D.L. Mere fact that the
validity of D.L. had been expired just 5
days prior to the date of accident, will not
absolve Insurer from its liability to pay
compensation because at the time of
accident all the papers of vehicle were
valid and it was insured by the Insurer.

8. I have considered the rival
submissions of learned counsel for parties
and perused the record.

9. So far as question whether on the
date of alleged accident i.e. 15.7.2009,
driver of the offending vehicle No. UP 70
AT- 4058 had any valid and effective
licence or not, is concerned, respondent
no.3/owner of the offending vehicle in his
written statement, filed before Tribunal,
has specifically stated that all the papers
including insurance cover policy and D.L.
of the offending vehicle were effective
and valid at the time of occurrence and at
the time of accident, alleged vehicle was
being driven by Anant Lal.

10. DW-3, Anant Lal, driver of the
offending vehicle, has stated before the
Tribunal that on 15.7.2009 he was driver
of UP 70 AT 4058 and at that time he had
valid and effective licence to drive the
alleged vehicle. DW-1, Sagir Ahmad is an
official of the office of Road Transport
Authority, Allahabad. He has stated on
oath before the Tribunal that D.L. No.
4520/HTV/2000 is new number of old
D.L. No. A-16767/A/97, issued on
3.4.1997 to Anant Lal (DW-3). According
to him the old D.L. was valid from
3.4.1997 up to 2017, for Light Motor
Vehicle
(for
short
"LMV")/private
vehicle.
Filing
copies
of
relevant
document of records, kept in this regard in
his office, he has further stated that D.L.
was endorsed for driving of heavy
transport vehicle (hereinafter referred to
as "HTV") on 12.1.2000 which was valid
from 12.1.2000 to 11.1.2003 and renewed
thereafter from 22.2.2003 to 21.2.2006;
from 11.7.2006 to 10.7.2009. No witness
has been produced by the Insurer before
the Tribunal to controvert the statement of
either Anant Lal (DW-3) or Sagir Ahmad
(DW-1) and only investigation report was
filed wherein it has been admitted that
D.L. No. 4520/HTV/2000 (old D.L. No.
A-16767/A/97) has been issued on
3.4.1997 to Anant Lal (DW-3). The said
old D.L. was issued for driving of LMV
(non transport) which was later on
endorsed for HTV. Thus the aforesaid
investigation report also corroborate the
statement of Sagir Ahmad (DW-1) that
earlier a D.L. of LMV (non transport) A16767/A/97 was issued to Anant Lal on
3.4.1997 which was later on endorsed for
HTV. Thus it is clear that old licence of
LMV was valid up to 2017 but the
endorsement for driving of HTV was
valid only for 10.7.2009 which was later
on
renewed
from
13.10.2009
to
12.12.2012.

11. Section 14, 15 and 149 of the
M.V. Act deals with currency of D.L.,
provision regarding its renewal and the
duty of insurer to satisfy the award
against person insured in respect of third
party risks including defence available to
insure to avoid its liability, which are as
under:-

"14. Currency of licences to
drive motor vehicles. - (1) A learner's
538 INDIAN LAW REPORTS ALLAHABAD SERIES
licence issued under this Act shall, subject
to the other provisions of this Act, be
effective for a period of six months from
the date of issue of the licence.

(2) A driving licence issued or
renewed under this Act shall -

(a) in the case of a licence to
drive a transport vehicle, be effective for
a period of three years :

[Provided that in the case of
licence to drive a transport vehicle
carrying
goods
of
dangerous
or
hazardous nature be effective for a period
of one year and renewal thereof shall be
subject to the condition that the driver
undergoes one day refresher course of the
prescribed syllabus ; and ]

(b) in the case of any other
licence -

(i) if the person obtaining the
licence, either originally or on renewal
thereof, has not attained the age of [ fifty
years ] on the date of issue or, as the case
may be, renewal thereof -

(A) be effective for a period of
twenty years from the date of such issue
or renewal ; or

(B) until the date on which such
person attains the age of [ fifty years ],
whichever is earlier ;

[ (ii) if the person referred to in
sub-clause (i), has attained the age of fifty
years on the date of issue or as the case
may be, renewal thereof, be effective, on
payment of such fee as may be prescribed,
for a period of five years from the date of
such issue or renewal : ]

Provided that every driving
licence shall, notwithstanding its expiry
under this sub-section, continue to be
effective for a period of thirty days from
such expiry.

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
date 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 date of its expiry, the driving
licence shall be renewed with effect from
the date of its renewal :

Provided further that where the
application is for the renewal of a licence
to drive a transport vehicle or where in
any other case the applicant has attained
the age of forty years, the same shall be
accompanied by a medical certificate in
the same form and in the same manner as
is referred to in sub-section (3) of section
8, and the provisions of sub-section (4) of
section 8 shall, so far as may be, apply in
relation to every such case as they apply
in relation to a learner's licence.

(2) An application for the
renewal of a driving licence shall be
made in such form and accompanied by
such documents as may be prescribed by
the Central Government.

(3) Where an application for
the renewal of a driving licence is made
previous to, or not more than thirty days
after the date of its expiry, the fee
payable for such renewal shall be such
as may be prescribed by the Central
Government in this behalf.

(4) Where an application for
the renewal of a driving licence is made
more than thirty days after the date of its
expiry, the fee payable for such renewal
shall be such amount as may be
prescribed by the Central government :

Provided that the fee referred to
in sub-section (3) may be accepted by the
licensing authority in respect of an
application for the renewal of a driving
licence made under this sub-section if it is
satisfied that the applicant was prevented
4 All. The Oriental Insurance Co. Ltd. Vs. Ramesh Chandra Nishra & Ors.
539
by good and sufficient cause from
applying within the time specified in subsection (3) :

Provided further that if the
application is made more than five years
after the driving licence has ceased to be
effective, the licensing authority may
refuse to renew the driving licence, unless
the applicant undergoes and passes to its
satisfaction the test of competence to
drive referred to in sub-section (3) of
section 9.

(5) Where the application for
renewal has been rejected, the fee paid
shall be refunded to such extent and in
such manner as may be prescribed by the
Central Government.

(6)
Where
the
authority
renewing the driving licence is not the
authority which issued the driving licence
it shall intimate the fact of renewal to the
authority which issued the driving licence.

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 sub-section (3) of
section 147 in favour of the person by
whom a policy has been effected,
judgement or award in respect of any
such liability as is requirement to be
covered by a policy under clause (b) of
sub-section (1) of section 147 (being a
liability covered by the terms of the
policy) [or under the provisions of section
163 A] 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 judgement
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
judgements.

(2) No sum shall be payable by
an insurer under sub-section (1) in
respect of any judgement or award unless,
before
the
commencement
of
the
proceedings in which the judgement 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
judgement 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 licenced,
or by any person who has been
540 INDIAN LAW REPORTS ALLAHABAD SERIES
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 nondisclosure of a material fact or by a
representation of fact which was false in
some material particular.

(3) Where any such judgement
as is referred to in sub-section (1) is
obtained from a Court in a reciprocating
country and in the case of a foreign
judgement 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
judgement were given by a Court in India
:

Provided that no sum shall be
payable by the insurer in respect of any
such
judgement
unless,
before
the
commencement of the proceedings in
which the judgement 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 sub-section (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 conditions other than
those in clause (b) of subsection (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
judgement 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
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
judgement or award as is referred to in
4 All. The Oriental Insurance Co. Ltd. Vs. Ramesh Chandra Nishra & Ors.
541
sub-section (1) or in such judgement as is
referred to in sub-section (3) otherwise
than in the manner provided for in subsection (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."

 (Emphasis supplied)

12. The aforesaid provision reveals
that if a certificate of insurance has been
issued in favour of insured, the insurer is
under obligation, subject to the provision
of Section 149, to pay the person entitled
to the benefit of decree (awarded
compensation), though insurer may be
entitled to avoid or cancel or may have
avoided or cancelled the policy. SubSection 2 of Section 149 provides the
ground of defence which may be taken by
the insurer to avoid its liability, wherein
sub-clause (ii) provides that if the alleged
vehicle is not being driven by a duly
licensed person or has been driven by a
person
disqualified
for
holding
or
obtaining a D.L. during the period of
disqualification or driven by any person
which was excluded for driving.

13. In this case Insurer has not
produced any evidence that Anant Lal
(DW-3) was specifically disqualified for
holding or obtaining D.L. It is also not the
case of appellant that there was any
condition in the D.L. to exclude him from
driving.

14. So far as question, whether
driver of the offending vehicle, Anant Lal
(DW-3), was duly licensed or not, at the
time of accident, is concerned, proviso of
Section
15
sub-section
(1)
clearly
provides that any D.L. may be renewed
on an application, made by the licensee
within 30 days, whereas proviso of
Section 14 sub-Section 2; clause b(ii)
provides
that
every
D.L.
shall,
notwithstanding its expiry under this subsection, continue to be effective for a
period of thirty days from such expiry.
Thus from perusal of aforesaid provision
it is clear that driving licence which was
valid up to 10.7.2009 was also valid for
further period of thirty days i.e. up to
9.8.2009. In view of above it is clear that
at the time of alleged accident Anant Lal
(DW-3) was duly licensed for driving of
the offending vehicle, because accident in
question has been caused on 15.7.2009.

15. In Oriental Insurance Co. Ltd.
Vs. Santosh Kumari and others, 2019
ACJ 225, in similar case where the
question had arisen as to whether D.L.
would be effective and valid in case
where accident was caused on 31.12.2006
but D.L. had expired on 25.12.2006,
Division Bench of this Court, while
relying on the law laid down by Hon'ble
Supreme Court in National Insurance
Co. Ltd. Vs. Swaran Singh, 2004 ACJ 1
(SC), has held as under:-

24. We would like to refer to a
judgment
rendered
by
the
Hon'ble
Supreme Court of India in National
Insurance Company Limited versus
Swaran Singh (2004)3 SCC 297. Paras
45 and 46 are required to be extracted for
consideration of the issue involved in this
case. Paras 45 and 46 read as under :

"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
542 INDIAN LAW REPORTS ALLAHABAD SERIES
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 5 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."

The Supreme Court appears to
have
considered
the
provisions
of
Sections 14 and 15 of the Motor Vehicles
Act in the above noted paragraphs. It has
specifically been held by the Hon'ble
Supreme Court in para 45 that 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.

In view of the above, we have no
hesitation in holding that the appellant
insurer would be liable to pay the
claimants the insured amount awarded by
the tribunal. The accident occurred within
thirty days of expiry of the licence,
therefore, under the proviso to Section 14
of The Act, it remained effective. It disentitles the insurer to take a plea that the
licence was not valid.

16. It is also pertinent to mention at
this juncture the law laid down by the
Hon'ble Supreme Court in Jagdish
Kumar
Sood
Vs.
United
India
Insurance Co. Ltd., (2018) 3 SCC 697,
where the driver of the alleged vehicle,
having licence of LMV was driving the
transport vehicle, in absence of specific
authorization.
Relying
on
Mukund
Dewangan Vs. Oriental Insurance Co.
Ltd., (2017) 14 SCC 663, Hon'ble
Supreme Court, has held as under:-

" The issue which arises before
the Court is not res integra and is covered
by a judgment of three Judges of this
Court in Mukund Dewangan v Oriental
Insurance Co. Ltd. in which it has been
inter alia held as follows:

"60.1. "Light motor vehicle" as
defined in Section 2(21) of the Act would
include a transport vehicle as per the
weight prescribed in Section 2(21) read
with Sections 2(15) and 2(48). Such
transport vehicles are not excluded from
the definition of light motor vehicle by
virtue of Amendment Act 54 of 1994."

"60.2. A transport vehicle and
omnibus, the gross vehicle weight of
either of which does not exceed 7500 kg
would be a light motor vehicle and also
motor car or tractor or a roadroller,
"unladen weight" of which does not
exceed 7500 kg and holder of a driving
licence to drive class of "light motor
vehicle" as provided in Section 10(2)(d) is
competent to drive a transport vehicle or
omnibus, the gross vehicle weight of
which does not exceed 7500 kg or a motor
car or tractor or roadroller, the "unladen
weight" of which does not exceed 7500
kg.
That
is
to
say,
no
separate
4 All. The Oriental Insurance Co. Ltd. Vs. Ramesh Chandra Nishra & Ors.
543
endorsement on the licence is required to
drive a transport vehicle of light motor
vehicle class as enumerated above. A
licence issued under Section 10(2)(d)
continues to be valid after Amendment Act
54 of 1994 and 28-3-2001 in the form."

17. In this case the alleged vehicle
No. UP 70 AT 4058 is mini bus. From
perusal of registration certificate of the
said vehicle, filed by the claimant, which
has also been verified by the investigator
of appellant- Insurer, it transpires that
unladen weight of alleged vehicle is 3250
kg and its laden weight is 5300 kg.
Section 2(21) of M.V. Act defines LMV
which is as under:-

"Light motor vehicle means a
transport vehicle or omnibus the gross
vehicle weight of either of which or a
motor car or tractor or road-roller the
unladen weight of any of which, does not
exceed [7500] kilograms."

18. Thus it is clear that the alleged
vehicle is light motor vehicle. According
to Sagir Ahmad (DW-1), an official of the
office of Road Transport Authority,
Allahabad, old D.L. of Anant Lal (DW-3)
was valid from 3.4.1997 to 2017 for
LMV, private vehicle. According to him
further, the said D.L. was endorsed for
driving the HTV on 12.1.2000, which was
valid from 12.1.2000 to 11.1.2003 and
later on renewed from time to time up to
10.7.2009
and
also
renewed
from
13.10.2009 to 12.12.2012. In my view,
D.L. of Anant Lal, driver of the offending
vehicle, valid up to 2017 for LMV private
vehicle, was valid on the date of accident
i.e. 15.7.2009 and its validity for LMV
would not be affected merely on its
subsequent endorsement for HTV. In
addition to above, in view of the law
settled by the Hon'ble Apex Court in
Mukund
Devangan
(supra)
and
followed
in
Jagdish Kumar Sood
(supra), Anant Lal (DW-3) was qualified,
having valid and effective D.L., to drive
the alleged vehicle at the time of accident.

19. The M.V. Act is social and
beneficial legislation. Its purpose is to
compensate the poor and helpless family
whose bread winner has died or become
disabled
due
to
motor
accident.
Parliament was aware of the fact that in
some cases where negligence of driver of
offending vehicle could not be proved but
since victim had died or suffered injuries
due to such accident, in such cases some
compensation ought to be awarded to him
or his dependents. Section 163-A of M.V.
Act is the provision which does not
require the claimant to prove the
negligence of the offending vehicle,
which is as under:-

"163A. Special provisions as to
payment of compensation on structured
formula basis-

(1) Notwithstanding anything
contained in this Act or in any other law
for time being in force or instrument
having the force of law, the owner of the
motor vehicle of the authorised 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.
Explanation- For the purposes of this subsection, "permanent disability" shall have
the same meaning and extent as in the
Workmen's Compensation Act, 1923.

(2)
In
any
claim
for
compensation under sub-section (1), the
claimant shall not be required to plead or
544 INDIAN LAW REPORTS ALLAHABAD SERIES
establish that the death or permanent
disablement in respect of which the claim
has been made was due to any wrongful
act or neglect or default of the owner of
the vehicle or vehicles concerned or of
any other person.

(3) The Central Government
may, keeping in view the cost of living by
notification in the Official Gazette, from
time to time amend the Second Schedule."

20. Deceased Mahesh was travelling
on the said motorcycle as a pillion rider
which was being ridden by one Sushil
Kumar. The claim petition has been filed
under Section 163-A of M.V. Act and it
has been held by the Tribunal that
motorcyclist Sushil Kumar was not
negligent at the time of accident. Record
shows that F.I.R. was lodged against the
driver of offending vehicle i.e. TATA 407
mini bus, under Section 279, 337, 338 and
304-A IPC and after due investigation
charge sheet was filed against Anant Lal
Pal (DW-3), driver of the offending
vehicle bearing registration No. UP 70
AT 4058 for rash and negligent driving.
No evidence has been produced before the
Tribunal
by
the
appellant-
Insurer
regarding any negligence of motorcyclist,
Sushil Kumar. It has now been settled by
the Supreme Court that in claim petition,
filed u/s 163-A of M.V. Act, plea of
contributory negligence cannot be taken.
Hon'ble Supreme Court in Shivaji and
another Vs. Divisional Manager United
India Insurance Co. Ltd., 2018 ACJ
2161, where a question was involved as to
whether Insurance Company can take plea
of contributory negligence in claim
petition, under Section 163-A of M.V.
Act, filed by parents of driver of car
which dashed the truck, resulting his
death and other two persons traveling by
car, relying on ratio of United India
Insurance Company Ltd. Vs. Sunil
Kumar, 2018 ACJ 1 (SC) has held as
under:-

"The issue which arises before
us is no longer res integra and is covered
by a recent judgment of three judges of
this Court in United India Insurance Co.
Ltd. v. Sunil Kumar & Anr., wherein it
was held that to permit a defence of
negligence of the claimant by the insurer
and/or to understand Section 163A of the
Act as contemplating such a situation,
would be inconsistent with the legislative
object
behind
introduction
of
this
provision, which is "final compensation
within a limited time frame on the basis of
the structured formula to overcome
situations
where
the
claims
of
compensation on the basis of fault
liability was taking an unduly long time".
The Court observed that if an insurer was
permitted to raise a defence of negligence
under Section 163A of the Act, it would
"bring a proceeding under Section 163A
of the Act at par with the proceeding
under Section 166 of the Act which would
not only be self-contradictory but also
defeat the very legislative intention".
Consequently, it was held that in a
proceeding under Section 163A of the
Act, the insurer cannot raise any defence
of negligence on the part of the victim to
counter a claim for compensation."

 (Emphasis
supplied)

21. It is also settled principle of law
that even if it is found that the alleged
accident was caused due to composite
negligence of drivers of both vehicles,
claim petition for compensation may be
filed against owners/drivers of both the
vehicles or anyone of them. Hon'ble
Supreme Court in Khenyei Vs. New
4 All. The New India Assurance Co. Ltd. Vs. Ram Ganesh & Ors.
545
India Assurance Co. Ltd., (2015) 9 SCC
273, has held as under:-

(i) In the case of composite
negligence, plaintiff/claimant is entitled to
sue both or any one of the joint
tortfeasors and to recover the entire
compensation
as
liability
of
joint
tortfeasors is joint and several.

22. Thus Insurer cannot take plea
either of contributory negligence of
motorcyclist or that claim petition is
defective as no compensation has been
prayed from motorcyclist.

23. In view of the above discussion I
do not find any merit in the present
appeal. The impugned judgment and
award passed by the Tribunal requires no
interference. Accordingly, the appeal is
dismissed.

24. Office is directed to return back
the lower court record to Tribunal
forthwith
so
that
the
awarded
compensation be paid to the claimants in
view of the impugned award. The
statutory deposit of Rs. 25000/-, deposited
by the Insurer before this Court, if not
remitted, be also remitted to the Tribunal.

----------
(2019)12 ILR A545

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 4083 of 2011

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Ram Ganesh & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra

Counsel for the Respondents:
Sri R.C. Maurya

Motor Vehicles Act (59 of 1988) -
Sections 166 & 168 - Selection of
Multiplier - Operative multiplier is 17 for
the age groups of 26 to 30 (Para 7)

First Appeal from Order dismissed. (E-5)

List of cases cited: -

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

2. National Insurance Company Vs Pranay
Sethi & others AIR 2017 SC 5157

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri S.K. Mehrotra, learned
counsel for the appellant, Sri R.C.
Maurya,
learned
counsel
for
the
respondents and perused the record.

2. This appeal has been filed by the
New Indian Assurance Co. Ltd. against
the
judgment
and
award
dated
17.09.2011, passed by Motor Accident
Claims Tribunal / Special Judge, E.C.
Act, Agra, in MACP No. 05 of 2010
(Ram Ganesh and others vs. P.S. Batesh
and others) by which the learned tribunal
has awarded the compensation of Rs.
5,05,000/- with 6% per annum simple
interest from the date of filing of the
appeal.

3. Aggrieved by the aforesaid
judgment and award, the present appeal
has been filed and the impugned judgment