# United India Insurance Co. Ltd., Lucknow v. Smt. Sheela & Ors

- **Citation:** (2023) 5 ILRA 150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Case number:** First Appeal From Order No. 238 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/united-india-insurance-co-ltd-lucknow-v-smt-sheela-ors-50128
- **Pages:** 12

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-claim-Tribunal
awarded a sum of Rs. 18,69,280/- in
favour of the claimant-the said award was
passed
against
the
Insurance
Company-the Insurance Company has
escalated the matter on the premise
that the driver of the offending Gas
Tanker did not have a valid and an
effective driving licence-Even though
the driver had a licencse but since it
did not have the requisite endorsement
as provided in Motor Vehicles Act
permitting
the
driver
to
drive
a
transportation
vehicle
carrying
dangerous/hazardous
goods-Hence,
the award is to be satisfied by the
Insurance Company qua the claimatrespondent
but
the
appellantinsurance
company
is
entitled
to
recover the amount from the owner of
the offending vehicle(insured)-Thus,
the Tribunal has erred in deciding the
issue and fastening the entire liability
on the Insurance company without
granting the right to recovery to the
insurer.(Para 1 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

150 INDIAN LAW REPORTS ALLAHABAD SERIES
criteria provided by authorities in point
discussed earlier.

29. However, in the wake of the
preceding discussion, this Court finds that
the owner had failed to establish the
aforesaid foundational facts. The owner did
not appear in the witness box to prove that
the driving licence of the driver was
produced before him and that he was
satisfied with its genuineness at the time of
the driver's appointment. Further, pleadings
entered by the owner-appellant before the
learned tribunal too are deficient in this
regard.

30. No case for interference in the
impugned award is made out. The appeal is
dismissed.
----------
(2023) 5 ILRA 150
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.05.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 238 of 2022

United India Insurance Co. Ltd., Lucknow
 ...Appellant
Versus
Smt. Sheela & Ors. ...Respondents

Counsel for the Appellant:
Tarun Kumar Misra

Counsel for the Respondents:
Raj Kumar Vishwakarma, Firoz Ahmad
Khan, Jagjit Sodhi

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-claim-Tribunal
awarded a sum of Rs. 18,69,280/- in
favour of the claimant-the said award was
passed
against
the
Insurance
Company-the Insurance Company has
escalated the matter on the premise
that the driver of the offending Gas
Tanker did not have a valid and an
effective driving licence-Even though
the driver had a licencse but since it
did not have the requisite endorsement
as provided in Motor Vehicles Act
permitting
the
driver
to
drive
a
transportation
vehicle
carrying
dangerous/hazardous
goods-Hence,
the award is to be satisfied by the
Insurance Company qua the claimatrespondent
but
the
appellantinsurance
company
is
entitled
to
recover the amount from the owner of
the offending vehicle(insured)-Thus,
the Tribunal has erred in deciding the
issue and fastening the entire liability
on the Insurance company without
granting the right to recovery to the
insurer.(Para 1 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. NICL Vs Swaran Singh (2004) 3 SCC 297.

2. Gautam Filling Station Vs Munnu Singh & anr.
(2016) 34 LCD 1669.

3. Sibbal Singh Vs The United India Ins. Co. Ltd.
F.A.F.O. (Defective) No 378 of 2010

4. United India Ins. Co. Ltd. Vs Smt. Vimla Devi
& ors. F.A.F.O No. 845 of 2006 (2021 Latest
case Law 8677 ALL)

5. Oriental Ins. Co. Ltd. Vs Nanjappan &
ors.(2004) 13 SCC 224

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Tarun Kumar Mishra,
learned counsel for the appellant and Sri
Firoz Ahmad Khan, learned counsel for the
claimants-respondents no. 5 and 6. Sri
Jagjit Singh Sodhi, learned counsel for the
claimant-respondents no. 1 to 4
5 All. United India Insurance Co. Ltd., Lucknow Vs. Smt. Sheela & Ors.
151

2.
The
insurance
company,
as
appellants, have instituted the aforesaid
appeal against the award dated 18.11.2021
passed by the Motor Accident Claims
Tribunal (South), Lucknow in Claim
Petition No. 564 of 2017 whereby the
Claims Tribunal has awarded a sum of Rs.
18,69,280/- along with 7% interest from the
date of the application till the date of the
payment in favour of the claimantrespondents no. 1 to 4 and the said award
has been passed against the Insurance
Company.

3. The learned counsel for the
appellant while assailing the award has
raised a solitary contention. The thrust of
the arguments is that the accident occurred
on account of rash and negligent driving of
the offending Gas Tanker bearing No. UP
17 AT 1890, however, though, no appeal
has been preferred by the owner and the
driver regarding the aforesaid finding but
the Insurance Company has escalated the
matter on the premise that the driver of the
offending Gas Tanker did not have a valid
and an effective driving license, inasmuch
as, on the date of the accident i.e.
29.07.2017, the driver of the aforesaid Gas
Tanker namely Rajesh Kumar did not have
the requisite endorsement on his driving
license
authorizing
him
to
drive
a
transportation vehicle containing hazardous
goods.

4. It is further submitted that a specific
issue was framed by the Tribunal to the
effect whether the driver of the said tanker
had a valid and effective driving license
and while answering the same, the Tribunal
held that the driver of the aforesaid tanker
had a valid license and fastened the liability
on the Insurance Company. It was of the
view that since the accident did not occur
on account of any leakage or as a direct
consequence of a hazardous good itself
contained in the said tanker, therefore, the
Insurance Company cannot be absolved of
its liability.

5. It is further urged that the Tribunal
completely misdirected itself, inasmuch as,
it did not consider that the driver did not
have the requisite endorsement on his
license regarding the authorization to drive
a transportation vehicle carrying hazardous
goods and in absence of any such
endorsement, it cannot be said that that the
driver was authorized, hence, this being
contrary to the relevant Rule 9 (3) of
Central Motor Vehicle Rules, 1989 read
with Section 14 (2) (a) of the Motor
Vehicles Act, 1988, it would indicate that
the driver was not authorized which in
effect amounts to driving the vehicle
without an authority and as such the
Insurance Company could not be fastened
with the aforesaid liability and moreover
the Tribunal has further erred in not even
granting the recovery rights which has
resulted in sheer miscarriage of justice.

6. Per contra, Sri Firoz Ahmad Khan,
learned counsel for the respondents no. 5
and 6 submits that the vehicle in question
was duly insured and the driver had a valid
driving license and also noticing the fact
that the accident occurred and the death
was not on account of the use or
consequence of the hazardous goods,
therefore, it cannot be said that the view
taken by the Tribunal was incorrect. It is
also submitted that the driving license of
the respondent no. 5 was valid and
subsisting, accordingly, the appeal deserves
to be dismissed.

7. The learned counsel for the
claimant-respondents no. 1 to 4 has
submitted that even though the award has
152 INDIAN LAW REPORTS ALLAHABAD SERIES
been passed in favour of the claimantrespondent nos. 1 to 4 yet because of the
subsisting interim order passed in the
appeal dated 21.06.2022, not a single penny
has been provided to the claimantrespondent nos. 1 to 4 despite they have
lost their earning family member and that
appeal deserves to be dismissed.

8. The Court has heard the learned
counsel for the parties and also perused the
material on record.

9. Before adverting to the submissions
of the respective parties, certain brief facts
giving rise to the instant appeal are being
noticed hereinafter:-

10. The claimants-respondents no. 1 to
4 preferred a Claim Petition No. 564/2017
before the Motor Accident Claims Tribunal
(South) Lucknow with the averment that on
29.07.2017
at
around
12:30
in
the
afternoon Ms. Arunima Chandra (the
deceased) while moving out from the
C.H.C. in District Unnao to attend her field
duties was hit by a Gas Tanker bearing No.
U.P. 17 AT 1890 and on account of the hit
she suffered grievous injuries which led to
her death on the spot. It was also stated that
she was working on the post of B.L.P. in
the office of Chief Medical Officer and was
earning a sum of Rs. 15,600/- per month.

11. The driver and owner of the
aforesaid offending Gas Tanker filed their
separate written statement denying the
accident. However, the owner took a plea
that the said tanker had a subsisting fitness
certificate which was valid till March, 2023
and the national permit was also valid w.e.f.
21st March, 2017 till 20th March, 2022 and
the vehicle was duly insured with the
appellant-company w.e.f. 24.02.2017 till
23.02.2018 and as such, if at all, any award
is made, the same is liable to be satisfied by
the Insurance Company.

12. The driver on the other hand in his
written statement reiterated the stand as
taken by the owner but also took an
additional stand that he had a valid and a
subsisting driving license.

13. The Insurance Company on the
other hand while filing its writing statement
denied its liability to honour the award as
the driver did not have a valid license.

14. In light of the aforesaid pleadings,
the Tribunal framed four issues and after
considering the evidence it decided the four
issues
in
favour
of
the
claimantsrespondents holding that the accident was a
result of rash and negligent driving of the
driver of the Gas Tanker bearing No. U.P.
17 AT 1890 which led to the death of
Arunima Chandra. It also found that the
vehicle had the requisite fitness certificate,
permit and the Insurance Policy which was
valid for the relevant period. While dealing
with issue no. 3, it held that the license of
the driver was valid and since the accident
was not caused by the hazardous goods,
thus, the liability of the insurer could not be
absolved and thereafter considering the
issue of compensation, it allowed the claim
petition awarding a sum of Rs. 18.69,280/-
to the claimants-respondents no. 1 to 4
along with 7% interest per annum.

15. It is this award which is under
challenge in the instant appeal on the
grounds
which
have
been
noticed
hereinabove.

16. The only issue which requires
consideration is whether the driving license
of the respondent no. 5 was valid and as he
was driving a Gas Tanker then whether the
5 All. United India Insurance Co. Ltd., Lucknow Vs. Smt. Sheela & Ors.
153
license
ought
to have
the
requisite
endorsement authorizing him to drive a
vehicle of transportation of hazardous
goods and in absence thereof whether the
award could be fastened on the Insurance
Company.

17. In order to answer the aforesaid
issue, it will be appropriate to take a glance
at the relevant sections as well as the rules
as framed under the Motor Vehicles Act,
1988 and the Central Motor Vehicle Rules,
1989. The relevant sections are reproduced
as under:-

"Section 3. Necessity for driving
licence.--(1) No person shall drive a motor
vehicle in any public place unless he holds
an effective driving licence issued to him
authorising him to drive the vehicle; and no
person shall so drive a transport vehicle
[other than a motor cab or motor cycle]
hired for his own use or rented under any
scheme made under sub-section (2) of
Section 75] unless his driving licence
specifically entitles him so to do.

(2) The conditions subject to
which sub-section (1) shall not apply to a
person receiving instructions in driving a
motor vehicle shall be such as may be
prescribed by the Central Government.

-------******------------****-------
-****-------------***-------***

Section 14. Currency of licences
to drive motor vehicles.--(1) A learner's
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: 1[***]

2[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;

(b) x x x

(I) x x x

(A) x x x

(B) x x x

x x x

x x x

-------******------------****-------
-****-------------***-------***

Section 56. Certificate of fitness
of transport vehicles.--(1) Subject to the
provisions of sections 59 and 60, a
transport vehicle shall not be deemed to be
validly registered for the purposes of
section 39, unless it carries a certificate of
fitness in such form containing such
particulars and information as may be
prescribed by the Central Government,
issued by the prescribed authority, or by an
authorized testing station mentioned in subsection (2), to the effect that the vehicle
complies for the time being with all the
requirements of this Act and the rules made
thereunder: Provided that where the
prescribed authority or the "authorized
testing station" refuses to issue such
certificate, it shall supply the owner of the
vehicle with its reasons in writing for such
refusal.

(2) x x x

(3) x x x

(4) x x x

(5) x x x

-------******------------****-------
-****-------------***-------***

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
154 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

-------******------------****-------
-****-------------***-------***

Section 147. Requirements of
policies and limits of liability. --(1) In
order to comply with the requirements of
this Chapter, a policy of insurance must be
a policy which--

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

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

(i) against any liability which
may be incurred by him in respect of the
death of or bodily 27 [injury to any person,
including owner of the goods or his
authorised representative carried in the
vehicle] or damage to any property of a
third party caused by or arising out of the
use of the vehicle in a public place;

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

Provided that a policy shall not
be required--

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

(a)
engaged
in driving
the
vehicle, or

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

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

(ii) to cover any contractual
liability.

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

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

(a) save as provided in clause (b),
the amount of liability incurred;
5 All. United India Insurance Co. Ltd., Lucknow Vs. Smt. Sheela & Ors.
155

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

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

(3) x x x

(4) x x x

(5)
Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons.
9. Educational qualifications for drivers
of goods carriages carrying dangerous or
hazardous goods:-[(1) One year from the
date of commencement of Central Motor
Vehicles (Amendment) Riles, 1993, any
person driving a goods carriage carrying
goods of dangerous or hazardous nature to
human life shall, in addition to being the
holder of a driving licence to drive a
transport vehicle, also has the ability to
read and write at least one Indian language
out of those [specified in the VIII Schedule
of the Constitution] and English and also
possess a certificate of having successfully
passed a course consisting of following
syllabus and periodicity connected with the
transport of such goods:-

___________________________________
Period of training
3 days
Place of training
At
any
institute
recognised by the State Government
Syllabus
----------------------------------------------------
A. Defensive driving
Questionnaire Duration of training for
A & B -1st and 2nd day

Cause of accidents
Accidents, statistics
Driver's personal fitness
Car condition
Braking distance
Highway driving
Road/Pedestrian crossing
Railway crossing
Adapting to weather
----------------------------------------------------
Head-on collision
Read-end- collision
Night driving
Films and discussion
----------------------------------------------------
B. Advanced driving skills and training
(i) Discussion
Before starting
-----Check list
----Outside/below/near vehicle
-----product side
----inside vehicle
----------------------------------------------------
During driving -----Correct speed/gear
-----Signalling
----lane control
----overtaking/giving side
-----speed limit/safe distance
-----driving on slopes

Before stopping condition
 ---- Safe stopping place, signaling, road
width,

After
stopping
----preventing
vehicle
movement
----wheel clocks
-----vehicle attendance

[Night
driving
---mandatory
lightning
requirements
156 INDIAN LAW REPORTS ALLAHABAD SERIES
-----headlamp alignment
-----use of dipped beam]

(ii) Field test/training ----1 driver at a time
----------------------------------------------------
C. Product safety Duration
-----Un classification of training
UN Panel -----Hazchem Code for (C)
----Toxicity for (C) Third day
-----flammability
------other definitions

Product Information -----Tremcards
------CIS/MSDS
------Importance of temperature
Pressure, level
-----Explosive limits
-----Knowledge about equipment

Emergency Procedure -----Communication
----- Spillage handling
-----Use of PPE
---- Fire fighting
-----First Aid
----Toxic release control
-----Protection of wells, rivers, lakes, etc.
-----Use of protective equipment
------Knowledge about walves etc.
----------------------------------------------------
(2) The holder of a driving license
possessing
the
minimum
educational
qualification or the certificate referred to in
sub-rule (1), shall make an application in
writing on a plain paper along with his
driving license and the relevant certificate
to the licensing authority in whose
jurisdiction he resides for making necessary
entries in his driving license and if the
driving license is in Form 7, the application
shall be accompanied by the fee [ as
specified in the Table in rule 32].

(3) The licensing authority, on
receipt of the application referred to in subrule (2), shall make an endorsement in the
driving licence of the applicant to the effect
that he is authorised to drive a goods
carriage carrying goods of dangerous or
hazardous nature to human life.

(4) A licensing authority other
than the original licensing authority making
any such endorsement shall communicate
the fact to the original licensing authority.

Rule 132. Responsibility of the
transporter or owner of goods carriage.--
(1) x x x

(2) x x x

(3) x x x

(4) x x x

(5) It shall be the duty of the
owner to ensure that the driver of the goods
carriage carrying dangerous or hazardous
goods holds a driving licence as per
provisions of rule 9 of these rules."

18. From the conjoint reading of the
aforesaid provisions, it is clear that insofar
as the heavy goods motor vehicles is
concerned, the licence issued to such a
person is valid for a period of three years.
However, where a driver is driving a
transport vehicle carrying hazardous goods,
for such vehicles, the driver must possess a
separate
endorsement
and
the
said
endorsement has to be renewed from time
to time on an application made by the
driver concerned as per the provisions and
rules framed under the Act of 1988."

19. Having taken a look at the relevant
provisions, now it will be appropriate to
take a look at the license which was placed
on record by the respondent no. 5 along
with documents list bearing Paper No. C17/1.

20. From the perusal of the aforesaid
driving license, it would indicate that the
driving
license
bearing
U.P.
86
20130003803 was issued in the name of
Rajesh Kumar Son of Chhatrapal on
5 All. United India Insurance Co. Ltd., Lucknow Vs. Smt. Sheela & Ors.
157
03.07.2013 and was valid till 02.07.2033
and it also indicates that Rajesh Kumar was
authorized to drive, a light motor vehicle
and MCWG (motor vehicles with gear).
The driver is also authorized to drive a
transportation
vehicle,
however,
this
endorsement
was
effective
from
22.09.2014. The said driving license has
been issued from the office of R.T.O.
Hathras, in the State of U.P.

21. From the perusal of the aforesaid
documents it does not indicate that there is
any
endorsement
for
driving
a
transportation vehicle carrying hazardous
goods as required in terms of Section 14 of
the Act 1988 read with Rules 9 and 132
framed under the Central Motor Vehicles
Rules, 1989. Thus, from the above, it
would be clear that there is no dispute
regarding the fact that the driver was
authorized to drive a transportation vehicle,
however, there is nothing on record to
indicate that he was also permitted to drive
a
transportation
vehicle
carrying
dangerous/hazardous goods. Tankers which
carry petrol, gas and other inflammable
articles and are permitted to transport such
commodities and ply on public roads, the
law has formulated certain rules and
provisions and only after complying with
the same, a vehicle of such category can be
driven by a person authorized as per law.
The authority or the license to drive a
vehicle in a public place is in compliance
of the statutory requirement under the
Motor Vehicles Act, 1988. A person is
entitled to compensation in terms of
Section 166 of the Motor Vehicles Act
only after establishing that the driver of
the offending vehicle was rash and
negligent whereas the issue as to who is
liable to satisfy the award depends on the
condition primarily it is the owner and
the driver who is responsible but in view
of the insurance cover in terms of
Chapter 11 of the Motor Vehicles Act,
1988, the liability is indemnified by the
Insurance Company in terms of Section
149 of the Motor Vehicles Act, 1988.

22. Thus, it would be seen that there
can be two separate situations; i) where a
person may be negligent in driving but at
the same time, he must be authorized to
drive a particular type of vehicle in
accordance with law and the other
situation can be where a driver may not
be negligent per-se, while driving, but an
accident may occur on account of use of
the said motor vehicle but even then the
driver must not be authorized to drive
that particular category vehicle;

(ii) The occurrence of an motor
accident and the validity of the driving
license will impact the liability of the
Insurance Company and this aspect has
been considered in detail by the Apex
Court in National Insurance Company
Vs. Swaran Singh (2004) 3 SCC 297.

23.
Whereas
the
contract
of
Insurance between the insured and the
insurance
company
is
based
on
'Uberrima fides'. It is a contract which
has to be complied with in its letter and
spirit.

24. Taking note of the aforesaid aspect
of the matter and noticing that the driver of
the offending gas tanker did not possess the
requisite endorsement to drive or use the
heavy goods vehicle carrying hazardous/
dangerous goods, indicates that law did not
authorize him to drive the said vehicle in a
public place. The owner of the gas tanker
permitted a person to use the said heavy
goods
vehicle
carrying
hazardous/
dangerous goods in the public space in
158 INDIAN LAW REPORTS ALLAHABAD SERIES
violation of the law and it is per se violative
of the policy condition.

25. The manner in which the accident
occurred may not be necessary to absolve
the owner of his liability, but this aspect of
the matter has been taken note of by the
Coordinate Bench of this Court in the case
of Gautam Filling Station Vs. Munnu
Singh & Another; 2016 (34) LCD 1669. In
Paragraphs 26 and 27, it has been held as
under:-

"26.
Thus,
if
the
statutory
requirements as noted above are ignored or
diluted on the basis of fact of the case or
the factum of accident, say that the driver
of the vehicle was admittedly negligent and
the insurance company is not permitted to
raise the defence that such statutory
requirements were not fulfilled, it would
amount to nullifying the limited protection
granted to the insurance company under
section 149 of the Act of 1988.

27. In such view of the matter, in
my opinion, section 149 provides for
statutory
protection
available
to
the
company, which clearly shows that no sum
shall be payable by the insurer under subsection (1) in respect of any judgment or
award and the insurer can defend the
action on the ground as provided under
section 149 which also includes that it can
avoid its liability if the person driving the
vehicle was not duly licensed. For this
purpose,
needless
to
say
that
the
requirement of section 3 and section 14 of
the Act of 1988 and Rule 9 and Rule 132(5)
of the Central Motor Vehicles Rules, 1989,
which have already been noted above and
need no repetition, are to be fulfilled or
complied with for holding a valid licence."

26. The learned counsel for the
appellant has also relied upon a Division
Bench of this Court in the case of Sibbal
Singh Vs. The United India Insurance Co.
Ltd.,, F.A.F.O. (Defective) No. 378 of
2010, decided on 13.08.2012, however,
from the perusal of the aforesaid decision,
it appears that in case of Sibbal Singh
(Supra), though, it does not deal with all
the provisions of law yet it also arrives at
the same conclusion as noticed in the case
of Gautam Filling Station (supra).

27. This Court in United India
Insurance Company Ltd. Vs.Smt. Vimla
Devi and others; F.A.F.O. No. 845 of 2006
decided on 27.07.2021 ( 2021 Latest case
Law 8677 ALL) had the occasion to
consider a similar issue and wherein after
taking note of the earlier decisions, it
arrived at a finding that even though the
driver had a license but since it did not
have the requisite endorsement as provided
in the Motor Vehicles Act permitting the
driver to drive a transportation vehicle
carrying
dangerous/hazardous
goods,
hence, the Court partly allowed the appeal
and granted the recovery rights to the
Insurance Company.

28. Considering the ratio laid in the
case of Gautam Filling Station (Supra)
and Vimla Devi (Supra) and applying the
principles to the facts of the instant case, it
would be clear as the day that though the
respondent no. 5, the driver of the Gas
tanker
was
authorized
to
driver
a
transportation vehicle but there is no
evidence to suggest that he had the
authorization to drive a transport vehicle
carrying hazardous/dangerous goods. It is
also not disputed by the learned counsel for
the respondents nos. 5 and 6 Sri Firoz
Ahmad Khan that on the relevant date
when the accident occurred i.e. 29.07.2017,
the driver did not possess any such
authorization
nor
there
was
any
5 All. United India Insurance Co. Ltd., Lucknow Vs. Smt. Sheela & Ors.
159
endorsement to the aforesaid effect of his
license. No such material has been brought
to the notice of this Court nor it finds place
in the records of the Tribunal below. Thus,
it can safely be concluded that the driving
license of the Gas driver of the gas tanker
did not authorize him to driver a transport
vehicle
carrying
dangerous/hazardous
goods.

29. Now, the issue arises as to whether
the Insurance Company can absolve itself
of its liability, however, this is settled in
light of the decision of the Constitution
Bench in Swaran Singh (supra) where the
Apex Court considering the various types
of discrepancies in the driving license and
how the matter is to be dealt with has been
considered in detail and the relevant
portion thereof read as under:-

"110. The summary of our
findings to the various issues as raised in
these petitions is as follows:

"(i) Chapter XI of the Motor
Vehicles Act, 1988 providing compulsory
insurance of vehicles against third-party
risks is a social welfare legislation to
extend relief by compensation to victims of
accidents caused by use of motor vehicles.
The provisions of compulsory insurance
coverage of all vehicles are with this
paramount object and the provisions of the
Act have to be so interpreted as to
effectuate the said object.

(ii) An insurer is entitled to raise
a defence in a claim petition filed under
Section 163-A or Section 166 of the Motor
Vehicles Act, 1988, inter alia, in terms of
Section 149(2)(a)(ii) of the said Act.

(iii)
The
breach
of
policy
condition e.g. disqualification of the driver
or invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of
Section 149, has to be proved to have been
committed by the insured for avoiding
liability by the insurer. Mere absence, fake
or
invalid
driving
licence
or
disqualification of the driver for driving at
the relevant time, are not in themselves
defences available to the insurer against
either the insured or the third parties. To
avoid its liability towards the insured, the
insurer has to prove that the insured was
guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling
the condition of the policy regarding use of
vehicles by a duly licensed driver or one
who was not disqualified to drive at the
relevant time.

(iv)
Insurance
companies,
however, with a view to avoid their liability
must not only establish the available
defence(s) raised in the said proceedings
but must also establish "breach" on the
part of the owner of the vehicle; the burden
of proof wherefor would be on them.

(v) The court cannot lay down
any criteria as to how the said burden
would be discharged, inasmuch as the same
would
depend
upon
the
facts
and
circumstances of each case.

(vi) Even where the insurer is
able to prove breach on the part of the
insured concerning the policy condition
regarding holding of a valid licence by the
driver or his qualification to drive during
the relevant period, the insurer would not
be allowed to avoid its liability towards the
insured unless the said breach or breaches
on the condition of driving licence is/are so
fundamental
as
are
found
to
have
contributed to the cause of the accident.
The Tribunals in interpreting the policy
conditions would apply "the rule of main
purpose" and the concept of "fundamental
breach" to allow defences available to the
insurer under Section 149(2) of the Act.

(vii) The question, as to whether
the owner has taken reasonable care to find
160 INDIAN LAW REPORTS ALLAHABAD SERIES
out as to whether the driving licence
produced by the driver (a fake one or
otherwise), does not fulfil the requirements
of law or not will have to be determined in
each case.

(viii) If a vehicle at the time of
accident was driven by a person having a
learner's licence, the insurance companies
would be liable to satisfy the decree.

(ix)
The
Claims
Tribunal
constituted under Section 165 read with
Section 168 is empowered to adjudicate all
claims in respect of the accidents involving
death or of bodily injury or damage to
property of third party arising in use of
motor vehicle. The said power of the
Tribunal is not restricted to decide the
claims inter se between claimant or
claimants on one side and insured, insurer
and driver on the other. In the course of
adjudicating the claim for compensation
and to decide the availability of defence or
defences to the insurer, the Tribunal has
necessarily the power and jurisdiction to
decide disputes inter se between the insurer
and the insured. The decision rendered on
the claims and disputes inter se between the
insurer and insured in the course of
adjudication of claim for compensation by
the claimants and the award made thereon
is enforceable and executable in the same
manner as provided in Section 174 of the
Act for enforcement and execution of the
award in favour of the claimants.

(x) Where on adjudication of the
claim under the Act the Tribunal arrives at
a
conclusion
that
the
insurer
has
satisfactorily
proved
its
defence
in
accordance with the provisions of Section
149(2) read with sub-section (7), as
interpreted by this Court above, the
Tribunal can direct that the insurer is liable
to be reimbursed by the insured for the
compensation and other amounts which it
has been compelled to pay to the third
party under the award of the Tribunal. Such
determination of claim by the Tribunal will
be enforceable and the money found due to
the insurer from the insured will be
recoverable on a certificate issued by the
Tribunal to the Collector in the same
manner under Section 174 of the Act as
arrears of land revenue. The certificate will
be issued for the recovery as arrears of
land revenue only if, as required by subsection (3) of Section 168 of the Act the
insured fails to deposit the amount awarded
in favour of the insurer within thirty days
from the date of announcement of the
award by the Tribunal.

(xi) The provisions contained in
sub-section (4) with the proviso thereunder
and sub-section (5) which are intended to
cover specified contingencies mentioned
therein to enable the insurer to recover the
amount paid under the contract of
insurance on behalf of the insured can be
taken recourse to by the Tribunal and be
extended to claims and defences of the
insurer against the insured by relegating
them to the remedy before regular court in
cases
where
on
given
facts
and
circumstances adjudication of their claims
inter se might delay the adjudication of the
claims of the victims."

30. In light of the aforesaid decision of
Swaran Singh (supra) it would be clear
that the Insurance Company cannot absolve
its liability absolutely, however, though, the
driver had a license, hence, the award is to
be satisfied by the Insurance Company qua
the claimant-respondent but the appellantinsurance company is entitled to recover
the amount from the owner of the offending
vehicle (insured).

31. In view of the aforesaid detailed
discussions, this Court is of the clear view
that the Tribunal has erred in deciding issue
5 All. Smt. Ram Beti & Anr. Vs. Suresh Chandra & Ors.
161
no. 3 and fastening the entire liability on
the Insurance Company without granting
the right of recovery to the insurer.

32. In view of the aforesaid, the award
dated 18.11.2021 in so far as it relates to all
the findings including the quantum is
affirmed with the modification that the
Insurance Company shall indemnify the
award and shall be at liberty to recover the
same from the respondent no. 5 who is the
owner
of
the
offending
vehicle
in
accordance with law as provided in
Oriental
Insurance
Company
Ltd.
Vs.Nanjappan and Others; (2004) 13 SCC
224. Subject to the aforesaid, the award
dated 18.11.2011 is maintained. The appeal
is partly allowed in the aforesaid terms. In
the aforesaid facts and circumstances, there
shall be no order as to costs. The record of
the Tribunal shall be returned expeditiously.
----------
(2023) 5 ILRA 161
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

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

First Appeal From Order No. 303 of 1995

Smt. Ram Beti & Anr. ...Appellants
Versus
Suresh Chandra & Ors. ...Respondents

Counsel for the Appellants:
Sri P.K. Saxena, Sri S.C. Kesarwani

Counsel for the Respondents:
Sri S. Kumar, Sri Sushil Kumar Mehrotra,
Sri Swapnil Kumar

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176 - challenge to-enhancement
of claim- deceased died leaving behind his
wife and children-The tribunal awarded a
sum of Rs. 61,160/- as compensation with
interest at the rate of 12% per annum and
has not granted future loss of income-The
claimants
are
entitled
to
40%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998-Total compensation would be Rs.
3,32,400/- and rate of interest would be
7.5% from the date of filing the claim
petition till the award and 6% thereafter -
the insurance company shall deposit the
amount within 8 weeks. (Para 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. NICL Vs Pranay Sethi & ors. (2017) LawSuit
SC 1093

2. Smt. Sarla Verma Vs DTC (2009) 6 SCC 121

3. NICL Vs Pranay Sethi (2014) 4 TAC 637 SC

4. Smt. Sarla Verma Vs DTC (2009) 2 TAC 677
SC

5. Kurvan Ansari @ Kurvan Ali & anr.. Vs Shyam
Kishore Murmu & anr. (2021) 4 TAC SC

6. A.V. Padma Vs Venugopal (2012) 1 GLH SC
442

7. Smt. Hansaguri P. Ladhani Vs OICL (2007) 2
GLH 291

8. Bajaj Allianz Gen. Ins. Co. Pvt. Ltd. Vs UOI &
ors.
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. By way of this appeal, the
appellants has challenged the judgment and
order dated 12.12.1994/14.12.1994 passed
by Motor Accident Claims Tribunal / IIIrd
Additional District Judge, Etah (hereinafter
referred to as ''Tribunal') in M.A.C.P. No.
115 of 1992 (Smt. Ram Beti and another
Vs. Suresh Chandra and others) awarding a
sum of Rs. 61,160/- as compensation to the