L) IN THE ffiGH COURT OF JUDICATURE AT BIL^SPURfC.G.t M.A(C) No...^. .^(. 0^2007 fAPPEAL VALUED AT Rs.2.42.000 /-) APPEAL UNDER SECTION 173 OF THE MOTORVEmCLESACT. 1988. APPELANT (NON- APPUCANT ^0.3) ^ United India Insurance RBSPONDENTS tAPPLICANT ) ...•-:^T ^° (NON-APPLICANT N0.1) (^2. Company Limited, ThrougH: Its Branch Manager, Branch-Office^ Rajendra Nagar Chowk, Bila^pur^ Tah.S Distt.-Bilaspur(CG) VERSUS Kunjbihari Mishra,S/O-Shr;. Ramlakhan Mishra,aged-45 years, R/0-Loader Colony, Lafarge Cement, Gopal Nagar, Present Address- Muktidham Chowk, Behind Indane Gas Godown, Kapil Nagar Sarkanda, Bilaspur, P.S.-Sarkanda, Tah. & Distt»-Bilaspur (CG) Ghanshyam Kaushik, S/0- RamKhi1awan Kaushi k, aged- 32 years, R/0-Village- JRasauda,P,S.-Akaltara^ Distt^-Janjgir Chaxnpa{CG) (NON-APPLICANT NiO.2) :3. ^:' Shyamlal Kurmi, S/0- Ramkhilawan Kurmi^ R/0- Vill.-Parsada^P.O.Arjuni/ Distt.-Janjgir Champa(CG) h HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb Deshmukh. J. Miscellaneous Appeal (C.l No.44 of 2007 Appellant (Non-ApDlicant No.3l Respondents (Applicant) (Non-Applicant No.1l (Non-ApDlicant No.2l United India Insurance Company Limited, through its Branch Manager, Branch Office Rajendra Nagar Chowk, Bilaspur, Tah. & Distt. Bilaspur (C.G.) versus 1. Kunjbihari Mishra, S/o Shri Ramlakhan Mishra, Aged 45 Years, R/o Loader Colony, Lafarge Cement, Gopal Nagar, Present Address - Muktidham Chowk, Behind Indane Gas Godown, Kapil Nagar Sarkanda, Bilaspur, P.S. Sarkanda, Tah. & Distt. Bitaspur (C.G.) 2. Ghanshyam Kaushjk, , S/o Ramkhilawan Kaushik, aged 32 years, R/o Village Rasauda, P.S. Akaltara, Distt. Janjgir-Champa (C.G.) 3. Shyamlal Kurmi, S/o Ramkhilawan Kurmi, R/o Vill. Parsada, P.0. Arjuni, Distt. Janjgir-Champa (C.G.) Appeal under Section 173 ofthe Mbtor Vehicles Act. 1988 Present: Shri Dashrath Gupta, counsel for the appellant/insurer. Shri Gautam Khetrapal, counsel for respondent No.1. No one appears for other respondents. ORAL ORDER (Passed on this 26th day of February, 2008) Heard finally. (2) The only point that arises for determination in this appeal is whetherthe learned Additional Motor Accidents Claims Tribunal, Bilaspur (henceforth 'the Trjbunal') was justified in passing the award of pay and recover against the appellant/insurer after recording a finding that the driver of the offending vehicle did not possess a driving licence. f^r^~ f.'- (3) It is not in dispute in this appeal that respondent No.l/claimant, a pedestrian, who was knocked down by the Motor Cycle No.CG11B6166 driven by respondent No.2 is a third party, whose risk was statutorily covered by the insurer under the policy of insurance. (4) Respondent No.3, Shyamlal Kurmi, the owner of the offending vehicle Motor Cycle No.CG11B6166 and respondent No.2, Ghanshyam Kaushik, the driver did not contest the application filed by respondent No.l/claimant under Section 166 of the Motor Vehicles Act, 1988 (henceforth (the Act') for compensation on the ground of permanent disability suffered due to being hit by the motor cycle driven by Ghanshyam Kaushik. ^ (5) The Tribunal recorded a specific finding in paragraph 14 that Ghanshyam Kaushik, respondent No.2/driver of the offending vehicle did not possess a driving licence on the date of accident. Pacing reliance on New India Assurance Co. Ltd. vs. Jyotsna Patra and others, 2006 (1) TAC 502 (Orissa) and Smt. Pushpabai and others vs. Padumnath MalLand others, 2005 (5) MPHT 36 (Chhattisgarh) and considering the fact that the offending vehicle was insured by the appellant, it p^ssed an order of pay and recover against the appellant without recording any finding as to whether liability to pay compensation rested with the appellant/insurance company or not. (6) Shri Dashrath Gupta, learned counsel appearing for the appellant/insurer argued that the Tribunal had no jurisdiction to pass an order of pay and'recover against the insurer even in a case of third party risk having been cqvered by the insurer, if it was established that due to a fundamental breach of the essential condition of the policy, i.e., the ^ offending vehicle having been driven by a person not possessing a valid and effective driving licence the insurer could avoid liability under Section 149(2)(a)(ii) of the Act. Reliance was placed on United India Insurance Co. Ltd. vs. Anubai Gopichand Thakare and others, First Appeal No.827 of 2006 decided on 04-08-2007 in the High Court of Judicature at Bombay in which it was held that when a direction of pay and recover is given to meet the ends of justice by the Supreme Court of India, it is given in exercise of the extra-ordinary jurisdiction of the Apex Court under Articles 136 and 142 of the Constitution of India, which is not available to the tribunal or even the High Court. Reliance was also placed on a decision rendered by the Supreme Court in Sardari and others vs. Sushil Kumar and others, Appeal (Civil) No. 1,733 of 2008 on ^4-03-2008 arising out of S.L.P.(C.) No.199^65 of 2004. (7) On the other hand, Shri Gautam Khetrapal, tearned counsel appearing for respondent No.l/claimant placed heavy reliance on New India Assurance Co., Shimla vs. Kymla and others, AIR 2001 SC 1419, National Insurance Co. Ltd. vs- Swaran Singh and others, (2004) 3 SCC 297 and National Insurance Co. Ltd. vs. Laxmi Narain Dhut, (2007) 3 SCC 700 while contending that the Supreme Court has, in those cases, upheld the jurisdiction of the tribunal to 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 tribunal. Since in the present case, there is no dispute that respondent No.l/claimant was a third party being a pedestrian, who was dashed by the offending vehicle driven by respondent No.2, the Tribunal had jurisdiction to order the insurer, which >was under a statutory liability to cover the risk of the claimant being a ^ third party, to first pay and recover from the owner the compensation awarded by the Tribunal despite recording a finding that respondent No.2, i.e., the driver of the offending vehicle did not possess any driving licence. ^^ \^»^i (8) Having considered rival submissions, 1 have perused the record. Section 149 of the Act, which casts a duty on the insurer to satisfy judgments and awards against persons insured in respect of third-pari:y risks, reads as under: "Sec. 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, judgment or award in respect of any such liability as is required 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 persoh 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 payabte thereunder, as if he were the judgment- debtor, in respect of the liability, together with fe any amountpayable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insur^r 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 oh any of the following grounds, namely:- ^^^ A ^,^^" (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; br (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. (3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a ^•f-^^^S:^ :^^^. ^.^'^ ^1.^ t"^i ^^-y./ ";^. y ^ ^•1"- foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub- section (1), as if the judgment were given by a Court in India: Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2). (4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any-condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub- section (1) of section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liab.Ie 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, respectivefy a fact or particular of such a nature as to influence the judgment of a prudent ^ r:: insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy. (7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled'to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub- section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be. Explanation. - For the purposes of this section, "Claims Tribunal" means a Claims Tribunal constituted under section 165 .and "award" means an award made by that Tribunal undersection 168." (9) In Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan, (1987) 2 SCC 654, it was observed by the Supreme Court that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the Insurance Company but to protect the members of the community who become sufferers on account of accidents arising from use of motor vehicles. It is pointed out in the decision that such protection would have remained only a paper protection if the compensation awarded by the Courts were not recoverable by the victims (or dependents of the victims) of the accident. This is the raison d'etre for the legislature making it prohibitory for motor vehicles being used in public places without covering third party risks by a policy of insurance. Any contract of insurance under Chapter XI of the Act, contemplates a third party who is not a signatory or a party to the ^^ contract of insurance but is, nevertheless, protected by such contract. As pointed out by the Supreme Court in New Asiatic Insurance Co. Ltd. vs. Pessumal Dhanamal Aswani, AIR 1964 SC 1736, the riahts of the third party to aet indemnified canbe exercised onlv aaainst the insurer of the vehicle {emohasis supRlied bv me). (10) In New India Assurance Co; Shimla vs. Kamla and others (supra), dealing with a similar situation of renewal of a fake driving licence and breach of insurance policy conditions on account of vehicle being driven without a valid driving licence, the Supreme Court observed in paragraphs 19 to 22 and held in paragraph 25 as under: hl«»^- "19. Sub-section (4) of S. 149 of the Act says that sa much of the policy as purports to restrict the insurance of the person insured by reference to any condition shall "as respects such liabilities as are required to be covered by a policy, be of no effect." The proviso to the said sub-section is important for the purpose of considering the question involved in this case and hence that proviso is extracted below: "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 insurerfrom that person." 20. Similarly, in this context sub-section (5) is equ'ally important and hence that is also extracted below: "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." 21. , A reading of the proviso to sub-section (4) as well as the language employed in sub-section (5) would indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for thev provisions contained in Chapter XI of the Act. This means,\the insurer has to pay to the third parties only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to ^'la:^,^' "s"^^€^v ^l ^-^* recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue ofthe conditions ofthe contract of insurance indicated bythe policy. 22. To repeat, the effect of the above provisions is this : When a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to third parties, whether or not there has been any breach or violation of the policy conditions. But the amount.so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured. 25. The position can be summed up thus : The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditidns on account of the vehicle being driven without a valid licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants - third parties) from the insured person." ^ (11) \n National Insurance Co. Ltd. vs. Swaran Singh and others (supra), the Supreme Court was considering a situation in which a claim for compensation was made by a third party and the liability of the insurer under Sections 147(1) and 149(2) of the Act to pay compensation under its statutory liability to satisfy the award passed by the tribunal was in question. In paragraph 110, the summary of findings of the Supreme Court to the various issues raised in the petitions were as under: 10 lyo "(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)ofthesaidAct. (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence ofthe 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 ekercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driveror 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 <?ach 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) ofthe Act. (vii) The question, as to whether the owner has taken reasonable^care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not 11 ^ h-NN^- fulfill the requirements bf 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. Apt 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 pav to the third partv under the award of the Tribunal lemphasis supDlied bv me). 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 arrearsof land revenue only if, as required by sub-section (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