SUSHILA AGGARWAL & ORS. versus STATE (NCT OF DELHI) & ANR.
[2018] 6 S.C.R. 825, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Body
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SUSHILA AGGARWAL & ORS.
v.
 STATE (NCT OF DELHI) & ANR.
(Special Leave Petition (Criminal) Nos. 7281-7282 of 2017)
MAY 15, 2018
[KURIAN JOSEPH, MOHAN M. SHANTANAGOUDAR
AND NAVIN SINHA, JJ.]
Bail – Whether an anticipatory bail should be for a limited
period of time – There are two divergent views: One are the line of
Judgments in support that anticipatory bail should not be for a
limited period and the others are that orders of anticipatory bail
should be of a limited duration – In the light of the conflicting views
of the different Benches of varying strength, following questions
referred to the larger Bench: (i) Whether the protection granted to
a person u/s.438 Cr.P.C. should be limited to a fixed period so as to
enable the person to surrender before the trial Court and seek
regular bail; (ii) Whether the life of an anticipatory bail should end
at the time and stage when the accused is summoned by the Court –
Code of Criminal Procedure, 1973 – s.438.
Shri Gurbaksh Singh Sibbia and Others v. State of
Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 ;
Siddharam Satlingappa Mhetre v. State of Maharashtra
and Others (2011) 1 SCC 694 : [2010] 15  SCR 201 ;
Bhadresh Bipinbhai Sheth v. State of Gujarat and
Another (2016) 1 SCC 152 : [2015] 10  SCR 398 ;
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667 :  [1995]  6  Suppl.  SCR  556 ;  K.L.
Verma v. State and Another (1998) 9 SCC 348 ; Sunita
Devi v. State of Bihar and Another (2005) 1 SCC 608 :
[2004] 6  Suppl. SCR 707 ; Adri Dharan Das v. State
of W.B.  (2005) 4 SCC 303 : [ 2005] 2  SCR 188 ;
Nirmal Jeet Kaur v. State of M.P. and Another  (2004) 7
SCC 558 : [2004] 3  Suppl. SCR 1006 ; HDFC Bank
Limited v. J.J. Mannan (2010) 1 SCC 679 :  [2009] 16
SCR 590 ; Satpal Singh v. The State of Punjab (2018)
SCC Online SC 415 – referred to.
   [2018] 6 S.C.R. 825
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Case Law Reference
[1980] 3 SCR 383
   referred to
            Para 2
[2010] 15 SCR 201
               referred to
Para 3
[2015] 10 SCR 398
   referred to
Para 3
[1995]  6 Suppl. SCR 556
   referred to
Para 4
(1998) 9 SCC 348
   referred to
Para 4
[2004] 6 Suppl. SCR 707
   referred to
Para 4
[2005] 2 SCR 188
   referred to
Para 4
[2004] 3 Suppl. SCR 1006
   referred to
Para 4
[2009] 16 SCR 590
   referred to
            Para 5
CRIMINAL APPELLATE JURISDICTION : Special Leave
Petition (Criminal) No. 7281-7282 of 2017.
From the Order dated 02.08.2017 of the High Court of Delhi at
New Delhi in BA No. 1415 of 2017.
Vikramjit Banerjee, ASG, H. P. Raval, Sr. Adv., Ms.  Geetha
Luthra, Nipun Saxena, Aditya P. Arora, Ms. Divya Anand, Abhay Kumar,
Vineet Kumar Singh, Saurabh Mishra, Pranay Ranjan, C. K. Sucharita,
Sanjay Kr. Tyagi, Ayush Anand, Shubhendu Anand, Ms. Shruti Agarwal,
Ujjwal Jain, Prateek Yadav, B. V. Balaram Das, C. S. N. Mohan Rao,
Lokesh Kumar Sharma and B. Kranthi Kumar, Advs. for the appearing
parties.
The Order of the Court was passed by
KURIAN, J. 1. Whether an anticipatory bail should be for a
limited period of time is the issue before us on which there are two
divergent views.
2. The line of judgments that anticipatory bail should not be for a
limited period places its reliance on the Constitution Bench decision of
this Court in Shri Gurbaksh Singh Sibbia and others v. State of
Punjab1.
1(1980) 2 SCC 565
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3. Siddharam Satlingappa Mhetre v. State of Maharashtra
and others2  is a very detailed judgment by a Bench of two Judges on
the scope and object of an anticipatory bail. In Mhetre (supra), this
Court took the view that the Constitution Bench has held that anticipatory
bail granted by the court should ordinarily continue till the trial of the
case.  To quote:
     “94. The proper course of action ought to be that after
evaluating the averments and accusation available on the record
if the court is inclined to grant anticipatory bail then an interim bail
be granted and notice be issued to the Public Prosecutor. After
hearing the Public Prosecutor the court may either reject the bail
application or confirm the initial order of granting bail. The court
would certainly be entitled to impose conditions for the grant of
bail. The Public Prosecutor or the complainant would be at liberty
to move the same court for cancellation or modifying the
conditions of bail any time if liberty granted by the court is misused.
The bail granted by the court should ordinarily be continued till the
trial of the case.
       95. The order granting anticipatory bail for a limited duration
and thereafter directing the accused to surrender and apply for a
regular bail is contrary to the legislative intention and the judgment
of the Constitution Bench in Sibbia case.”
  (Emphasis supplied)
The decision in Mhetre was recently followed in Bhadresh
Bipinbhai Sheth v. State of Gujarat
and another3.
4. The other line of judgments is that orders of anticipatory bail
should be of a limited duration.  Salauddin Abdulsamad Shaikh v.
State of Maharashtra4  is one of the earlier decisions of a three Judge
Bench. True, there is no reference to the Constitution Bench in Sibbia’s
case (supra). However, discussing the concept of anticipatory bail, this
Court took the view that :-
“2. Under Section 438 of the Code of Criminal Procedure when
any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, the High
 2 (2011) 1 SCC 694
3 (2016) 1 SCC 152
4 (1996) 1 SCC 667
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Court or the Court of Session may, if it thinks fit, direct that in the
event of such arrest, he shall be released on bail and in passing
that order, it may include such conditions having regard to the
facts of the particular case, as it may deem appropriate.
Anticipatory bail is granted in anticipation of arrest in non-bailable
cases, but that does not mean that the regular court, which is to
try the offender, is sought to be bypassed and that is the reason
why the High Court very rightly fixed the outer date for the
continuance of the bail and on the date of its expiry directed the
petitioner to move the regular court for bail. That is the correct
procedure to follow because it must be realised that when the
Court of Session or the High Court is granting anticipatory bail, it
is granted at a stage when the investigation is incomplete and,
therefore, it is not informed about the nature of evidence against
the alleged offender. It is, therefore, necessary that such
anticipatory bail orders should be of a limited duration only and
ordinarily on the expiry of that duration or extended duration the
court granting anticipatory bail should leave it to the regular court
to deal with the matter on an appreciation of evidence placed
before it after the investigation has made progress or the charge-
sheet is submitted.
3. It should be realised that an order of anticipatory bail could
even be obtained in cases of a serious
nature as for example
murder and, therefore, it is essential that the duration of that order
should be limited and ordinarily the court granting anticipatory bail
should not substitute itself for the original court which is expected
to deal with the offence. It is that court which has then to consider
whether, having regard to the material placed before it, the accused
person is entitled to bail.”
This view has also been followed in K.L. Verma v. State and
another5, Sunita Devi v. State of Bihar and another6, Adri Dharan
Dasv. State of W.B.7. In K.L. Verma (supra), after referring to
Salauddin (supra), this Court held as follows:
“3. We have carefully examined both the orders of 9-10-1996
and 11-10-1996 and have also heard counsel for the accused as
5 (1998) 9 SCC 348
6 (2005) 1 SCC 608
7 (2005) 4 SCC 303
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well as counsel for the CBI and we are of the opinion that the
proper course for the High Court was to decide on the question of
the requirement of sanction and if the High Court could not do so,
to have stayed further proceedings till that vital question was
answered. On the other question emanating from the order dated
9-10-1996, we find that the High Court placed reliance on this
Court’s decision in Salauddin Abdulsamad Shaikh v. State of
Maharashtra which was a case in which the High Court, while
granting interim anticipatory bail, imposed certain conditions, one
of which was that the accused should move for regular bail before
the Court which was in seisin of the case pending against him.
The High Court also observed that the application should be
disposed of uninfluenced by the observations made in the earlier
order. The special leave petition was directed against that order
of the High Court. While dealing with that order, this Court
observed that under Section 438 of the Code, when any person
has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, the High Court or the
Court of Session may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail and in passing that order,
it may include such conditions as it may deem appropriate. This
Court further observed that anticipatory bail is granted in
anticipation of arrest in non-bailable cases, but that does not mean
that
the regular court, which is to try the offender, is sought to be
bypassed. It was, therefore, pointed out that it was necessary
that such anticipatory bail orders should be of a limited duration
only and ordinarily on the expiry of that duration or extended
duration the court granting anticipatory bail should leave it to the
regular court to deal with the matter on an appreciation of evidence
placed before it after the investigation has made progress or the
charge-sheet is submitted. By this, what the Court desired to
convey was that an order of anticipatory bail does not enure till
the end of trial but it must be of limited duration as the regular
court cannot be bypassed. The limited duration must be determined
having regard to the facts of the case and the need to give the
accused sufficient time to move the regular court for bail and to
give the regular court sufficient time to determine the bail
application. In other words, till the bail application is disposed of
one way or the other the court may allow the accused to remain
SUSHILA AGGARWAL & ORS. v. STATE (NCT OF DELHI)
[KURIAN, J.]
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on anticipatory bail. To put it differently, anticipatory bail may be
granted for a duration which may extend to the date on which the
bail application is disposed of or even a few days thereafter to
enable the accused persons to move the higher court, if they so
desire. This decision was not intended to convey that as soon as
the accused persons are produced before the regular court the
anticipatory bail ends even if the court is yet to decide the question
of bail on merits. The decision in Salauddin case has to be so
understood.”
In Nirmal Jeet Kaur v. State of M.P. and another8, K.L.
Verma (supra) in so far as it stated that “...or even a few days thereafter
to enable the accused persons to move the higher court, if they so
desire ...” was held to be in conflict with the statutory requirement under
Section 439. To quote:
    “13. The grey area according to us is the following part of the
judgment in K.L. Verma case “or even a few days thereafter to
enable the accused persons to move the higher court, if they so
desire”.
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      20. In Salauddin case also this Court observed that the regular
court has to be moved for bail. Obviously, an application under
Section 439 of the Code must be in a manner in accordance with
law and the accused seeking remedy under Section 439 must
ensure that it would be lawful for the court to deal with the
application. Unless the applicant is in custody his making
application
only under Section 439 of the Code will not confer jurisdiction on
the court to which the application is made. The view regarding
extension of time to “move” the higher court as culled out from
the decision in K.L. Verma case shall have to be treated as having
been rendered per incuriam, as no reference was made to the
prescription in Section 439 requiring the accused to be in custody.
In State v. Ratan Lal Arora it was held that where in a case the
decision has been rendered without reference to statutory bars,
the same cannot have any precedential value and shall have to be
treated as having been rendered per incuriam. The present case
stands at par, if not, on a better footing. The provisions of Section
439 do not appear to have been taken note of.
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      23. If the protective umbrella of Section 438 is extended
beyond what was laid down in Salauddin case the result would
be clear bypassing of what is mandated in Section 439 regarding
custody. In other words, till the applicant avails remedies up to
higher courts, the requirements of Section 439 become dead letter.
No part of a statute can be rendered redundant in that manner.”
5. This Court in HDFC Bank Limited v. J.J. Mannan9 has
referred to a contention  based on the Constitution Bench decision in
Sibbia (supra) and yet it has taken the view that the protection under
Section 438 is only till the investigation is completed and chargesheet is
filed. To quote paragraphs 14 and 18 to 20 :-
   “14. Referring to the decision of the Constitution Bench in
Gurbaksh Singh Sibbia v. State of Punjab, wherein the
application of Section 438 CrPC had been considered in detail,
Mr Dutta submitted that the said provision had been interpreted
to be a beneficent provision relating to personal liberty guaranteed
under Section 21 of the Constitution. Mr Dutta submitted that the
Constitution Bench had observed that since denial of bail amounts
to deprivation of personal liberty, the court should lean against the
imposition of unnecessary restrictions on the scope of Section
438 CrPC.
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     18. Furthermore, it has also been consistently indicated that
no blanket order could be passed under Section 438 CrPC
to
prevent the accused from being arrested at all in connection with
the case. To avoid such an eventuality it was observed in Adri
Dharan Das case that anticipatory bail is given for a limited
duration to enable the accused to surrender and to obtain regular
bail. The same view was reiterated in Salauddin case wherein it
was, inter alia, observed that anticipatory bail should be of limited
duration only and primarily on the expiry of that duration or
extended duration, the court granting anticipatory bail should leave
it to the regular court to deal with the matter on an appreciation of
evidence placed before it after the investigation has made progress
or the charge-sheet is submitted.
9(2010) 1 SCC 679
SUSHILA AGGARWAL & ORS. v. STATE (NCT OF DELHI)
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19. The object of Section 438 CrPC has been repeatedly explained
by this Court and the High Courts to mean that a person should
not be harassed or humiliated in order to satisfy the grudge or
personal vendetta of the complainant. But at the same time the
provisions of Section 438 CrPC cannot also be invoked to exempt
the accused from surrendering to the court after the investigation
is complete and if charge-sheet is filed against him. Such an
interpretation would amount to violence to the provisions of Section
438 CrPC, since even though a charge-sheet may be filed against
an accused and charge is framed against him, he may still not
appear before the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of
investigation and provides a mechanism for an accused to be
released on bail should he be arrested during the period of
investigation. Once the investigation makes out a case against
him and he is included as an accused in the charge-sheet, the
accused has to surrender to the custody of the court and pray for
regular bail. On the strength of an order granting anticipatory bail,
an accused against whom charge has been framed, cannot avoid
appearing before the trial court.
21. If what has been submitted on behalf of the appellant that
Respondent 1 has never appeared before the trial court is to be
accepted, it will lead to the absurd situation that charge was framed
against the
accused in his absence, which would defeat the very
purpose of sub-section (2) of Section 240 CrPC.”
6. In Satpal Singh v.The State of Punjab10 at paragraph 14, it
has been held:
  “14. In any case, the protection under Section 438, Cr.P.C. is
available to the accused only till the court summons the accused
based on the charge sheet (report under Section 173(2), Cr.P.C.).
On such appearance, the accused has to seek regular bail under
Section 439 Cr.P.C. and that application has to be considered by
the court on its own merits. Merely because an accused was
under the protection of anticipatory bail granted under Section
438 Cr.P.C. that does not mean that he is automatically entitled to
regular bail under Section 439 Cr.P.C. The satisfaction of the court
for granting protection under Section 438 Cr.P.C. is different from
the one under Section 439 Cr.P.C. while considering regular bail.”
10(2018) SCC Online SC 415
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7.  It is relevant to point out that placing reliance on Sibbia (supra),
the two-Judge Bench in Mhetre(supra) has taken the stand that the
decisions in Salauddin (supra), K.L .Verma (supra), Adri Dharan Das
(supra) and Sunita Devi (supra) are per incuriam. To quote:-
    “123. In view of the clear declaration of law laid down by the
Constitution Bench in Sibbia case, it would not be proper to limit
the life of anticipatory bail. When the Court observed that the
anticipatory bail is for limited duration and thereafter the accused
should apply to the regular court for bail, that means the life of
Section 438 CrPC would come to an end after that limited duration.
This limitation has not been envisaged by the legislature. The
Constitution Bench in Sibbia case clearly observed that it is not
necessary to rewrite Section 438 CrPC. Therefore, in view of the
clear declaration of the law by the Constitution Bench, the life of
the order under Section 438 CrPC granting bail cannot be curtailed.
     124. The ratio of the judgment of the Constitution Bench in
Sibbia case perhaps was not brought to the notice of Their
Lordships who had decided the cases of Salauddin Abdulsamad
Shaikh v. State of Maharashtra, K.L. Verma v. State, Adri
Dharan Das v. State of W.B. and Sunita Devi v. State of Bihar.
     125. In Naresh Kumar Yadav v. Ravindra Kumar a two-
Judge Bench of this Court observed: (SCC p. 632d)
     “the power exercisable under Section 438 CrPC is
somewhat
extraordinary in character and it [should be
exercised] only in exceptional cases.”
     This approach is contrary to the legislative intention and the
Constitution Bench’s decision in Sibbia case.
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     127. The judgments and orders mentioned in paras 124 and
125 are clearly contrary to the law declared by the Constitution
Bench of this Court in Sibbia case1. These judgments and orders
are also contrary to the legislative intention. The Court would not
be justified in rewriting Section 438 CrPC.
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SUSHILA AGGARWAL & ORS. v. STATE (NCT OF DELHI)
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      138. The analysis of English and Indian law clearly leads to
the irresistible conclusion that not only the judgment of a larger
strength is binding on a judgment of smaller strength but the
judgment of a coequal strength is also binding on a Bench of Judges
of coequal strength. In the instant case, judgments mentioned in
paras 124 and 125 are by two or three Judges of this Court. These
judgments have clearly ignored the Constitution Bench judgment
of this Court in Sibbia case which has comprehensively dealt
with all the facets of anticipatory bail enumerated under Section
438 CrPC. Consequently, the judgments mentioned in paras 124
and 125 of this judgment are per incuriam.”
8. Shri Harin P. Raval, learned Senior Counsel and Amicus Curiae
submits that in the light of the two conflicting schools of thought the
matter needs consideration by a larger Bench. According to him even
the Constitution Bench in Sibbia(supra) does not, in so many words, lay
down a proposition that the protection of anticipatory bail is available to
an accused till the conclusion of the trial.
9. Also having heard learned counsel appearing on both sides, we
are of the prima facie view that the Constitution Bench in Sibbia (supra)
has not laid down the law that once an anticipatory bail, it is an anticipatory
bail forever.
10. In Sibbia (supra), this Court has briefly dealt with the question
of duration of anticipatory bail. It seems to us
that the discussion primarily
pertained to grant of anticipatory bail at the pre-FIR stage (see paragraph
43 quoted below). It appears that there are indications in Sibbia (supra)
that anticipatory bail may be for a limited period. To quote paragraphs
19, 40, 42 and 43:-
     “19. … While granting relief under Section 438(1), appropriate
conditions can be imposed under Section 438(2) so as to ensure
an uninterrupted investigation. One of such conditions can even
be that in the event of the police making out a case of a likely
discovery under Section 27 of the Evidence Act, the person
released on bail shall be liable to be taken in police custody for
facilitating the discovery. Besides, if and when the occasion arises,
it may be possible for the prosecution to claim the benefit of Section
27 of the Evidence Act in regard to a discovery of facts made in
pursuance of information supplied by a person released on bail by
invoking the principle stated by this Court in State of U.P. v.
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Deoman Upadhyaya to the effect that when a person not in
custody approaches a police officer investigating an offence and
offers to give information leading to the discovery of a fact, having
a bearing on the charge which may be made against him, he may
appropriately be deemed so have surrendered himself to the police.
The broad foundation of this rule is stated to be that Section 46 of
the Code of Criminal Procedure does not contemplate any formality
before a person can be said to be taken in custody: submission to
the custody by word or action by a person is sufficient. For similar
reasons, we are unable to agree that anticipatory bail should be
refused if a legitimate case for the remand of the offender to the
police custody under Section 167(2) of the Code is made out by
the investigating agency.
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      40. We have said that there is one proposition formulated by
the High Court with which we are inclined to agree. That is
proposition (2). We agree that a ‘blanket order’ of anticipatory
bail should not generally be passed. This flows from the very
language of the section which, as discussed above, requires the
applicant to show that he has “reason to believe” that he may be
arrested. A belief can be said to be founded on reasonable grounds
only if there is something tangible to go by on the basis of which it
can be said that the applicant’s apprehension that he may be
arrested is genuine. That is why, normally, a direction
should not
issue under Section 438(1) to the effect that the applicant shall be
released on bail “whenever arrested for whichever offence
whatsoever”. That is what is meant by a ‘blanket order’ of
anticipatory bail, an order which serves as a blanket to cover or
protect any and every kind of allegedly unlawful activity, in fact
any eventuality, likely or unlikely regarding which, no concrete
information can possibly be had. The rationale of a direction under
Section 438(1) is the belief of the applicant founded on reasonable
grounds that he may be arrested for a non-bailable offence. It is
unrealistic to expect the applicant to draw up his application with
the meticulousness of a pleading in a civil case and such is not
requirement of the section. But specific events and facts must be
disclosed by the applicant in order to enable the court to judge of
the reasonableness of his belief, the existence of which is the sine
qua non of the exercise of power conferred by the section.
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    42. There was some discussion before us on certain minor
modalities regarding the passing of bail orders under Section
438(1). Can an order of bail be passed under the section without
notice to the Public Prosecutor? It can be. But notice should issue
to the Public Prosecutor or the Government Advocate forthwith
and the question of bail should be re-examined in the light of the
respective contentions of the parties. The ad interim order too
must conform to the requirements of the section and suitable
conditions should be imposed on the applicant even at that stage.
Should the operation of an order passed under Section 438(1) be
limited in point of time? Not necessarily. The court may, if there
are reasons for doing so, limit the operation of the order to a short
period until after the filing of an FIR in respect of the matter
covered by the order. The applicant may in such cases be directed
to obtain an order of bail under Section 437 or 439 of the Code
within a reasonably short period after the filing of the FIR as
aforesaid. But this need not be followed as an invariable rule. The
normal rule should be not to limit the operation of the order in
relation to a period of time.
     43. During the last couple of years this Court, while dealing
with appeals against orders passed by various High Courts, has
granted anticipatory bail to many a person by imposing conditions
set out in
Section 438(2) (i), (ii) and (iii). The court has, in addition,
directed in most of those cases that (a) the applicant should
surrender himself to the police for a brief period if a discovery is
to be made under Section 27 of the Evidence Act or that he should
be deemed to have surrendered himself if such a discovery is to
be made. In certain exceptional cases, the court has, in view of
the material placed before it, directed that the order of anticipatory
bail will remain in operation only for a week or so until after the
filing of the FIR in respect of matters covered by the order. These
orders, on the whole, have worked satisfactorily, causing the least
inconvenience to the individuals concerned and least interference
with the investigational rights of the police. The court has attempted
through those orders to strike a balance between the individual’s
right to personal freedom and the investigational rights of the police.
The appellants who were refused anticipatory bail by various courts
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have long since been released by this Court under Section 438(1)
of the Code.”
  (Emphasis supplied)
11. In the light of the conflicting views of the different Benches of
varying strength, we are of the opinion that the legal position needs to be
authoritatively settled in clear and unambiguous terms. Therefore, we
refer the following questions for consideration by a larger Bench :-
(1)  Whether the protection granted to a person under Section
438 CrPC should be limited to a fixed period so as to enable
the person to surrender before the Trial Court and seek regular
bail.
(2)  Whether the life of an anticipatory bail should end at the time
and stage when the accused is summoned by the court.
12. Accordingly, we direct the Registry to place the papers before
Hon’ble the Chief Justice of India.
Ankit Gyan
                     Matters referred to larger Bench.
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AMRIT PAUL SINGH & ANR.
v.
TATA AIG GENERAL INSURANCE CO. LTD. & ORS.
(Civil Appeal No.2253 of 2018)
MAY 17, 2018
[DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.]
Motor Vehicles Act, 1988 – s.166 – Fatal accident – Truck of
appellant No.2 hit the motorcycle of the victim as a result of which
victim sustained multiple injuries and died – Claim for compensation
before the MACT – Tribunal held that the insurer was not liable,
however, directed the amount of compensation with interest to be
paid by the insurer with direction to recover the same from the owner
and driver of the vehicle – Held: It is clear from the materials brought
on record that the vehicle at the time of accident did not have a
permit – Use of a vehicle in a place without a permit is a fundamental
statutory infraction – Nothing was brought on record by the insured
to prove that he had permit of the vehicle – In such a situation, the
onus cannot be cast on the insurer – Therefore, the tribunal as well
as the High Court had rightly directed the insurer to pay the
compensation amount to the claimants with interest with stipulation
that the insurer shall be entitled to recover the same from the owner
and the driver – Doctrines/Principles – Pay and recover principle.
Dismissing the appeal, the Court
HELD: The insurer had taken the plea that the vehicle in
question had no permit. The existence of a permit of any nature
is a matter of documentary evidence. Nothing
has been brought
on record by the insured to prove that he had a permit of the
vehicle. In such a situation, the onus cannot be cast on the insurer.
Therefore, the tribunal as well as the High Court had directed
the insurer to pay the compensation amount to the claimants with
interest with the stipulation that the insurer shall be entitled to
recover the same from the owner and the driver. The said
directions are in consonance with the principles stated in Swaran
Singh and other cases pertaining to pay and recover principle.
[Para 23] [851-F-H]
   [2018] 6 S.C.R. 838
838
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National Insurance Co. Ltd  v. Swaran Singh and Others
(2004) 3 SCC 297 : [2004]  1  SCR 180 – relied on.
National Insurance Co. Ltd. v. Challa Bharathamma and
Others (2004) 8 SCC 517 : [2004] 4  Suppl. SCR
587 ; Ashok Kumar Khemaka v. Oriental Insurance
Company Ltd. and Others 2014 (3) RCR (Civil) 1018 ;
National Insurance Company Limited v. Kamlesh Kaur
and Others 2006 (3) RCR (Civil) 634 ; Moti Ram v.
ICICI Lombard and Others 2015 ACJ 1793 ; United
India Insurance Co. Limited v. Lehru (2003) 3 SCC
338 : [2003] 2  SCR  495 ; Lakhmi Chand v. Reliance
General Insurance (2016) 3 SCC 100 ; Oriental
Insurance Co. Ltd. v. Meena Variyal and Others (2007)
5 SCC 428 : [2007] 4  SCR 641 ; HDFC Bank Limited
v. Reshma and Others (2015) 3 SCC 679 ; Purnya Kala
Devi v. State of Assam and Others (2014) 14 SCC 142
– referred to.
Case Law Reference
[2004] 4 Suppl. SCR 587           referred to
Para 3
2014 (3) RCR (Civil) 101          referred to
Para 4
2006 (3) RCR (Civil) 634
    referred to
Para 4
2015 ACJ 1793
    referred to
Para 4
[2004] 1 SCR 180
    relied on
Para 12
[2003] 2 SCR 495
    referred to
Para 15
(2016) 3 SCC 100
    referred to
Para 18
[2007] 4 SCR 641
    referred to
Para 18
(2015) 3 SCC 679
    referred to
Para 19
(2014) 14 SCC 142
    referred to
Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2253
of 2018.
From the Judgment and Order dated 10.08.2016 of the High Court
of Punjab and Haryana at Chandigarh in FAO No.1702/2016.
AMRIT PAUL SINGH
& ANR. v. TATA AIG GENERAL
INSURANCE CO. LTD. & ORS.
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Sudhir Walia, Ms. Niharika Ahluwalia, Abhishek Atrey, Advs. for
the Appellants.
Amit Kumar Singh, Mrs. K. Enatoli Sema, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI 1. The legal representatives of the
deceased, Jagir Singh, the husband of the second respondent, preferred
a claim petition being MACT Case No. 70 of 2013 under Section 166 of
the Motor Vehicles Act, 1988 (for brevity, ‘the Act’) before the Motor
Accident Claims Tribunal, Pathankot (for short, ‘the tribunal’) claiming
compensation to the tune of Rs. 36,00,000/-. The claim petition was filed
on the basis that on 19.02.2013, Jagir Singh was travelling to Pathankot
on his motor cycle and at that juncture, the offending truck bearing
temporary registration No. PB-06-6894 belonging to the appellant No. 2
driven in a rash and negligent manner hit the motor cycle of the deceased
as a result of which he sustained multiple injuries, and eventually,
succumbed to the same when being taken to the hospital. The claim put
forth was sought to be sustained on many a basis which need not be
adverted to.
2. The insurer, the first respondent herein, opposed the claim on
the ground that the vehicle in question was driven in violation of the
terms of the insurance policy and further the driver was not having a
valid and effective driving license and, therefore, it was not obliged to
indemnify the insured. That apart, a stand was taken
that the vehicle did
not have the permit on the date of the accident. On behalf of the owner
of the vehicle and driver, assertions were made that the vehicle was
insured with the first respondent as per the insurance policy, that the
vehicle was registered and the driver had the requisite driving licence.
Additionally, copy of the route permit of the offending truck was brought
on record.
3. The tribunal noted that the vehicle was purchased in September
2012 and insured on 20.12.2012. It was registered on 26.02.2013. The
accident, as stated earlier, occurred on 19.02.2013. The tribunal, placing
reliance on the decision rendered by this Court in National Insurance
Co. Ltd. v. Challa Bharathamma and others1, held that the insurer
1(2004) 8 SCC 517
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was not liable and proceeded to quantify the amount of compensation
and determined the same at Rs. 15,63,120/-. The tribunal directed the
amount to be paid by the insurer along with interest at the rate of 9%
from the date of award till its realisation and recover the same from the
owner and driver of the vehicle. A further direction was given for
attachment of the truck in question till the award was satisfied.
4. The award dated 20.11.2014 passed by the tribunal was
challenged in FAO No. 1702 of 2016  before the High Court of Punjab
and Haryana at Chandigarh. It was contended in appeal that the appellant
No. 2, the owner of the offending vehicle, had deposited the necessary
fees along with application on 19.02.2013 for issue of route permit and
the same was issued on 27.02.2013. It was further urged that when the
owner of the vehicle had already submitted the documents in the transport
office for grant of permit along with the requisite fees, the tribunal was
in error in holding that the vehicle was being plied without a valid permit.
In support of the submissions, reliance was placed upon Ashok Kumar
Khemaka v. Oriental Insurance Company Ltd. and other2, National
Insurance Company Limited v. Kamlesh Kaur and others3 and Moti
Ram v. ICICI Lombard and others4.
5. The High Court scrutinized Annexure A-1 which was filed to
justify the stand that the application for issue of the route permit was
made to the competent authority and, on a scrutiny of the
same, came to
hold that the owner had not been able to establish that he had submitted
the application for issue of permit before the accident.  Referring to
Section 66 of the Act and placing reliance on Challa Bharathamma
case, the High Court opined that even assuming that the owner had
already applied for grant of the permit before the accident, the same
would not entitle the owner to ply the vehicle. It is worthy to note that
the learned single Judge distinguished the decisions cited before him
and, resultantly, confirmed the award of the tribunal.
6. We have heard Mr. Sudhir Walia, learned counsel for the
appellants, and Mr. Amit Kumar Singh, learned counsel for the
respondent-insurer.
7. The conclusions recorded by the tribunal and further confirmed
by the High Court clearly show that the accident occurred on 19.02.2013
 2 2014 (3) RCR (Civil) 1018
3  2006 (3) RCR (Civil) 634
4 2015 ACJ 1793
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and the competent authority issued the permit on 27.02.2013.  In this
regard, Sections 2(28) and 2(31) of the Act that define “motor vehicle”
or “vehicle” and “permit” are reproduced below:-
“(28) “motor vehicle” or “vehicle” means any mechanically
propelled vehicle adapted for use upon roads whether the power
of propulsion is transmitted thereto from an external or internal
source and includes a chassis to which a body has not been attached
and a trailer; but does not include a vehicle running upon fixed
rails or a vehicle of a special type adapted for use only in a factory
or in any other enclosed premises or a vehicle having less than
four wheels fitted with engine capacity of not exceeding  twenty-
five cubic centimetres;
(31) “permit” means a permit issued by a State or Regional
Transport Authority or an authority prescribed in this behalf under
this Act authorising the use of a motor vehicle as a transport
vehicle;”
On a perusal of both the definitions, it is quite clear that a permit
has to be issued by the competent authority under the Act for use of a
motor vehicle as a transport vehicle. The emphasis is on the words “use”
as well as “transport vehicle”.
8. Section 2(47) states that “transport vehicle” means a public
service vehicle, a goods carriage, an educational institution bus or a private
service vehicle. Section 66 stipulates necessity for permits. Sub-section
(1) thereof provides that no owner of a
motor vehicle shall use or permit
the use of the vehicle as a transport vehicle in any public place, whether
or not such vehicle is actually carrying any passengers or goods save in
accordance with the conditions of a permit granted or countersigned by
a Regional or State Transport Authority or any prescribed authority.
Various provisos have been appended to the main provision stipulating
conditions for use of the vehicle and purpose of carriage of goods vehicle.
Sub-section (2) states that the holder of a goods carriage permit may
use the vehicle for the drawing of any trailer or semi-trailer not owned
by him, subject to such conditions as may be prescribed. It is necessary
to mention here that a proviso has been added by Act 54 of 1994 with
effect from 14.11.1994 allowing the holder of a permit of any articulated
vehicle to use the prime-mover of that articulated vehicle for any other
semi-trailer. Section 2(2) defines “articulated vehicle” to mean a motor
vehicle to which a semi-trailer is attached.
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9. It is apt to note here that sub-section (3) of Section 66 carves
out certain exceptions to sub-section (1). The relevant part of sub-section
(3) is extracted below:-
“(3) The provisions of sub-section (1) shall not apply—
(a) to any transport vehicle owned by the Central Government or
a State Government and used for Government purposes
unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a
person acting under contract with a local authority and used solely
for road cleansing, road watering or conservancy purposes;
(c) to any transport vehicle used solely for police, fire brigade or
ambulance purposes;
(d) to any transport vehicle used solely for the conveyance of
corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or
for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as
may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures
or deals in motor vehicles or builds bodies for attachment to chassis,
solely for such purposes and in accordance with such conditions
as the Central Government may, by notification in the Official
Gazette, specify in this behalf;
(h)
x
x
x
x
(i) to any goods vehicle, the gross vehicle weight of which does
not exceed 3,000 kilograms;
(j) subject to such conditions as the Central
Government may, by
notification in the Official Gazette, specify, to any transport vehicle
purchased in one State and proceeding to a place, situated in that
State or in any other State, without carrying any passenger or
goods;
(k) to any transport vehicle which has been temporarily registered
under section 43 while proceeding empty to any place for the
purpose of registration of the vehicle;
AMRIT PAUL SINGH & ANR. v. TATA AIG GENERAL
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(l)
x
x
x
x
(m) to any transport vehicle which, owing to flood, earthquake or
any other natural calamity, obstruction on road, or unforeseen
circumstances, is required to be diverted through any other route,
whether within or outside the State, with a view to enabling it to
reach its destination;
(n) to any transport vehicle used for such purposes as the Central
or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire-purchase,
lease or hypothecation agreement and which owing to the default
of the owner has been taken possession of by or on behalf of the
person with whom the owner has entered into such agreement, to
enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any place
for purpose of repair.”
10. In the case at hand, the findings would show that the appellant
No. 2 did not have a permit for the vehicle. There is no dispute that the
vehicle initially had a temporary registration and eventually the permanent
registration. It is the stand of the appellants that the tribunal and the
High Court did not appreciate that the chasis of the vehicle was sent to
the body where the body of the truck was fabricated and when the
vehicle was driven out of the work shop at which point of time it met
with an accident. A contention has been made that the insurance policy
was in force at the relevant time and, hence, the insurer
is legally obliged
to indemnify the insured. A distinction has to be made between “route
permit” and “permit” in the context of Section 149 of the Act. Section
149(2) provides the grounds that can be taken as defence by the insurer.
It enables the insurer to defend on the ground that there has been breach
of a specific condition of the policy, namely, (i) a condition that excludes
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 organized 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.  That apart, it also
entitles the insurer to raise the issue pertaining to a condition that excludes
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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 that excludes
liability for injury caused or contributed to by conditions of war, civil war,
riot or civil commotion.  A further defence that can be availed of by the
insurer is that the policy is void on the ground that it has been obtained
by non-disclosure of the material fact or by representation of act which
is false in the material particular.
11. On a perusal of the written statement filed by the owner and
the driver, it is evident that the factum of accident having been caused
by the vehicle in question had been denied.  That apart, there is also a
denial of liability that relates to the manner in which the accident had
occurred as alleged in the claim petition.  It was the specific assertion of
the insurer before the tribunal that the vehicle was running in contravention
of the provisions of the Act, for it did not possess a route permit. The
tribunal, on the basis of the materials brought on record to the effect that
the route permit was issued on 27.02.2013 and the accident occurred on
19.02.2013, returned a finding that the vehicle in question did not have
the permit. As stated earlier, the High Court has affirmed the same.
12. Learned counsel for the appellants would submit that in the
obtaining factual matrix, the breach would not
exonerate the insurer
from satisfying the judgment and an award in terms of Section 149 of
the Act. He has drawn inspiration from the decision of a three-Judge
Bench in National Insurance Co. Ltd v. Swaran Singh and others5.
In the said case, the Court was dealing with the interpretation of Section
149(2)(a)(ii) vis-à-vis  the proviso appended to sub-sections (4) and (5)
of Section 149 of the Act.  The issue centrally pertained to the necessity
of having a driving licence. After adverting to various provisions, the
Court also delved into the fundamental concept of third party right. Regard
being had to the nature of the beneficial legislation, the Court observed:-
“39. The question as to whether an insurer can avoid its liability in
the event it raises a defence as envisaged in sub-section (2) of
Section 149 of the Act corresponding to sub-section (2) of Section
96 of the Motor Vehicles Act, 1939 had been the subject-matter
of decisions in a large number of cases.”
5(2004) 3 SCC 297
AMRIT PAUL SINGH & ANR. v. TATA AIG GENERAL
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13. The Court posed the question as to whether an insurer can
avoid its liability in the event it raised the defence as envisaged in sub-
section (2) of Section 149 of the Act corresponding to sub-section (2)  of
Section 96 of the Motor Vehicles Act, 1939. The Court analysed the
language employed in sub-section (2) of Section 149, specifically clause
(a), and, after scrutinizing the same and referring to various authorities,
opined:-
“69. The proposition of law is no longer res integra that the person
who alleges breach must prove the same. The insurance company
is, thus, required to establish the said breach by cogent evidence.
In the event the insurance company fails to prove that there has
been breach of conditions of policy on the part of the insured, the
insurance company cannot be absolved of its liability. (See Sohan
Lal Passi6)
70. Apart from the above, we do not intend to lay down anything
further i.e. degree of proof which would satisfy the aforementioned
requirement inasmuch as the same would indisputably depend upon
the facts and circumstances of each case. It will also depend
upon the terms of contract of insurance. Each case may pose a
different problem which must be resolved having regard to a large
number of factors governing the case including conduct of parties
as regards duty to inform, correct disclosure, suppression, fraud
on the insurer etc. It will also depend upon the fact as to who is
the
owner of the vehicle and the circumstances in which the vehicle
was being driven by a person having no valid and effective licence.
No hard-and-fast rule can, therefor, be laid down. If in a given
case there exists sufficient material to draw an adverse inference
against either the insurer or the insured, the Tribunal may do so.
The parties alleging breach must be held to have succeeded in
establishing the breach of conditions of the contract of insurance,
on the part of the insurer by discharging its burden of proof. The
Tribunal, there cannot be any doubt, must arrive at a finding on
the basis of the materials available on records.
71. In the aforementioned backdrop, the provisions of sub-sections
(4) and (5) of Section 149 of the Motor Vehicles Act, 1988 may
be considered as to the liability of the insurer to satisfy the decree
at the first instance.
          x
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  6Sohan Lal Passi v. P. Sesh Reddy and others, (1996) 5 SCC 21
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83. Sub-section (5) of Section 149 which imposes a liability on the
insurer must also be given its full effect. The insurance company
may not be liable to satisfy the decree and, therefore, its liability
may be zero but it does not mean that it did not have initial liability
at all. Thus, if the insurance company is made liable to pay any
amount, it can recover the entire amount paid to the third party on
behalf of the assured. If this interpretation is not given to the
beneficent provisions of the Act having regard to its purport and
object, we fail to see a situation where beneficent provisions can
be given effect to. Sub-section (7) of Section 149 of the Act, to
which pointed attention of the Court has been drawn by the learned
counsel for the petitioner, which is in negative language may now
be noticed. The said provision must be read with sub-section (1)
thereof. The right to avoid liability in terms of sub-section (2) of
Section 149 is restricted as has been discussed hereinbefore. It is
one thing to say that the insurance companies are entitled to raise
a defence but it is another thing to say that despite the fact that its
defence has been accepted having regard to the facts and
circumstances of the case, the Tribunal has power to direct them
to satisfy the decree at the first instance and then direct recovery
of the same from the owner. These two matters stand apart and
require contextual reading.”
  [Emphasis supplied]
14. We may fruitfully note
that the three-Judge Bench adverted
to situations where the driver does not have a licence and the same has
been allowed to be driven by the owner of the vehicle by such person,
the insurer would be entitled to succeed in defence and avoid liability,
but the position would be different where the disputed question of fact
arises as to whether the driver had a valid licence and where the owner
of the vehicle committed a breach of the terms of the contract of insurance
as also the provisions of the Act by consciously allowing any person to
drive a vehicle who did not have a valid driving licence.
15. The Court held that if, on facts, it is found that the accident
was caused solely because of some other unforeseen or intervening
causes like mechanical failures and similar other causes having no nexus
with the driver not possessing the requisite type of licence, the insurer
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will not be allowed to avoid its liability merely for technical breach of
conditions concerning driving licence. That apart, minor and
inconsequential deviations with regard to licensing conditions would not
constitute sufficient ground to deny the benefit of coverage of insurance
to third parties.  The other category of cases that the Court addressed to
included cases where the licence of the driver is found to be fake. In
that context, the Court expressed its general agreement with United
India Insurance Co. Limited v. Lehru7 and stated thus:-
“92. … In Lehru case the matter has been considered in some
detail. We are in general agreement with the approach of the
Bench but we intend to point out that the observations made therein
must be understood to have been made in the light of the
requirements of the law in terms whereof the insurer is to establish
wilful breach on the part of the insured and not for the purpose of
its disentitlement from raising any defence or for the owners to
be absolved from any liability whatsoever ..”
16. The three-Judge Bench summed up its conclusions and we
think it appropriate to reproduce the relevant part of the same:-
“110. (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.
     x
  x
x
x
(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
7(2003) 3 SCC 338
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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 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.”
17. Learned counsel for the appellants would submit that there
has been no fundamental breach of the policy conditions. In this context,
we may profitably refer to the decision in Challa Bharathamma (supra)
wherein a two-Judge Bench squarely dealt with the absence of a permit
and ruled that plying a vehicle without a permit is an infraction and insurer
is not liable.
18. In Lakhmi Chand v. Reliance General Insurance8, the
Court was concerned with an order passed by the National Consumer
Disputes Redressal Commission (NCDRC) that had declined the relief
to the petitioner therein. The insurer in the said case had taken the plea
that the complainant had violated the terms and conditions of the policy,
for five passengers were travelling in the goods carrying vehicle at the
time of the accident, whereas the permitted seating capacity of the motor
vehicle of the appellant was only 1 + 1. The
two-Judge Bench referred
to Oriental Insurance Co. Ltd. v. Meena Variyal and others9 and
expressed the view that in order to avoid liability, the insurer must establish
that there was breach on the part of the insured.
19. The obtaining fact situation is sought to be equated with the
factual score in the said case.  In this regard, it is useful to refer to the
Bench decision in HDFC Bank Limited v. Reshma and others10. The
issue that arose before the Court was whether the financier was liable
to pay the compensation or it was the liability of the borrower. The
tribunal had returned the finding that the duty of the financier was to see
that the borrower did not neglect to get the vehicle insured and, therefore,
it was jointly and severally liable along with the owner. The High Court
 8 (2016) 3 SCC 100
 9 (2007) 5 SCC 428
 10 (2015) 3 SCC 679
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had concurred with the said conclusion.  The Court referred to Purnya
Kala Devi v. State of Assam and other111 that has dealt with the
definition of the term “owner” as contained in Section 2(30) of the Act.
In the said case, the vehicle in question was under the requisition of the
State of Assam under the provisions of law. In that context, the Court
has expressed that:-
“16. … The High Court failed to appreciate that at the relevant
time the offending vehicle was under the requisition of Respondent
1 State of Assam under the provisions of the Assam Act.
Therefore, Respondent 1 was squarely covered under the definition
of ‘owner’ as contained in Section 2(30) of the 1988 Act. The
High Court failed to appreciate the underlying legislative intention
in including in the definition of ‘owner’ a person in possession of
a vehicle either under an agreement of lease or agreement of
hypothecation or under a hire-purchase agreement to the effect
that a person in control and possession of the vehicle should be
construed as the ‘owner’ and not alone the registered owner. The
High Court further failed to appreciate the legislative intention
that the registered owner of the vehicle should not be held liable if
the vehicle was not in his possession and control. The High Court
also failed to appreciate that Section 146 of the 1988 Act requires
that no person shall use or cause or allow any other person to use
a motor vehicle in a
public place without an insurance policy
meeting the requirements of Chapter XI of the 1988 Act and the
State Government has violated the statutory provisions of the 1988
Act.”
20. Be it noted, in the said case, the liability was fixed on the State
keeping in view the legislative intention behind Section 146 of the Act,
no person shall use or cause or allow any other person to use a motor
vehicle in a public place without an insurance policy as that is the
mandatory statutory requirement under the Act. Emphasis was laid on
possession and control of the vehicle and accordingly liability was fixed
on the State of Assam.
21. In HDFC Bank Limited (supra), the three-Judge Bench
opined that the hypothecation agreement did not convey that the appellant
financier had become the owner and was in control and possession of
11(2014) 14 SCC 142
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the vehicle. It was the absolute fault of the respondent No. 2 to take the
vehicle from the dealer without full payment of the insurance, more so
when nothing had been brought on record that the said fact was known
to the appellant financier or that it was done in collusion with the financier.
22. The Court held that when the intention of the legislature is
quite clear to the effect that a registered owner of the vehicle should not
be held liable if the vehicle is not in his possession and control and there
was evidence on record that the respondent No. 2, plied the vehicle
without the insurance in violation of the statutory provision contained in
Section 146 of the Act, the High Court could not have mulcted the liability
on the financier and finally, the financer was absolved of the liability.
23. In the case at hand, it is clearly demonstrable from the materials
brought on record that the vehicle at the time of the accident did not
have a permit. The appellants had taken the stand that the vehicle was
not involved in the accident. That apart, they had not stated whether the
vehicle had temporary permit or any other kind of permit. The exceptions
that have been carved out under Section 66 of the Act, needless to
emphasise, are to be pleaded and proved. The exceptions cannot be
taken aid of in the course of an argument to seek absolution from liability.
Use of a vehicle in a public place without a permit is a fundamental
statutory infraction.  We are
disposed to think so in view of the series of
exceptions carved out in Section 66. The said situations cannot be equated
with absence of licence or a fake licence or a licence for different kind
of vehicle, or, for that matter, violation of a condition of carrying more
number of passengers. Therefore, the principles laid down in Swaran
Singh (supra) and Lakhmi Chand (supra) in that regard would not be
applicable to the case at hand. That apart, the insurer had taken the plea
that the vehicle in question had no permit. It does not require the wisdom
of the “Tripitaka”, that the existence of a permit of any nature is a matter
of documentary evidence. Nothing has been brought on record by the
insured to prove that he had a permit of the vehicle. In such a situation,
the onus cannot be cast on the insurer. Therefore, the tribunal as well as
the High Court had directed the insurer was required to pay the
compensation amount to the claimants with interest with the stipulation
that the insurer shall be entitled to recover the same from the owner and
the driver. The said directions are in consonance with the principles
stated in Swaran Singh (supra) and other cases pertaining to pay and
recover principle.
AMRIT PAUL SINGH & ANR. v. TATA AIG GENERAL
INSURANCE CO. LTD. & ORS. [DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
852
SUPREME COURT REPORTS
[2018] 6 S.C.R.
24. In view of the aforesaid analysis, we do not perceive any
merit in the appeal and, accordingly, the same stands dismissed without
any order as to costs.
Ankit Gyan
                              Appeal dismissed.