Jai Singh vs Ajay Kumar
- Court
- High Court of Himachal Pradesh
Neutral Citation No. ( 2026:HHC:39211 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
High Court of H.P.
FAO(MV) No.313 of 2024
Reserved on: 07.09.2026
Date of decision: 15.09.2026
Date of uploading on website:
15.09.2026
________________________________________________
Jai Singh …..Appellant.
Versus
Ajay Kumar & others …..Respondents.
________________________________ ________________
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? Yes.
________________________________________________
For the appellant: Ms. Anjali Soni, Advocate.
Respondents No. 1 & 2 ex parte.
For respondent No. 3: Mr. Praneet Gupta, Advocate.
Sushil Kukreja, Judge.
The instant appeal has been maintained by
appellant-Jai Singh, i.e. owner of the offending vehicle, who
was respondent No. 1 before the learned Tribunal below
(hereinafter referred to as “the appellant/owner of the
offending vehicle”) under Section 173 of the Motor Vehicles
Act, 1988 (for short ‘the Act’) against impugned award, dated
28.09.2023, passed in MACP No.3-D/2015, by learned Motor
Accident Claims Tribunal-II, Kangra at Dharamshala, District
1
Whether reporters of Local Papers may be allowed to see the judgment?
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Kangra, H.P. (hereinafter referred to as “the learned Tribunal
High Court of H.P.
below”), whereby the claim petition filed by the petitioner-
claimant-Shri Ajay Kumar (respondent No. 1 herein), under
Section 166 of the Act, was partly allowed and he was held
entitled for compensation of Rs.3,48,700/- with interest
@7.5% per annum from the date of filing of the petition till
the realization of the amount from respondent No. 2-New
India Assurance Company Limited and respondent No. 2
was given right to recover the same from respondent No. 1-
Shri Jai Singh, owner of the offending vehicle.
2. The facts giving rise to the instant appeal are that
the petitioner/claimant, i.e., Shri Ajay Kumar, preferred a
claim petition under Section 166 of the Act before the learned
Tribunal below wherein he sought compensation of
Rs.25,00,000/- on account of injuries sustained by him in
motor vehicle accident involving car having temporary
registration No. HP-40-T-1967, which was later registered as
HP-39C-3191 (offending vehicle). As per the petitioner on
01.02.2014, around 05:30 p.m., he was riding on his
motorcycle, having registration No. HP-39A-9204, and going
to his shop at Darini bazaar, Tehsil Shahpur, District Kangra,
H.P.. When he reached near the wine shop, respondent No.
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1-Shri Jai Singh or respondent No. 1-A Shri Kakoo Ram,
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owner and driver of the offending vehicle, respectively, while
driving the offending vehicle in a very high speed came on
the wrong side and hit his motorcycle. Due to the accident
he fell down on the road and sustained multiple injuries and
his left leg was fractured. As per the petitioner, the accident
took place due to the rash and negligent driving of
respondent No. 1 or respondent No. 1-A. After the accident,
the petitioner was rushed to Civil Hospital, Shahpur where he
was given first aid and referred to Dr. RPGMC Tanda where
he remained admitted from 01.02.2014 to 11.02.2014,
15.07.2014 to 17.07.2014 and 09.08.2014 to 12.08.2014.
The petitioner further pleaded that he remained outdoor
patient even after 12.08.2014 and had spent Rs.1,00,000/-
on his treatment. He was running a shop of photographer
and prior to the accident he used to earn to Rs.15,000/- per
month and after the accident he was suffering from mental
depression.
3. Respondent No. 1, i.e., owner of the offending
vehicle filed his reply, wherein he denied the allegations of
the petitioner and averred that the petitioner did not suffer
any injury or permanent disability due to the rash and
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negligent driving of vehicle, bearing registration No. HP-39C-
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3191. He averred that he was not driving the offending
vehicle, but one Kakoo Ram (respondent No. 1-A) was
driving the same. He further averred that the petitioner
sustained injuries due to his own fault and negligence as he
was driving the motorcycle at a very high speed. He also
averred that the compensation claimed by the petitioner was
highly exorbitant and excessive.
4. Respondent No. 1-A Shri Kakoo Ram (driver of
the offending vehicle) also filed his reply to the claim petition,
wherein he took preliminary objection qua maintainability of
the petition. On merits, he denied all the allegations as
alleged in the petition. He averred that neither he was
driving the offending vehicle nor any FIR was registered
against him. He had no knowledge about the accident and
the vehicle involved in it.
5. Respondent No. 2-New India Assurance
Company Limited filed its separate reply, wherein preliminary
objections qua non-joinder of necessary parties, the driver
was not holding a valid and effective driving licence and the
vehicle was being driven in violation of the terms and
conditions of the insurance policy were taken. On merits, it
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was averred that the place of accident was within the
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jurisdiction of Police Station, Shahpur,. It was further averred
that the accident had not taken place due to the rash and
negligent driving of respondent No. 1 or respondent No. 1-A,
thus the petitioner was not entitled for any compensation.
Even otherwise, the compensation, as sought by the
petitioner, was highly excessive.
6. On 24.06.2019 the learned Tribunal below had
framed the following issues for consideration and
adjudication:
“1. Whether on dated 01.02.2014 at/about 5.30
pm petitioner Ajay Kumar sustained injuries
on account of accident of the vehicle No.HP-
39C-3191 at Drini Chowk Tehsil Shahpur
Distt. Kangra, H.P. due to rash and negligent
driving of respondent No. 1, as alleged?
OPP
2. If issue No. 1 is proved in affirmative,
whether the petitioner is entitled for
compensation, if so, to what extent and from
whom? OPP
3. Whether respondent No. 1-A was driving the
alleged vehicle at the time of accident and
respondent No. 1 was not driving the alleged
vehicle, as alleged? OPR-1
4. Whether the petition is not maintainable, as
respondent No. 1A has no connection with
the alleged accident, as alleged? OPR-1A
5. Whether respondent No. 1 was not holding
valid and effective driving licence at the time
of accident, as alleged? OPR-2
6. Whether the alleged vehicle involved in the
accident was being driven in contravention
of the terms and conditions of the insurance
policy and the Motor Vehicle Act/Rules, as
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alleged? OPR-2
7. Relief.”
High Court of H.P.
7. After the parties led their evidence and after
hearing the learned counsel for the parties, the claim petition
was partly allowed by the learned Tribunal below and
petitioner/claimant (respondent No. 1 herein) he was held
entitled for compensation of Rs.3,48,700/- with interest
@7.5% per annum from the date of filing of the petition till
the realization of the amount from respondent No. 2-
Insurance Company and respondent No. 2 was given right to
recover the same from respondent No. 1-Shri Jai Singh,
owner of the offending vehicle.
8. Feeling aggrieved and dissatisfied, appellant-Shri
Jai Singh, owner of the offending vehicle and respondent No.
1 before the learned Tribunal below, preferred the instant
appeal against the impugned award dated 28.09.2023, with
prayer to allow the instant appeal by setting aside the
impugned award qua him (appellant).
9. Learned Counsel for the appellant contended
that the appellant was not driving the offending vehicle at the
time of the accident, rather respondent No. 2-Kakoo Ram
was driving the same and the accident had taken place due
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to the own fault and negligence of the petitioner himself, as
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such the liability to pay the compensation to the petitioner
cannot be fastened upon the appellant.
10. Per contra, the learned counsel for respondent
No. 3-Insurance Company supported the impugned award
and contended that the impugned award is the result of
proper appreciation of both facts and law and the appeal,
being devoid of merits, be dismissed. Learned counsel for
the Insurance Company further contended that Kaku was not
driving the offending vehicle and it was the appellant himself
who was driving the vehicle.
11. I have heard the learned counsel for the
appellant, learned counsel for respondent No. 3 and carefully
examined the entire records.
12. The perusal of the record reveals that on
01.02.2014 petitioner-Ajay Kumar sustained injuries on
account of the accident of the vehicle No. HP-39C-3191 due
to the rash and negligent driving of respondent No. 1. The
perusal of the record further reveals that respondent No. 1-
Jai Singh (appellant herein) has not disputed that his car
bearing Temporary No. HP-40-T-1967 (permanent
registration No. HP-39C-3191) had met with an accident on
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01.02.2014 and he has also not disputed that the accident
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took place due to the rash and negligent driving of the car.
The only defence taken by the appellant is that he had
engaged one Kakoo Ram (respondent No. 1-A), as driver of
the car, who was driving the car at the relevant date.
However, except for the bald statement of the appellant there
is no other evidence on record to show that respondent No.
1-A-Kakoo Ram was driving the vehicle in question at the
time of the accident. Therefore, in the absence of any
evidence on record, it cannot be said that respondent No. 1-
A-Kakoo Ram was driving the car at the time of the accident.
13. The statement of the petitioner, while appearing
as PW-3 was duly corroborated by Shri Baldev Singh, who
appeared in the witness-box as PW-4, which established on
record that on 01.02.2014, around 05:30 p.m. respondent
No. 1(appellant herein), was driving car bearing temporary
No. HP-40-T-1967 (permanent registration No. HP-39C-
3191) in a rash and negligent manner and hit against the
motorcycle of the petitioner near Darini Chowk, therefore,
petition was not maintainable against respondent No. 1-A-
Kakoo Ram.
14. The perusal of the material on record further
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reveals that the accident took place due to the rash and
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negligent driving of the appellant who was driving the vehicle
at the time of accident. The plea of the Insurance Company
(respondent No. 3 herein) is that the appellant was not
holding an effective and valid driving licence at the time of
the accident in question and the vehicle was being driven in
contravention of the terms and conditions of the insurance
policy. Therefore, it was incumbent upon the appellant to
have produced on record his driving licence, however, for the
reasons best known to the appellant, he has failed to place
on record his driving licence.
15. It is a settled law that initial onus is upon the
owner of the offending vehicle to produce on record the
driving licnece of the driver and thereafter the onus will shift
upon the insurance company to prove that the driving licence
is not effective and valid. In Pappu & Others Versus Vinod
Kumar Lamba & Another, (2018) 3 SCC 208, Hon’ble
Supreme Court held that the initial onus is on the owner of
the vehicle to adduce into evidence the fundamental
document like driving license and the Insurance Company
cannot be saddled with the liability where owner has failed to
adduce these documents. Relevant extract of this judgement
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is reproduced as under:
High Court of H.P.
“13. In the present case, Respondent 1 owner of the
offending vehicle merely raised a vague plea in the
written statement that the offending Vehicle No. DIL
5955 was being driven by a person having valid driving
licence. He did not disclose the name of the driver and
his other details. Besides, Respondent 1 did not enter
the witness box or examine any witness in support of
this plea. Respondent 2 insurance company in the
written statement has plainly refuted that plea and also
asserted that the offending vehicle was not driven by an
authorised person and having valid driving licence.
Respondent 1 owner of the offending vehicle did not
produce any evidence except a driving licence of one
Joginder Singh, without any specific stand taken in the
pleadings or in the evidence that the same Joginder
Singh was, in fact, authorised to drive the vehicle in
question at the relevant time. Only then would onus
shift, requiring Respondent 2 insurance company to
rebut such evidence and to produce other evidence to
substantiate its defence. Merely producing a valid
insurance certificate in respect of the offending truck
was not enough for Respondent 1 to make the
insurance company liable to discharge his liability
arising from rash and negligent driving by the driver of
his vehicle. The insurance company can be fastened
with the liability on the basis of a valid insurance policy
only after the basic facts are pleaded and established
by the owner of the offending vehicle that the vehicle
was not only duly insured but also that it was driven by
an authorised person having a valid driving licence.
Without disclosing the name of the driver in the written
statement or producing any evidence to substantiate
the fact that the copy of the driving licence produced in
support was of a person who, in fact, was authorised to
drive the offending vehicle at the relevant time, the
owner of the vehicle cannot be said to have extricated
himself from his liability. The insurance company would
become liable only after such foundational facts are
pleaded and proved by the owner of the offending
vehicle.”
16. In the case on hand, the appellant, while appearing
in the witness-box as RW-1 has also admitted in his cross-
examination that he was not having any driving licence to
drive the vehicle. Therefore, without producing his driving
licence, the owner of the vehicle who was driving the vehicle
at the relevant time cannot be said to have extricated himself
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from his liability. The insurance company would become
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liable only after such driving license is produced by the
owner of the offending vehicle. As held in Vinod Kumar
Lamba’s case (supra), mere production of valid insurance
certificate, in respect of offending vehicle is not enough for
the owner to make insurance company liable to discharge
liability arising from rash and negligent driving by the driver
of the vehicle. The insurance company can be fastened with
the liability on the basis of the valid insurance policy only
after basic facts are pleaded and established that the vehicle
was not only duly insured but also that it was driven by an
authorized person having a valid driving license. The
insurance company would become liable only after such
foundational facts are pleaded and proved by the other side.
17. Hence, in view of the foregoing discussion and the
position of law emerging, in the facts and circumstances of
the present case, the insurance company cannot be fastened
with the liability in law. The owner-cum-driver of the offending
vehicle insured with the insurer was not authorized to drive
the vehicle when the accident occurred and thus there was a
breach of policy conditions.
18. For the reasons recorded above, the insurance
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company has rightly been absolved from liability to pay the
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compensation. Now the question, which arises for
consideration, is as to whether in the facts and
circumstances of the case, the insurance company can be
directed to pay the compensation amount with liberty to
recover the same from owner of the vehicle. Learned
counsel for the insurance company has vehemently
contended that since there was a fundamental breach of the
policy condition, therefore, the insurance company cannot be
held liable to pay any compensation to the petitioners. On
the other hand, learned counsel for the petitioner as well as
respondents No.1 and 2 contended that in the instant case,
the petitioner was a third party, hence, the liability to pay the
amount of compensation should be fastened upon the
insurance company in the first instance with liberty to recover
it from the owner.
19. It is settled proposition of law that the Motor
Vehicles Act is the benevolent piece of legislation. The
petitioner herein is the third party, therefore, the right of a
third party cannot be defeated only on the ground that the
driver of the offending vehicle was not holding the valid
driving license. The concept of pay and recover is of recent
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origin, meant to take care of the suffering undergone not only
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by innocent but also ignorant third parties. In National
Insurance Co. Ltd. V. Swaran Singh, reported in (2004) 3
SCC 297 , the Hon’ble Supreme Court while laying down
parameters/guidelines while deciding the claim application by
the Tribunal in clause (iii), (iv) & (vi) of para-110 of the
judgment, has held as under:
(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.
(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.”
20. Reiterating the said principle, the Hon'ble
Supreme Court again in the case of Jawahar Singh v. Bala
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Jain reported in (2011) 6 SCC 425 , held in paras 10 to 12
High Court of H.P.
asunder:-
“10. On behalf of Respondent 6, National Insurance
Company Ltd., it was sought to be urged that at the
time of the accident, the motorcycle was being
driven in breach of the terms and conditions of the
insurance policy and, accordingly, the Insurance
Company could not be held liable for making
payment of the compensation awarded by the Motor
Accidents Claims Tribunal. Apart from the fact that
Jatin, who was riding the motorcycle, did not have a
valid driving licence, it had also been established
that he was a minor at the time of the accident and
consequently the Insurance Company had been
rightly relieved of the liability of payment of
compensation to the claimants and such liability had
been correctly fixed on the owner of the motorcycle,
Jawahar Singh.
11. It has been well settled that if it is not possible for an
awardee to recover the compensation awarded
against the driver of the vehicle, the liability to make
payment of the compensation awarded fell on the
owner of the vehicle. It was submitted that in this
case since the person riding the motorcycle at the
time of accident was a minor, the responsibility for
paying the compensation awarded fell on the owner
of the motorcycle. In fact, in Ishwar Chandra v.
Oriental Insurance Co. Ltd., (2007) 10 SCC 650, it
was held by this Court that in case the driver of the
vehicle did not have a licence at all, the liability to
make payment of compensation fell on the owner
since it was his obligation to take adequate care to
see that the driver had an appropriate licence to
drive the vehicle.
12. Before the Tribunal reliance was also placed on the
decision in National Insurance Co. Ltd. v. Gh. Mohd.
Wani, 2004 ACJ 1424 (J&K) and National Insurance
Co. Ltd. v. Gadigewwa, 2005 ACJ 40 (Kant), wherein
it was held that if the driver of the offending vehicle
did not have a valid driving licence, then the
Insurance Company after paying the compensation
amount would be entitled to recover the same from
the owner of the vehicle. It was submitted that no
interference was called for with the judgment and
order of the High Court impugned in the special
leave petition.”
21. Similarly view has also been reiterated in
Shamanna vs. Divisional Manager, Oriental Insurance
Company Limited), (2018) 9 SCC 650 , wherein the Hon'ble
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Supreme Court in para-6 of the judgment has held as under:
High Court of H.P.
“6. As per the decision in National Insurance Co. Ltd. v.
Swaran Singh, (2004) 3 SCC 297, onus is always
upon the insurance company to prove that the driver
had no valid driving licence and that there was
breach of policy conditions. Where the driver did not
possess the valid driving licence and there are
breach of policy conditions, “pay and recover” can
be ordered in case of third-party risks. The Tribunal
is required to consider “as to whether the owner has
taken reasonable care to find out as to whether the
driving licence produced by the driver … does not
fulfill the requirements of law or not will have to be
determined in each case”.
22. Again, the Hon’ble Supreme Court in Pappu &
others vs. Vinod Kumar Lamba & another, (2018) 3
Supreme Court Cases 208, had held as under:
“19. In the present case, the owner of the vehicle
(Respondent 1) had produced the insurance
certificate indicating that Vehicle No. DIL 5955 was
comprehensively insured by Respondent 2
(insurance company) for unlimited liability. Applying
the dictum in National Insurance Co. Ltd (National
Insurance Co. Ltd. vs. Swaran Singh, (2004) 3 SCC
297), to subserve the ends of justice, the insurer
(Respondent 2) shall pay the claim amount awarded
by the Tribunal to the appellants in the first instance,
with liberty to recover the same from the owner of the
vehicle (Respondent 1) in accordance with law.”
23. The same view has further been followed in the
case of Parminder Singh vs. New India Assurance
Company Limited, (2019) 7 SCC 217 , whereby the Hon’ble
Supreme Court has approved the principle of “Pay and
Recover” in such cases. Again, in the case of Kurvan
Ansari Alias Kurvan Ali v. Shyam Kishore Murmu, (2022)
1 SCC 317 , in para-17, applying the principle of pay and
recover, the Hon’ble Supreme Court has held as under:
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“17. Accordingly, the appellants are entitled for a sum of
Rs.4,70,000 (Rupees four lakhs seventy thousand only)
towards total compensation with interest @ 6% p.a.
from the date of claim petition till the date of realization.
The enhanced compensation shall be apportioned
between the appellants as ordered by the Tribunal. The
entire compensation shall be paid to the appellants by
Respondent 2 insurance company, and we keep it open
to the insurance company to recover the same from
Respondent 1 owner of the motorcycle by initiating
appropriate proceedings as the motorcycle was driven
by the driver who was not possessing valid driving
licence on the date of the accident.”
24. Therefore, in view of the above discussion and
High Court of H.P.
the law laid down by the Hon'ble Supreme Court, this Court
is of the view that the insurance company is to be made
liable to indemnify the compensation amount awarded by the
learned Tribunal below in the first instance and thereafter to
recover the same from the owner of the offending vehicle,
i.e. appellant-Jai Singh.
25. In view of what has been discussed hereinabove,
the impugned award dated 28.09.2023, passed by the
learned Tribunal below, needs no interference and the instant
appeal, being devoid of merits, deserves dismissal and is
accordingly dismissed.
Pending application(s), if any, shall also stand(s)
disposed of.
( Sushil Kukreja )
Judge
th
15 September, 2026
(virender)
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