MRIMOY SAM vs SHILA BISWAS AND ORS

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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Biswaroop Chowdhury

F.M.A.T. (MV) 70 of 2025
With
CAN 2 of 2025
Sri Mrinmoy Sam
VERSUS
Smt. Shila Biswas & Ors.


For the appellant:
Mr. Krishna Banik, Adv.
Mr. Tathagata Banik, Adv.

Mr. Rajesh Singh, Adv.

For the respondent no. 3/Insurance
Co.:


Last Heard on: February 24, 2026
Judgment on: May 15, 2026
Biswaroop Chowdhury, J:
The appellant before this Court was an opposite party in a case under
Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment
nd
and Award dated 01-04-2024 passed by Learned Additional District Judge 2
Court Suri Birbhum in MACC No-187/2015.

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The case of the claimants/respondents no. 1 and 2 before the Learned
Trial Judge may be summed up thus;
On 29-09-2014 at 16.00 hrs the victim and his friend were going by
motor cycle bearing no. WB-54L/2022 at Dubrajpur Illambazaz Highway. The
said motor cycle bearing no. WB-54L/2022 on Dubrajpur Illambazar Highway.
The said motor cycle was driven by Dayamay Hazra and Tanmay Biswas was
the Pillion rider of the said motor cycle. The said motor cycle was proceeding
towards Illambazar and from Dubrajpur and with excessive high speed rash
and negligently and near Sunmuni bus stop the said motor cycle dashed one
Kalipada Baski and his wife heavily and they also fell down and received
serious injuries and both of them died shortly. The accident took place due to
rash and negligent driving by the driver of the said motor cycle.
The victim was a fruitseller and used to earn Rs. 3,300/- per month.
Pursuant to filing of this case notice was issued upon the opposite party
vehicle owner and opposite party Insurance Company. Opposite party vehicle
owner did not contest the case. Opposite party United India Insurance Co. Ltd
contested the case by filing written statement. ISSUES were framed and
evidence was adduced. Learned Trial Judge upon considering the evidence
adduced and upon hearing the Learned Advocates was pleased to dispose the
claim case by observing and directing as follows:

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‘Hence it is ORDERED that the MAC Case being no-187/2015 be and the
same is hereby allowed on contest against the OP/United India Insurance Co.
Ltd.
That the petitioner no. 1 Shila Biswas and 2. Bhagrirath Biswas are
being the legal heirs of the deceased Tanmoy Biswas are entitled to get
compensation of Rs. 500,000/- (Rupees five lakh) only along with interest @9%
from the date of filing this case (04.09.2015) and increased @5% of
compensation amount per year from 25-04-2019 to till final realization of the
compensation amount u/s. 163A of the MV Act from the OP/United India
Insurance Co. Ltd. The claimants/petitioners also entitled to get cost of
litigation from the OP/United India Insurance Co. Ltd.
The O.P./United India Insurance Co. Ltd. is hereby directed to pay the
aforesaid amount of Rs. 500,000/-(Rupees five lakhs) only along with interest
and enhanced increased amount and cost of litigation as aforesaid by issuing
an account payee cheque in the name of the petitioners/claimants as aforesaid
within two months from this date. The insurance company first shall pay the
compensation and for want of driving license the insurance company shall
recover the amount from the owner.
The appellant/vehicle owner being aggrieved by the Judgment and Award
passed by the Learned Trial Judge has come up will the instant appeal.

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Heard Learned Advocate for the appellant and Learned Advocate for the
respondent no-3/insurance company. Perused the evidence adduced and
materials on record.
Learned Advocate for the appellant submits that the respondent no-3
Insurance Company could not establish before the Learned Trial Court that the
offending vehicle was driven without valid driving license. Thus the Learned
Trial Judge erred in directing recovery from the vehicle owner.
Learned Advocate for the respondent no-3 Insurance Company submits
that vehicle owner did not appear and prove that the driver had valid driving
license thus it is an admitted position there was no driving license.
The following decisions are relied upon.
Lal Chand VS Oriental Insurance Company Ltd.
2006 (3) TAC-321(S. C.)
Iffco Tokio General Insurance Co. Ltd. VS Geeta Devi and ors.
Reported in 2023 ACJ 2701.
Skandia Insurance Co. Ltd. VS Kakilaben Chandravadan and ors.
Reported in AIR-1987 S.C. 1184.
Hind Samachar Ltd. (Delhi Unit) VS National Insurance Co. Ltd. and
ors.

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2025(4) TAC. 358(SC).
In the instant case the Learned Trial Court absolved the Insurance
Company from paying compensation on the ground the driver did not hold a
valid license. Now upon perusing the evidence of OPW-1 who was the
investigating officer of the accidental death case in his examination in chief has
stated that all the articles of the offending vehicle being no. WB54L. 2202
except Driving License of the offending driver was seized. He further stated that
he did not take any steps for want of driving license of Dayamay Hazra.
In cross examination OPW. 1 stated that he did not search whether the
Driving license of the offending driver was in his pocket or not.
At the very outset it is to be considered that there was no issue framed
whether driver of offending vehicle had driving license, and it is on the basis of
the evidence of Investigating Officer Learned Court came to the conclusion that
as no driving license was seized from the offending vehicle the driver of
offending vehicle was driving without driving license. Mere non-seizure of
driving license is not sufficient to conclude that driver was driving without
driving license.
Section 3 of the Motor Vehicles Act 1988 provides that no person shall
drive a motor vehicle in any public place. Unless he holds an effective driving
license issued to him authorising him to drive and Section 5 of the said out
prohibits the owner or person in charge of the vehicle to permit a person to
drive the vehicle without driving license. Section 180 of the Act provides that

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whoever being the owner or person in charge of a motor vehicle causes or
permits any other person who does not satisfy the provisions of Section 3 or
Section 4 of the Act to drive the vehicle shall be punishable with imprisonment
for a term which may extend to three months or with fine which may extend to
one thousand rupees or both. Thus it is clear that a owner of vehicle cannot
permit a vehicle to be driven by any person who is not having driving license to
drive the said vehicle. However it is also clear from section 180 that the
allegation of permitting a vehicle to be driven without driving license must be
proved. Thus mere non availability of driving license inside the vehicle is not a
ground to conclude that the driver did not have a valid driving license.
Although a driving license is one of the valid documents to be kept with the
person who drives the motor vehicle but it is not necessary that the said
license has to be kept inside the vehicle. A person may keep his driving license
in his custody, which may be his pocket or money purse. Moreover in the
instant case the driver of the offending motor cycle was not owner. When a
person is driving motor cycle of another person it is quite natural that driving
license will not be kept inside the vehicle. The police authority did not search
the pocket of victim driver and being uncertain as to whether vehicle was
driven without driving license could not submit charge-sheet against
appellant/vehicle owner under Section 180 of the Motor Vehicles Act 1988.
When there is uncertainty pursuant to investigation by Police Authority it
cannot be said that the offending vehicle was permitted to be driven without
driving license.

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Now the second point to be taken into consideration is whether owners of
vehicle are duty bound to peruse the driving license before permitting any
person to drive the vehicle owned by him and keep a Xerox copy inside the
vehicle. This issue has two fold aspects. Firstly when a vehicle owner employs a
paid driver to ply his vehicle, he is under obligation to ascertain as to whether
the driver engaged by him has a valid driving license. Secondly in case where
vehicle owner permits his vehicle to be used by a person on one occasion where
the said person is known to the vehicle owner and is having ability to drive
vehicle to the knowledge and belief of the vehicle owner, in such a case perusal
of driving license of such person may not be strictly required. In the event the
vehicle owner has acted bona-fide he cannot be alleged to have violated policy
conditions. On the other hand the person not having driving license if drives
the vehicle will be guilty under Section 181 of the Motor Vehicles Act 1988. As
the vehicle driven was motor cycle and the motor cycle is not driven by owner
of the vehicle, and paid drivers are usually not engaged to ply motor cycle it
can be reasonably presumed that driver of the motor cycle was not paid driver
engaged by vehicle owner.
As man is a social being and comes in contact with different people and
faces different situations, at times a vehicle owner is required to permit his
vehicle to be driven by another person who is not his paid driver in case of
exigency for his own need, and in some situations of exigency a vehicle owner
have to permit his vehicle to be used by another person in case of urgent need
of the said person. In both the cases it may not be feasible to peruse the driving

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license of the said persons but simple knowledge and belief about the said
persons ability to drive and bona-fide belief of their having driving license may
be sufficient. Thus upon discreet enquiry by Insurance Company it can be
ascertained as to whether the act of violation policy condition by the vehicle
owner was wilful or bona fide.
The issue of being absolved of paying compensation or the right to
recover after making payment of compensation was dealt with and decided by
this court in the case of National Insurance Co. Ltd VS Liraza Bibi and Anr.
FMA-1003 of 2025 and reported in MANU/WB/0213/2026. It was observed as
follows:
‘ Now with regard to the submission of pay and recovery it is well settled
that in case of violation of Insurance Policy Condition, the Insurance Company is
entitled to recover from the insured the compensation amount awarded after
2026:CHC-AS:691 7 making payment to the claimant/victim. However before
proceeding to recover from the insured, the compensation amount the insurer
upon making necessary enquiry and upon giving the vehicle owner an
opportunity of being heard shall ascertain as to whether the violation of policy
condition was bona fide unintentional or deliberate. Thereafter the Insurance
Company may decide whether to proceed against the insured or to condone such
breach. ‟ It was further observed as follows:

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“In the case of Reliance General Insurance Company Ltd. VS Niyati
Kumar and ors FMA-1326 of 2025 reported in 2025 SCC Online Cal 8886 it
was observed as follows:
“Thus it is well settled that in order to absolve from liability of paying
compensation and to obtain an order of pay and recovery it is mandatory for the
Insurer to prove breach of the condition of Insurance Policy. Although all
‟
Insurance Companies are not „State within the meaning of Article 12 of the
Constitution of India but the fact that third party Motor Insurance Law is a
beneficial Legislation and it has a public aspect and its object is to protect the
public (third parties) from financial losses due to accidents caused by a motorist
by ensuring that victims are compensated. On one hand, and also to protect the
vehicle owners from bearing huge burden of compensation in case of accidents
where the insurance policy condition is complied with on the other hand. Thus
considering the public aspect of Motor Insurance Claims Insurance Companies
have responsibilities to ensure that genuine accident claims are settled without
delay and the vehicle owner who has not violated the terms of policy is not
unnecessarily harassed. In the event the Insurance Company has reasons to
believe that policy conditions were violated it should conduct an enquiry issue
notice upon the vehicle owner and give him an opportunity of being heard. Where
the Insurance Company is satisfied after enquiry that conditions of policy were
not violated the allegations of violation of policy, namely the vehicle was driven
without permit or without valid driving license should not be raised in Court.
However upon Enquiry if the Insurance Company finds that there was violation

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of terms of policy such findings should be recorded by Insurance Company and
necessary evidence should be adduced in Court. In such a case the Enquiry
Report should also be filed in Court, apart from adducing evidence. A vehicle
owner after getting his vehicle insured proceeds with the assumption that
Insurance Company will settle the compensation claim in case of accidents thus
the vehicle owners ordinarily do not appear in Court to contest claim cases. Thus
in the event there is allegation of violation of condition of Policy the vehicle
owners should be given an opportunity of being heard before such allegation
being made in Court and before being examined in Court as witness. Upon such
enquiry being made the Insurance Company can decide as to whether policy
violation was minor or major and whether to condone such violation or recover
the amount of compensation paid.”
It was also observed in the case of Lirasa Bibi as follows.
„In the event the violation of policy condition appears at the time of
argument when the case is at the verge of disposal and there was no scope for
the Insurance Company to make preliminary enquiry and give the vehicle owner
an opportunity of being heard the Learned Tribunal after it arrives at a finding
that there was breach of policy condition shall after directing payment by the
Insurance Company to the claimant issue show cause upon the Insured/vehicle
owner as to „why the compensation amount directed to be paid shall not be
recovered. ‟ Copy of the Award shall also be enclosed with the notice. Upon
hearing the vehicle owner/insured with regard to violation of policy condition if

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the tribunal/Court comes to the conclusion that there was violation of policy
condition which was not bona fide and without sufficient explanation, the
Court/Tribunal will order recovery of amount directed to be Paid by Insurance
Company. In the normal course where vehicle owners receives notice of claim
case they ordinarily do not appear in Court on the ground that Insurance
Company will settle the claim. However if subsequent allegation is made in the
written statement about violation of policy condition and additional issue in this
regard is framed, and evidence adduced by the Insurance Company further
notice in this regard should be issued upon vehicle owner to meet the allegation.
In the event the Court/Tribunal is of the view that notice to be issued after
considering the evidence adduced in this regard Learned Tribunal may issue
notice after evidence. In any event prior to directing recovery after payment notice
in this regard must be issued specifically and the vehicle owner should be given
an opportunity of being heard. In the instant case the vehicle owner/insured was
not put to notice with regard to violation of policy condition for the purpose of pay
and recovery. Thus no order with regard to recovery can be directed without the
Appellant Insurance Company causing enquiry and giving the vehicle
owner/insured an opportunity of being heard. Thus the Appellant National
Insurance Company Limited is granted liberty to cause service of notice upon the
vehicle owner/insured annexing copy of the order of trial Court and this order
and upon hearing him with regard to violation of policy condition and recovery of
compensation amount awarded. Upon hearing the insured respondent no-2
Subrata Nath the Appellant National Insurance Company Limited will decide

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whether to proceed against the said respondent for recovery. In the event
recovery proceedings is instituted parties will be entitled to take relevant points
involved to enable the Court/Tribunal to arrive at a just decision.‟
Upon considering the facts of the case and considering the judicial
decisions this Court is of the view that although no driving license was
recovered from the offending vehicle but neither police authority came to a
finding nor the Insurance Company conducted enquiry whether the offending
vehicle was driven without driving license. However, it appears from record that
the contention made by the respondent no-3 in written statement that the
appellant/vehicle owner did not comply with the provisions contained in
Section 134(c) of the Motor Vehicles Act 1988 by furnishing to the Insurance
Company date particulars of the accident particulars of injury, name of driver,
and particulars of policy. Thus there is a violation of the provision of Section
134(c) of Motor Vehicles Act which is punishable under Section 187 of the
Motor Vehicles Act 1988. Hence some negligence is there on the part of vehicle
owner appellant. Thus the vehicle owner/appellant should be directed to bear
some portion of the compensation liability. In the facts of this case it would be
just and reasonable to direct appellant/vehicle owner to bear 5% of the
compensation awarded which comes to Rs. 25,000/-.
Hence this Appeal FMAT (MV) 70 of 2025 stands disposed. The
Judgment and Award dated 07-02-2024 passed by Learned Additional District
nd
Judge 2 Court Suri Birbhum in MAC Case No-187 of 2015 stands modified to

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the extent that the appellant/vehicle owner shall bear 5% of the principal
compensation awarded, which comes to Rs. 25,000/-. The appellant shall pay
Rs. 25,000/- to respondent no-3 United India Insurance Company Ltd. within
8 weeks from the date of communication of this order. The payment may be
made directly to the Insurance Company or deposited in the Executing Court.
On deposit/payment of Rs. 25,000/- the Execution case will stand disposed. In
the event there is failure the amount shall be recovered in accordance with law.
Urgent photostat certified copy of this order, if applied for, should be
made available to the parties upon compliance with the requisite formalities.

(Biswaroop Chowdhury, J.)