Himachal Pradesh High Court
Reserved On : 22.4.2025 vs Jainam & Others on 17 July, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:23010 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No.90 of 2023 Reserved on : 22.4.2025 Date of decision: 17.7.2025 Gurpreet Singh ...Appellant.
Versus
Jainam & others ...Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes.
For the Appellants : Mr. Manohar Lal Sharma, Advocate.
For the Respondents : Respondent No.1 - ex-parte.
Ms Sneh Bhimta, Advocate, as Court Guardian for respondent No.2.
Mr. Jagdish Thakur, Advocate, for respondent No.3.
Vivek Singh Thakur, Judge The appellant, by way of this appeal, has assailed award dated 1st December, 2022 passed by the Motor Accident Claims Tribunal, Chamba in MACT Registration No. 95 of 2020 titled as Jainam and another vs. Go Digit General Insurance Company Ltd. and another, whereby liability to pay compensation, to the tune of Rs.6 lacs along with interest at the rate of 9% per annum from the date of filing of petition till 2025:HHC:23010 ...2...
realization thereof, has been fastened upon present appellant who was respondent No.2 in the claim petition.
2. Respondents No.1 and 2 were claimants before the Motor Accident Claims Tribunal (in short 'MACT'), respondent No.3 is Insurance Company which was respondent No1 before the MACT and appellant, registered owner of the vehicle in question, was respondent No.2 before the MACT.
3. The accident, cause of present lis, had occurred on 7th March, 2020 at about 10.45 AM, when car bearing Registration No.PB-11R-1984, being driven by Husain Ali, predecessor of the claimants, from Chamba to Silagharat met with an accident at Nand Gaon near Silagharat as it went off the road causing injuries to four occupants of vehicle including driver Husain Ali. Husain Ali, Shukar Deen and Roshan Deen succumbed to injuries and expired on the same date. Rafi Mohammad had received minor injuries.
4. Regarding this accident, FIR No. 71 dated 7th March, 2020 was registered in Police Station Sadar Chamba wherein as per investigation, Husain Ali was found driving the vehicle rashly and negligently and report under Section 173 Cr.P.C. was submitted by the Investigating Officer in the Court on 31st March, 2020.
5. In claim petition, preferred by claimants under Section 163-A of Motor Vehicles Act (in short 'MV Act'), apart from other details, it was stated in Columns No. 5, 10 and 15 that deceased 2025:HHC:23010 ...3...
Husain Ali was driver of vehicle having monthly income of `3300/- per month and appellant Gurpreet Singh was owner of the motor vehicle.
6. In reply filed by Insurance Company, it was contended that Husain Ali had purchased the vehicle from Jasvir Singh on 18.02.2020 to whom vehicle was sold by Gurpreet Singh on 03.04.2019 and therefore, claim petition on behalf of his legal heirs was not maintainable under Section 163-A of MV Act because Husain Ali, driving the vehicle as an owner, was himself rash and negligent and therefore, claim petition was not maintainable, and further that vehicle was being driven in contravention of terms and conditions of Insurance Policy and insured Gurpreet Singh had intentionally made the breaches of terms and conditions of Policy and, therefore, Insurance Company was not liable to pay any compensation.
7. In response to claim petition, reply was filed by Gurpreet Singh on 23rd July, 2021. In preliminary objections, it was stated that petition was not maintainable in present form and petitioners had not come to the Tribunal with clean hands. In reply on merits, respondent had admitted the place, date and time of accident as well as registration of FIR as detailed in paras 8 and 9 of the claim petition. Contents of paras 5, 10 and 15 of claim petition were denied being incorrect with averments that petitioners be put to strict proof to prove the averments made in these paras. Registration number of car PB-11R-1984 as 2025:HHC:23010 ...4...
mentioned in para 14 of the petition was also denied by referring registration number of car mentioned in FIR and final report of Police/Investigating Officer wherein registration number of vehicle involved in accident has been mentioned as PB-11R- 1987. Except disputing registration number and registered owner, there is no specific denial to the averments made in the petition. With respect to registration number of vehicle and ownership recorded therein also, no response was filed to the clarification placed on rejoinder that police official had mentioned wrong registration number as 1987 instead of 1984. It is case of denial simplicitor on the part of Gurpreet Singh.
8. For leading the evidence, appellant Gurpreet Singh had not appeared in the witness box and on his behalf on 28.9.2021 his counsel had tendered in evidence the Registration Certificate of vehicle No.PB-11R-1984 as Ext.R-1, copy of Driving Licence of Husain Ali Ext.R-2 and Insurance Policy/Private Car Liability Only Policy Ext.R-3 issued by the Insurance Company. No other evidence was led on behalf of appellant Gurpreet Singh and evidence on his behalf was closed on 14.01.2022.
9. Insurance Company on 27.10.2021 had examined RW-1 Kudeep Singh Senior Associate Claims Legal of Insurance Company and RW-2 Kishan Chand, Criminal Ahalmad Office of Chief Judicial Magistrate, Chamba. Thereafter, evidence of Insurance Company was closed on 14.01.2022.
2025:HHC:23010 ...5...
10. Though at the time of leading the evidence, the respondent-Insurance Company had summoned the record of report, submitted by the police, from the Court of Chief Judicial Magistrate, had proved some documents appended therewith, i.e. copies of affidavits Ext.RW2/A and Ext.RW2/B and report under section 173 Cr.P.C. Ext.RW2/C, in examination-in-chief of RW2 Kishan Chand on 27th October, 2021, however, copies of Registration certificate of vehicle, copy of driving licence of Husain Ali and Insurance policy i.e. Private Car Liability Only Policy issued by the Insurance Company being true and correct copies of original were also proved on record in evidence as Ext.R1, Ext.R2 and Ext.R3 respectively, in cross-examination conducted on behalf of appellant, these were not disputed by any party.
11. Reply of respondent No.2 (appellant herein) to petition is not only denial simiplictor but evasive also. It is well settled that where response to petition does not deal with each allegation of the fact stated in the petition/complaint and respondent/defendant is making the denial simplicitor but evading the answers to the point of substance then such facts shall be taken to be admitted.
12. The Supreme Court in Sushil Kumar vs. Rakesh Kumar reported in (2003)8 SCC 673 has observed as under:-
"69. In terms of Order 8, Rule 3, a defendant is required to deny or dispute the statements made in the plaint categorically, as an evasive denial would amount to an 2025:HHC:23010 ...6...
admission of the allegation made in the plaint in terms of Order VIII, Rule 5 of the Code of Civil Procedure.
70. Under Section 58 of the Indian Evidence Act a fact admitted need not be proved.
71. In paragraph 15 of the written statement, the respondent has not specifically contended that the statements made in paragraph 18 of the election petition are incorrect or how they are so. Merely the said allegations have been denied as being imagination of the election petitioner without making a statement of fact that Rohit Kumar is not the elder brother of the respondent or in fact younger to him. Such an evasive denial attracts Order 8, Rule 5 of the Code of Civil Procedure. The statements made in paragraph 18 of the election petition must, therefore, be deemed to have been admitted. The Birla Institute of Technology, Mesra, has produced the Application for Under-graduate Admission for Rohit Kumar, wherein his date of birth has been shown as 1.3.1979. Even in the inquiry made by the Chief Electoral Officer, the respondent had not specifically denied the said fact. The Governor of the State of Bihar in his order (Ext.4) observed:
"Sri Rakesh Kumar has not denied that his elder brother is a student of Birla Institute of Technology. Documents furnished by Birla Institute of Technology about the age of his elder brother are extremely significant and relevant to determine Shri Rakesh Kumar's likely age. The documents furnished by the Institute reveal that the date of birth of the elder brother of Sri Rakesh Kumar is 1.3.1979. Hence, on 19.5.99 Sri Rakesh Kumar's elder brother was 20 years, 2 months and 18 days old. So, it can be safely and conclusively assumed that on 19.5.99 Sri Rakesh Kumar, when he was sworn in as a minister, was less than 20 years, and definitely much less than 25 years, the qualifying age to become a member of the State Legislative Assembly."
72. The High Court, on the other hand, observed :
"...It is true that it has not been specifically stated in the reply to paragraph 18 of the election petition that Rajesh Kumar happens to be younger brother of Rakesh Kumar but making him an elder brother has been totally denied. In that way, it cannot be said that only evasive reply is there and when this fact could not be proved by any cogent evidence from the side of the election petitioner that Rajesh Kumar happens to be the elder brother of the respondent Rakesh Kumar rather when contrary 2025:HHC:23010 ...7...
evidence is there from the side of the respondent then the age group of Rohit Kumar @ Rajesh Kumar does not come in aid to the election petitoner to prove the underage of Rakesh Kumar the respondent."
73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order VIII, Rules 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidences adduced on behalf of the appellant in this behalf in details but merely rejected the same summarily stating that the vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid.
74. In Badat and Co vs. East India Trading Co. AIR 1964 SC 538, this Court upon referring to Order VIII, Rules 3, 4 and 5 of the Code of Civil Procedure, observed : (AIR p.545, para 11) "These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. The first paragraph of r. 5 is a re- production of O. XIX, r. 13, of the English rules made under the Judicature Acts. But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do justice between those parties, for which Courts are intended, the rigor of r. 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise 2025:HHC:23010 ...8...
than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original side of the Bombay High Court, we are told, the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non-suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed. In this context the decision in Tildesley v. Harper will be useful. There, in an action against a lessee to set aside the lease granted under a power the statement of claim stated that the donee of the power had received from the lessee a certain sum as a bribe, and stated the circumstances; the statement of defence denied that that sum had been given, and denied each circumstance, but contained no general denial of a bribe having been given. The Court held, under rules corresponding to the aforesaid rules of the Code of Civil Procedure, that the giving of the bribe was not sufficiently denied and therefore it must be deemed to have been admitted. Fry J. posed the question thus : What is the point of substance in the allegations in the statement of claim ? and answered it as follows :
"The point of substance is undoubtedly that a bribe was given by Anderson to Tildesley, and that point of substance is nowhere met ........ no fair and substantial answer is, in my opinion, given to the allegation of substance, namely that there was a bribe. In my opinion it is of the highest importance that this rule of pleading should be adhere to strictly, and that the Court should require the Defendant, when putting in his statement of defence, and the Plaintiff, when replying to the allegations of the Defendant, to state the point of substance, and not to give formal denials of the 2025:HHC:23010 ...9...
allegations contained in the previous pleadings without stating the circumstances. As far as I am concerned, I mean to give the fullest effect to that rule. I am convinced that it is one of the highest benefit to suitors in the Court."
It is true that in England the concerned rule is inflexible and that there is no proviso to it as is found in the Code of Civil Procedure. But there is no reason why in Bombay on the original side of the High Court the same precision in pleadings shall not be insisted upon except in exceptional circumstances..."
13. In Gian Chand and Brothers and another vs. Rattan Lal alias Rattan Singh reported in (2013)2 SCC 606, relying upon Sushil Kumar vs. Rakesh Kumar reported in (2003)8 SCC 673, it has been observed that:
"25. We have referred to the aforesaid Rules of pleading only to highlight that in the written statement, there was absolutely evasive denial. We are not proceeding to state whether there was admission or not, but where there is total evasive denial and an attempt has been made to make out a case in adducing the evidence that he was not aware whether the signatures were taken or not, it is not permissible. In this context, we may profitably refer to a two- Judge Bench decision in Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 wherein, while dealing with the pleadings of election case, this Court has held thus: -
"73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order 8 Rule 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidence adduced on behalf of the appellant in this behalf in detail but merely rejected the same summarily stating that vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid."
2025:HHC:23010 ...10...
We may state with profit that in the said case, reliance was placed on Badat and Co. v. East India Trading Co. AIR 1964 SC 538
26. Scrutinized thus, the irresistible conclusion would be that the defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings. The courts below had correctly rested the burden of proof on the defendant but the High Court, in an erroneous impression, has overturned the said finding."
14. In Smriti Madan Kansagra vs. Perry Kansagra reported in (2021)12 SCC 289, relying upon Badat & Co. vs. East India Trading Co. reported in AIR 1964 SC 538, the Supreme Court has held as under:-
"77. Smriti also averred that Perry travels for 18 days in a month outside Kenya. In response to such assertion, Perry in the written statement has evasively denied the same however it has not been disclosed as to for how many days he actually travels. In terms of Order 8 Rule 3 of CPC, it shall not be sufficient for the defendant to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth. Reference will be made to the judgment of this Court in Badat and Co. Bombay v. East India Trading Co.(AIR 1964 SC 538), wherein, this Court considered the provisions of Order VIII, Rule 3, Rule 4 and Rule 5 of the Code and held as under: (AIR p.545, para 11) "11. ..... These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing 13 AIR 1964 SC 538 from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."
78. A perusal of the evasive reply in the replication filed by him, which is part of pleadings in terms of Order 8 Rule 9 of the Code, shall be treated as admission."
2025:HHC:23010 ...11...
15. In Thangam and another vs. Navamani Ammal reported in (2024) 4 SCC 247 it has been held by the Supreme Court that "25. Order 8 Rules 3 and 5 CPC clearly provides for specific admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order 8 Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.
26. The requirement of Order 8 Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion."
16. It is settled law that pleadings in absence of proof cannot be made basis for deciding an issue in favour of a party. Hon'ble Supreme Court in Anvar P.V. vs. P.K. Basheer and others (2014) 10 SCC 473 has held as under:-
"1. Construction by plaintiff, destruction by defendant. Construction by pleadings, proof by evidence, proof only by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the Court only after the stage of relevancy and admissibility. These are some of the first principles of evidence. What is the nature and manner of admission of electronic records is one of the principal issues arising for consideration in this appeal."
17. In Manager, Reserve Bank of India, Bangalore vs. S. Mani and others, (2005) 5 SCC 100, the Apex Court has held as under:-
"19. Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the respondents herein that they had worked 2025:HHC:23010 ...12...
continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. In any event the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30.5.1988 and 11.4.1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of non-response to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so."
18. It is also settled principle of law that evidence led by parties must be in consonance with their pleadings and evidence led contrary to pleadings cannot be considered. Applying rule of divergence between pleading and evidence, any evidence contrary to pleading is to be ignored. No evidence can be looked into upon a plea which was never put forward. (See Siddik Mahomed Shah vs. Mt. Saran and others, AIR 1930 Privy Council 57(1)}. Considering this issue, the Apex Court in Janak Dulari Devi and another vs. Kapildeo Rai and another, (2011) 6 SCC 555, has held as under:-
"9..........When what is pleaded is not proved, or what is stated in the evidence is contrary to the pleadings, the dictum that no amount of evidence, contrary to the pleadings, howsoever cogent, can be relied on, would apply......."
19. Learned counsel for appellant referring Ext.RW2/A and Ext.RW2/B, has submitted that vehicle was sold by Gurpreet Singh to Jasvir Singh who in turn had further sold to Husain Ali and therefore, Husain Ali was owner of the vehicle and thus, his 2025:HHC:23010 ...13...
legal representatives cannot maintain the petition against Gurpreet Singh as Husain Ali himself was owner of the vehicle.
20. Gurpreet Singh, as noticed supra, has not denied the fact stated in claim petition that Husain Ali was driver and Gurpreet was owner. He is completely silent about selling of vehicle by him to Jasvir Singh and thereafter, by Jasvir Singh to Husain Ali.
21. Learned counsel for Gurpreet Singh has tendered in evidence the copy of Registration Certificate of vehicle, driving licence of Husain Ali and Insurance Policy as Ext.R1, Ext.R2 and Ext.R3 and in cross examination of RW1, on behalf of Gurpreet Singh, it has been specifically proved by putting a question that as per record fitness of vehicle bearing No. PB-11R-1984 was valid upto 22nd March, 2012. Perusal of Ext.R1 also depicts that Gurpreet Singh was registered owner. This document was proved by appellant Gurpreet Singh and there is no endorsement of transfer of vehicle by way of sale or otherwise in favour of Jasvir Singh and/or Husain Ali. Driving licence of Husain Ali was also produced by Gurpreet Singh. Insurance Policy Ext.R3 indicates that vehicle was insured by Gurpreet Singh from 13th April, 2019 to 12th April, 2020 for Basic Third Party Liability and Legal Liability to Paid Driver with premium for Basic Third Party Liability and Legal Liability to paid driver was `1800/- (i.e. 1750 + 50) and by adding `326/- towards CGST, appellant Gurpreet had paid final premium of `2126/-.
2025:HHC:23010 ...14...
22. For non-specific denial and evasive reply and also for documents placed on record, the only inference which can be drawn is that it was Gurpreet who was not only registered owner but also the person who had purchased the Insurance Policy by paying additional premium of `50/- for indemnifying the Legal Liability to the Paid Driver.
23. Though Insurance Company has proved on record the affidavits Ext.RW2/A and Ext.RW2/B of Jasvir Singh and Gurpreet Singh respectively, claiming that vehicle was transferred from Gurpreet to Jasvir and from Jasvir to Husain Ali but these affidavits only depict that affidavit Ext.RW2/B was sworn by Gurpreet Singh only stating that he had sold the vehicle to Jasvir Singh on 3rd April, 2019 and Ext.RW2/A is affidavit of Jasvir Singh stating that he had sold the vehicle to Husain Ali on 18th February, 2020, but it is relevant to notice that there is no affidavit of Husain Ali on record so as to draw inference and to substantiate the claim in affidavit Ext.RW2/A that vehicle was purchased by Husain Ali. This affidavit is unilateral affidavit not signed or endorsed or substantiated by either signatures of Husain Ali or any other document admitting to purchase of vehicle by Husain Ali from Jasvir Singh.
24. Neither Gurpreet Singh nor Jasvir has been examined as witnesses to prove the contents and veracity of Ext.RW2/A and Ext.RW2/B. In the reply filed by Gurpreet Singh, there is no reference of sale of vehicle to Jasvir and thereafter by Jasvir to 2025:HHC:23010 ...15...
Husain Ali. Except simplicitor denial, there is no reference of plea in the reply that Husain was not driver but was owner as the vehicle was sold by Gurpreet Singh to Jasvir and by Jasvir to Husain Ali. In absence of pleading, affidavits Ext.RW2/A and Ext.RW2/B are of no help to Gurpreet as documents placed on record are not supported by pleadings. Even otherwise, documents produced in evidence on behalf of Gurpreet Singh are falsifying the sale of vehicle to Jasvir and/or to Husain Ali as Registration Certificate and Insurance Policy placed on record by Gurpreet Singh established that Gurpreet Singh was owner, who had also purchased Insurance Policy. In case Gurpreet Singh was not owner, there was no occasion for him to purchase Policy in 2019 particularly when Registration Certificate was valid upto 2012 only and vehicle was sold to Jasvir on 3.4.2019 whereas Insurance Policy was purchased on 12.4.2019.
25. Therefore, from the above material on record, it can be definitely construed that it was Gurpreet Singh who was registered owner of vehicle at the time of accident. He has claimed the selling of vehicle on 3rd April, 2019 to Jasvir Singh but it is also apt to record that it has come in evidence that fitness of vehicle was valid upto 22nd March, 2012 only and at the time of accident, Registration Certificate was not valid. Though Gurpreet Singh has purchased the insurance cover with additional insurance for liability of Insurance Company to pay compensation to the paid driver but for non-fitness of vehicle 2025:HHC:23010 ...16...
Insurance Company cannot be fastened liability to indemnify the owner for payment of compensation towards the driver because breach of term of Policy.
26. It has been contended that in case Husain Ali was driver of vehicle, then petition under Section 163-A of Motor Vehicles Act was and is not maintainable.
27. For substantiating aforesaid plea, judgment in Ramkhiladi and another vs. United India Insurance Company and another reported in (2020)2 SCC 550 has been relied upon.
28. In Ramkhiladi's case, it was contended that deceased driver of offending vehicle was not the third party in respect to insured motor vehicle and under the Motor Vehicles Act against the statutory policy only, third party claims were maintainable under Section 163 A of MV Act. In present case, Policy is not restricted to third party claim but by paying additional premium liability towards paid driver has also been insured. Therefore, this judgment is not relevant in present case because in present case by extending the risk covered policy has to be considered as Contractual Policy which covers risk of driver in addition to third party risk covered under the Act Policy.
29. In Ramkhiladi's case, vehicle was borrowed by the person who was driving the vehicle and, therefore, it was held that he had entered into the shoes of owner and claim petition was filed by his dependents, on account of his death in the accident, against the registered owner. In those circumstances, 2025:HHC:23010 ...17...
it was observed by the Apex Court that when driver had entered in the shoes of of the owner, he was equivalent to owner and his dependents were dependents of the person to be treated as the owner. Therefore, petition for claim by the owner against the owner was not maintainable, because one and the same person cannot be giver and recipient at one and the same time.
30. In present case, as has been inferred, deceased was neither proved either owner nor a person who had entered in the shoes of the owner. Therefore, judgment in Ramkhiladi's case does not have any impact, on this count, in present matter.
31. In New India Assurance Company Limited vs. Sadanand Mukhi and others reported in (2009) 2 SCC 417 it has been observed by the Supreme Court that:
"12. It is not a case where even Section 163-A of the Act was resorted to. Respondents filed an application under Section 166 of the Act. Only an Act policy was taken in respect of the motor vehicle. Submission of the learned counsel that being a two-wheeler, the vehicle was more prone to accident and, therefore, whosoever becomes victim of an accident arising out of the use thereof would come within the purview of the term "a person" as provided for in Section 147 of the Act, in our opinion, is not correct.
13. Contract of insurance of a motor vehicle is governed by the provisions of the Insurance Act. The terms of the policy as also the quantum of the premium payable for insuring the vehicle in question depends not only upon the carrying capacity of the vehicle but also on the purpose for which the same was being used and the extent of the risk covered thereby. By taking an 'Act policy', the owner of a vehicle fulfils his statutory obligation as contained in Section 147 of the Act. The liability of the insurer is either statutory or contractual. If it is contractual its liability extends to the risk covered by the policy of insurance. If additional risks are sought to be covered, additional premium has to be paid. If 2025:HHC:23010 ...18...
the contention of the learned counsel is to be accepted, then to a large extent, the provisions of the Insurance Act become otiose. By reason of such an interpretation the insurer would be liable to cover risk of not only a third party but also others who would not otherwise come within the purview thereof. It is one thing to say that the life is uncertain and the same is required to be covered, but it is another thing to say that we must read a statute so as to grant relief to a person not contemplated by the Act. It is not for the court, unless a statute is found to be unconstitutional, to consider the rationality thereof. Even otherwise the provisions of the Act read with the provisions of the Insurance Act appear to be wholly rational."
32. It is apparent from observations made in Sadanand's case that in case in addition to the Act policy, owner of vehicle has purchased policy for risk covered beyond the statutory liability then it is contractual liability of the Insurance Company to indemnify the owner, meaning thereby that for purchase of Insurance Policy having contractual liability other than the statutory liability, a petition can be maintained under Section 163-A of MV Act.
33. In present case, Insurance Policy Ext.R3 clearly depicts that insured had purchased the policy covering the additional risk with respect to legal liability payable to the paid driver by making payment of `50/- premium. Therefore, petition under Section 163-A of Motor Vehicles Act on behalf of legal heirs of deceased driver is maintainable. Section 163A of MV Act reads as under:
"Section 163A - Special provisions as to payment of compensation on structured formula basis.-
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having 2025:HHC:23010 ...19...
the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
34. Contention that in present case deceased was a driver, therefore, the claim petition under the MV Act was and is not maintainable, but the dependents had to approach the Commissioner under the Workmen Compensation Act for getting compensation on account of death of the driver during the course of employment, is also not sustainable for bare provision of Section 167 of the MV Act, which reads as under:
"167. Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 2023) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the 2025:HHC:23010 ...20...
Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
35. From the language of Section 167 of MV Act, it is unambiguously apparent that where a dependent/claimant has a right to file a claim petition under Workmen's Compensation Act, on account of death of, or bodily injury to, any person giving rise to a claim for compensation under MV Act also, such person shall be entitled to compensation under either of the Acts, but not under both.
36. In present matter, there is nothing on record to depict that dependent of driver had also filed a claim petition under Workmen's Compensation Act, disentitling the dependents to avail remedy under the MV Act. Dependents had choice to opt to file claim petition under either of the Acts and they have preferred claim petition under Section 163-A of the MV Act.
37. For claiming compensation under Section 163-A of MV Act, negligence and rashness of the driver is not necessarily to be proved and, thus, the claim petition filed by dependents of driver under Section 163-A of the MV Act is maintainable, but not under Section 166 of the MV Act.
38. It is not a case where the registered owner had contracted with Insurance Company only under the provisions of Workmen Compensation Act/Employees Compensation Act but he has purchased the policy by paying additional premium 2025:HHC:23010 ...21...
towards the legal liability payable to the paid driver or his legal heirs. Therefore, petition under Section 163-A of MV Act providing compensation on the principle of no fault liability is maintainable.
39. It has also been contended on behalf of Gurpreet Singh that in view of provisions of Sections 18 and 19 of the Sale of Goods Act, the vehicle stood transferred to the purchaser at the time when affidavits were sworn and possession of vehicle was handed over by Gurpreet to Jasvir Singh and by Jasvir Singh to Husain Ali. As the Court has arrived at the opinion that Gurpreet Singh has failed to establish the transfer of vehicle to Jasvir Singh or Husain Ali and for his own act and conduct, it stands established that he was registered owner of vehicle and Husain Ali was driver of vehicle, this plea is of no help to appellant Gurpreet Singh.
40. Learned counsel for Insurance Company has also referred the judgment in National Insurance Company Limited vs. Kamal Kishore and others reported in 2019 (3) Shim.LC 1626, wherein in similar circumstances, after relying upon the judgment passed by the Supreme Court in Narinder Singh vs. New India Assurance Company Limited and others reported in (2014) 9 SCC 324, Insurance Company was directed to pay the compensation to the third party with right to recover the same from owner.
2025:HHC:23010 ...22...
41. Para 12 of Narinder Singh's case is relevant in this regard, which is as under:-
"12. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract."
42. Even the Coordinate Bench of this High Court in Kamal Kishore's case, after taking into consideration various pronouncements of the Supreme Court with respect to third party claimant, has held that Insurance Company can be fastened liability to pay compensation to third party claimant but with right to recover the same from owner.
43. It is also apt to record that claim petitions preferred by legal heirs of other two deceased occupants of the car have been allowed by fastening the liability upon the registered owner Gurpreet Singh and appeals preferred against those awards bearing FAO Nos. 91 and 92 of 2023 have been dismissed by the Coordinate Bench of this High Court on 24th August, 2024 by considering Gurpreet Singh as registered owner.
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44. In present matter, Insurance Company has issued Insurance Cover in favour of insured Gurpreet Singh, with Policy Issue date 12.4.2019, which was valid w.e.f. 13.4.2019, 00:00:01 till 12.4.2020, 23:59:59 hours, wherein legal liability to compensate the paid driver was also covered by paying additional premium of `50/-.
45. RW-1 Kuldeep Singh, Senior Associate (Claims) of the Insurance Company, in his cross-examination, had denied that insurance is issued after verifying the RC, fitness, etc. of the vehicle, with voluntary statement that Insurance Company blindly issues such Insurance Policies.
46. In view of the contractual agreement in the shape of Insurance Policy, issued by the Insurance Company blindly in favour of insured covering the compensation payable to the paid driver by charging `50/- additional premium, it is contractual liability of the Insurance Company to pay compensation to the dependents of driver. No doubt, for breach of Policy condition, Insurance Company shall be entitled to recover the amount paid to the dependants of the driver from owner Gurpreet Singh.
47. Learned counsel for the claimants has pleaded to give direction to the Insurance Company to pay the compensation to claimants and then recover from owner. In this regard, he has also referred pronouncement of Apex Court in Manager, Natinal Insurance Company Limited v. Saju P. Paul and another, (2013) 2 SCC 41; Manuara Khatun and others v. Rajesh Kumar Singh and 2025:HHC:23010 ...24...
others, (2017) 4 SCC 797; and Anu Bhanvara and others v. IFFCO TOKIO General Insurance Company Limited and others, (2020) 20 SCC 632, wherein in claim petition filed by dependents of gratuitous passengers, the Apex Court has held that though Insurance Company was not liable to indemnify the owner/insured by paying compensation to the claimants, however, considering facts and circumstances, direction was given to Insurance Company to pay first to claimants with right to realize the amount of compensation from the driver and/or owner.
48. In the aforesaid cases, there was no liability of the Insurance Company to pay compensation to the claimants of dependents, on account of death or injury caused to gratuitous passenger. In present case, accident occurred on 7.3.2020. At the time of accident, the deceased was of 38 years of age. Now, we are in 2025, but nothing has been paid to the claimants till date, in spite of the fact that contractual liability of Insurance Company to pay is there.
49. In the light of aforesaid judgments, applying doctrine of proportionality, and considering the fact that in present case Insurance Policy is also covering the driver of the vehicle, the Insurance Company is directed to first pay the compensation to the claimants and then recover the same from the insured, on the principle of 'pay and recover'.
2025:HHC:23010 ...25...
50. As per material on record, income of the deceased was `3,300/- per month and he was 38 years of age. At the time of death, he was having two dependents. Therefore, the dependants are entitled for compensation as per Second Schedule of MV Act. The accident occurred on 7.3.2020, whereas Second Schedule was amended vide Notification dated 22.5.2018, w.e.f. 22.5.2018. Now, Second Schedule stands omitted vide Act No.32 of 2019, w.e.f. 1.4.2022. At the time of occurrence of accident, amended Schedule was applicable, which reads as under:
"SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENT/INJURY CASES CLAIMS
1. (a) Fatal Accidents:
Compensation payable in case of Death shall be five lakh rupees.
(b) Accidents resulting in permanent disability:
Compensation payable shall be = [Rs.5,00,000/- x percentage of disability as per Schedule I of the Employee's Compensation Act, 1923 (8 of 1923)]:
Provided that the minimum compensation in case of permanent disability of any kind shall not be less than fifty thousand rupees.
(c) Accidents resulting in minor injury:
A fixed compensation of twenty five thousand rupees shall be payable:
2. On and from the date of 1st day of January, 2019 the amount of compensation specified in the clauses (a) to (c) of paragraph (1) shall stand increased by 5 per cent annually."
51. The MACT has awarded compensation of `6,00,000/-, but keeping in view the date of accident and increasing the the 2025:HHC:23010 ...26...
amount of compensation by 5% annually w.e.f. 1.1.2019, there shall be 10% increase on 1.1.2020, and the next 5% increase would have been payable on 1.1.2021. Therefore, an amount of `50,000/- as increase has to be added in the amount of `5,00,000/-, which comes to total amount of `5,50,000/-. The MACT has awarded interest @9% per annum. In my opinion this rate of interest is on higher side. Therefore, the claimants are entitled for interest @6% per annum.
52. Insurance Company is directed to pay the amount of compensation to the dependants/claimants either by paying it directly to the claimants or by depositing the same in the Registry of this Court on or before 30.9.2025.
In view of above discussion, with modification in the award passed by the MACT, in foresaid terms, present appeal is dismissed.
( Vivek Singh Thakur )
July 17, 2025(sd) Judge.