NEUTRAL CITATION
C/FA/219/2020 ORDER DATED: 01/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 219 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 219 of 2020
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HDFC ERGO GENERAL INSURANCE COMPANY LTD
Versus
PALUBEN BHIMABHAI RATHOD
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR NABIL BLOCH ADVOCATE FOR MR ASHOK H TRIVEDI(3665) for the
Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/08/2023
ORAL ORDER
1. The Insurance Company has challenged the judgment and award dated 04.09.2019 passed by the Motor Accident Claims Tribunal (Auxi.), Jamnagar in MACP No.416 of 2012.
2. The grounds inter alia raised are that the learned Tribunal erred in overlooking the pleadings and evidence on record, and has not Page 1 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined properly appreciated the oral evidence of the appellant's officer recorded at Exh.64. The learned Tribunal ought to have appreciated that the owner-cum-driver of the insured rickshaw was not holding valid license to drive auto rickshaw, and the learned Tribunal has further erred in not appreciating the RTO Certificate, Exh.53 in relation to the driving license of the insured rickshaw driver, and has overlooked the provisions of law. Further, the ground raised is to the effect that on the date of accident i.e. on 30.05.2012, there was no valid permit and the transport passenger rickshaw was plying on the public place without any permit, which has been affirmed by the R.T.O. Certificate, Exh.68 supported by the oral evidence of the R.T.O. officer, Exh.66.
3. Mr. Maulik J.Shelat, learned advocate for the appellant submitted that the factum of no Page 2 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined permit, on the date of accident, was raised before the Tribunal and was also proved. A witness from R.T.O. office, Alpesh Khimjibhai Devra was examined at Exh.68, who had deposed that the Rickshaw No.GJ-10-W-394, was not holding transport permit from 12.10.2012 to 11.10.2017, and has further deposed that involved auto rickshaw was transferred in the name of Hanifsha Valisha Shekh - opponent no.1, driver-cum-owner, on 28.03.2012, where the accident took place on 30.05.2012.
3.1 Advocate Mr. Shelat relying on the judgment of Amrit Paul Singh & Anr. Vs. Tata AIG General Insurance Company Ltd. & Ors., reported in AIR 2018 SC 2662, submitted that it is a bounden duty of the owner of the vehicle to prove by way of leading material evidence on record that he was holding permit on the date of accident. Mr. Shelat submitted that the Tribunal in the impugned matter has gone by way of Page 3 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined assumption and such assumption is only on the basis of cross-examination of the R.T.O., who has stated that when the vehicle gets transfer, necessary permit, R.C. Book, Insurance Policy, Fitness Certificates are verified, and thereafter as per rules vehicle gets transferred. 3.2 Advocate Mr. Shelat submitted that on the date of transfer whether the owner was holding a valid permit is for him to prove, since the assumption cannot be made only on the basis of rules and procedures admitted by the R.T.O. Officer, when the document is on record that the auto rickshaw no.GJ-10-W-394 was holding transport permit from 12.10.2012 to 11.10.2017, thus, the said permit, so issued is only after a period of five months from the date of accident; thus, that fact itself could lead to an inference that on 30.05.2012, there was no valid permit.
4. Advocate Mr. Nabil Bolch for Advocate Page 4 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined Mr. Ashok H. Trivedi for the respondent no.1, submitted that the grounds which has been raised are between the owner of the vehicle and the Insurance Company. The Tribunal has permitted the claimant to recover the amount from opponents. He stated that the Insurance Company has already deposited the money, and, thus, urged for disbursement of the amount.
5. Heard Mr. Maulik J. Shelat, learned advocate for the appellant and Advocate Mr. Nabil Bolch for Advocate Mr. Ashok H. Trivedi for the respondent no.1. The compensation amount has been granted of Rs.1,40,800/- to the claimant, which is under challenge. The owner and driver of auto rickshaw is opponent no.1. The Tribunal has observed that opponents have been duly served with notice. Here, in the present appeal too, the respondent no.2 has been served, but he has not preferred to appear before this Court. Page 5 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023
NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined
6. The facts of the case suggests that on 30.05.2012 at about 8:00 a.m., when applicant was at Kalavad from village Mota Panchdevda for purchasing medicine, and while she was crossing the road to go to clinic of Doctor Joshi, which is nearby to S.T. Depot, Kalavad, the driver of auto rickshaw bearing No.GJ-10-W-394, came in excessive speed and in rash and negligent manner and dashed her; as a result, she sustained severe injuries. The claimant was taken to Civil Hospital Kalavad for primary treatment, and thereafter at the hospital of Doctor Chovatiya, and subsequently to the hospital of Doctor Vora, where she was admitted from 31.05.2012 to 06.06.2012. The complaint was lodged against the driver of auto Rickshaw at Kalawad Police Station.
7. The learned Tribunal while considering the negligence aspect has taken into consideration the F.I.R. and panchnama produced Page 6 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined at Exh.35 and 36, which revealed that the auto rickshaw no.GJ-10-W-394 was involved in the accident, and the learned Tribunal was of the opinion that, had the driver taken care in driving, then the entire accident could have been avoided; thus, the Tribunal considered sole negligence of the driver of the auto rickshaw. 7.1 While dealing with the liability aspect, the learned Tribunal had considered the affidavit filed by the Assistant Manager of Insurance Company at Exh.64, certificate vide Exh.53 of the R.T.O. regarding the driving license of the driver of auto rickshaw, and had observed that the license was not for transport vehicle. The R.T.O. witness Harish Bholabhai deposed vide Exh.52 that the driver of the said auto rickshaw was holding non-transport auto rickshaw driving license at the time of accident, where in the cross-examination at page-2, he had admitted that the driver had come driving transport auto Page 7 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined rickshaw and it has been noted that at the time of the accident, auto rickshaw was driven without passenger.
8. The Insurance Company had contended before the Tribunal that the auto rickshaw was not having transport permit at the time of accident for which R.T.O. witness Alpesh Khimjibhai Devra had been examined at Exh.66, and he had deposed that the auto rickshaw no.GJ-10-W- 394 was holding the transport permit from 12.10.2012 to 11.10.2017. Admittedly the vehicle was on the road on 30.05.2012.
9. Section 66 of the M.V. Act, is regarding the provision for necessity of permits, and the section, thus, clarifies that no owner of a motor vehicle shall use or permit the use of the vehicle as transport vehicle in any place whether or not such vehicle is actually carrying any passengers or goods except in accordance with the Page 8 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined condition of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used. Thus, the section makes it clear that even if there is no passenger in the vehicle, the transport vehicle cannot be plied on the road without any valid permit, and the authorization of the permit by the Regional Officer or the State Transport Authority has to be proved by owner himself.
10. The learned Tribunal has erred in assuming the issuance of permit, where actually that fact was required to be proved by the owner of the vehicle. The R.T.O. Officer was examined, who deposed that the rickshaw driver was holding the permit only from 12.10.2012 to 11.10.2017. This reasoning is supported by the observation in Amrit Paul Singh & Anr. case, wherein the Hon'ble Supreme Court has observed that exception to the Page 9 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined necessity for permit section 66 are to be pleaded and proved. It was observed that, it cannot be taken aid for seeking absolution from liability; use of vehicle in the public place without a permit is a fundamental statutory infraction, where after observing the judgment of National Insurance Co. Ltd v. Swaran Singh and others, reported in AIR 2004 SC 1531, and Lakshmi Chand Vs. Reliance General Insurance, reported in AIR 2016 SC 315, the Hon'ble Apex Court was of the view that the principles laid down in both the judgments would not be applicable, where the insurance company had taken the plea that the vehicle in question had no permit, and nothing had been brought on record by the insured to prove that he had a permit of the vehicle, and, in that situation, the Apex Court has laid down that the onus cannot be cast on the insurer, and, therefore the Tribunal as well as the High Court, directed the insurer to pay the compensation Page 10 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined amount to the claimants with interest with the stipulation that insurer shall be entitled to recover the same from the owner and driver, and the said directions were in consonance with the principles stated in Swaran Singh & Ors. case appeartaiining to pay and recover principle.
11. In the present impugned matter, the learned Tribunal has erred in not considering the provision of section 66 of the M.V. Act, where it is explicitly provided that even in case, where the transport vehicle are plied on the road without any passenger, mandatory requirement of the permit of transport vehicle cannot merely be assumed, where the same has to be specifically proved by the owner by leading evidence that he had been authorized by R.T.O. Officer to ply the vehicle on road, and he had valid permit on the date of accident.
12. In the result, following the Page 11 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined
observations of Amrit Paul Singh & Anr. Vs. Tata AIG General Insurance Company Ltd. & Ors., the operative part of the order of Tribunal requires modification.
13. Since Rs.1,40,800/- has been ordered to be paid to the claimant at the rate of 9% interest from the date of the claim petition till realization from the opponent, and as submitted by Advocate Mr. Shelat for the Insurance Company that the amount as per award has already been deposited by the Insurance Company and when the Insurance Company cannot be fastened with the liability to pay the amount, the Insurance Company is hereby thus, permitted to recover the same amount from the owner - opponent no.1 by filing an execution petition in accordance with law. The appeal is allowed in the above terms.
14. Since the amount has been deposited, looking to the age of the claimant, let the total Page 12 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023 NEUTRAL CITATION C/FA/219/2020 ORDER DATED: 01/08/2023 undefined compensation amount be paid to the claimant on proper verification of identity.
15. In view of the disposal of the main matter, no order in Civil Application, the same stands disposed of accordingly.
16. Record & Proceedings be sent back forthwith.
(GITA GOPI,J) Pankaj Page 13 of 13 Downloaded on : Sat Sep 16 23:49:10 IST 2023