NEUTRAL CITATION
C/FA/1209/2012 JUDGMENT DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1209 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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NEW INDIA ASSURANCE CO LTD
Versus
RANINGBHAI RAJABHAI & 2 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
KURVEN K DESAI(7786) for the Defendant(s) No. 3.1,3.2,3.3
MR UDAYAN P VYAS(1302) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/08/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original claimant No. 2 - Insurance Company against the respondents
- original opponent Nos. 1 and 2 and the original claimants under Section 173 of the Motor Vehicles Act, 1988 Page 1 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined (hereinafter referred to as 'the Act' for short) against the judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Junagadh in MACP No. 826 of 1997 on 08.08.2011. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1. That on 02.07.1997, Janabhai Kalabhai Kachhad was going from Una to Vadodara traveling in Luxury Bus bearing registration No.GJ-14-T-35, which was driven by the opponent No.1, belonged to the opponent No.2 and was insured with the opponent No.3 and when the luxury bus was between Dhandhuka and Bagodara, water was logged on the road due to heavy rains, and at that time, the opponent No.1, instead of driving the luxury bus on the over bridge, took the bus from the rough road and drove into the deep water and Janabhai Kalabhai Kachhad and others died due to drowning. The offence was registered with Bagodara Police Station I-C.R.No.91 of 1997.
2.2 The claimants, who are the widow and children of deceased Janabhai Kalalbhai Kachhad, have filed the claim petition Page 2 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined mainly stating that the deceased was aged about 56 years and at the time of accident, was working as a teacher in a primary school and earning Rs.3,000/- per month and was also giving tuition at home and was earning Rs. 3,000/- per month. That he was hale and hearty and due to his death, they have lost their sole earning member. That they have also lost the love and affection and hence, the claimants have claimed an amount of Rs.5,00,000/- as compensation from the opponents jointly and severally under all the available heads.
3. The notices were duly served to the opponents, but, the opponent Nos. 1 and 2 did not appear and opponent No.3 - Insurance Company appeared and filed the written statement at Exh. 18 mainly denying the averments and allegations made in the claim petition and contended that luxury bus bearing No. GJ-14-T-35 did not have a valid and effective contract carriage permit and the provisions of the Motor Vehicles Act has been violated and there was breach of the terms of the insurance policy and therefore, the insurance company is not liable to pay any amount of compensation to the claimants.
4. The learned Tribunal, after considering the evidence produced by the parties on record, partly allowed the claim Page 3 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined petition and ordered the opponents jointly and severally liable to pay an amount of Rs.2,20,000/- with interest at the rate of Rs.7.5% from the date of filing the claim petition till realization to the claimants. The learned Tribunal has further ordered that the opponent - insurance company will be at liberty to recover the amount paid by it in compliance of the award of the learned Tribunal from the owner i.e. opponent No.2 by initiating proceedings before the learned Executing Court without filing a separate suit.
5. Being aggrieved and dissatisfied with the judgment and award passed by the learned Tribunal, the appellant - insurance company has filed the present appeal mainly contending that the luxury bus involved in the accident did not have a valid contract carriage permit and the same had expired on 14.06.1997 and the learned Tribunal has not considered the same. Move over, the owner of the luxury bus had tampered with the number plate of the vehicle and displayed the luxury bus with number plate bearing No.GJ- 14-T-65 instead of number plate bearing No.GJ-14-T-35 and the opponent - Insurance Company has filed the complaint against the opponent Nos. 1 and 2 for tampering with the number plate. That the fraud has been committed by the opponent Nos. 1 and 2 on the insurance company and hence, Page 4 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined the appeal may be allowed and the insurance company may be exonerated from paying the amount of compensation.
6. Heard learned advocate Mr. Vibhuti Nanavati appearing for the appellant - insurance company. Though served, respondent No.1 has not appeared. Respondent No. 2 has appeared through learned advocate Mr. Udayan Vyas and respondent No.3.1 to 3.3 - original claimants appeared through learned advocate Mr. Kurven Desai.
6.1. Learned advocate Mr. Vibhuti Nanavati appearing for the appellant - insurance company has submitted that the main challenge is with regard to order of the pay and recover passed by the learned Tribunal and the learned Tribunal has not considered that the opponents have played fraud on the insurance company. That it has come on record that there was no valid contract carriage permit of luxury bus bearing registration No.GJ-14-T-35 but the learned Tribunal has held that the opponents jointly and severally liable to pay an amount of compensation and has ordered the Insurance Company to recover the amount from opponent No.2.
6.2. Learned advocate Mr. Udayan Vyas for opponent No. 2 and learned advocate Mr. Kurven Desai for opponent Nos. 3.1 to 3.3 - original claimants have submitted that the judgment Page 5 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined and award passed by the learned Tribunal is just and proper and no interference is required and hence, the appeal may be dismissed.
7. The main challenge is with regard to the order of pay and recover passed by learned Tribunal and there is no dispute as far as the quantum is concerned. Learned advocate for the appellant has mainly contended that the insurance company cannot be saddled with the law as there is no legal and valid permit of the luxury on the date of the accident and hence, opponent No. 2 - owner of the vehicle has committed breach of the condition of the contract.
8. In an unreported decision of the Apex Court in the case of Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance passed in Civil Appeal No. 2253 of 2018 (Arising out of S.L.P. (Civil) No. 7692 of 2017), the Apex Court has in Para - 23 has held as under:
23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit The appellants had taken the stand that the vehicle was not involved in the accident That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said Page 6 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.
9. On perusal of the record of the MACP No. 826 of 1997, the contract carriage permit has been produced at Exh. 70 and the permit for luxury bus bearing registration No.GJ-14-T- 35 is valid from 15.06.1992 to 14.06.1997. Admittedly, the accident occurred on 02.07.1997 and on the date of the accident, the contract carriage permit was not in existence and it appears that opponent No. 2 was using the luxury bus in violation of the terms and conditions of the insurance policy. The Insurance Company has produced the examination-in-chief of Ashwinbhai R. Patel, Investigator at Exh. 49, who has stated on oath that the contract carriage permit was valid only from 15.06.1992 to 14.06.1997. The Insurance Company has also produced Investigation Report of the Investigator at Exh. 51 and 52 and declared that the Page 7 of 8 Downloaded on : Sun Sep 17 01:43:19 IST 2023 NEUTRAL CITATION C/FA/1209/2012 JUDGMENT DATED: 18/08/2023 undefined contract carriage permit was not in existence on the date of the accident. In the case of Amrit Paul Singh (Supra), the Apex Court has held that though the insurane company is not liable; however, the insurance company as insurer must pay the amount of compensation along with interest as provided by the Tribunal and thereafter, the Insurance Company may recover the said amount from the owner of the vehicle.
10. In view of the above discussion, I do not find any reason to entertain this appeal and the order passed by the learned Tribunal is just and proper and no interference is required in the order passed by the learned Tribunal. Hence, the present appeal is dismissed.
11. Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil application, if any, shall stand disposed of accordingly.
Sd/-
(S. V. PINTO, J) F.S.KAZI.....
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