NEUTRAL CITATION
C/FA/5049/2010 JUDGMENT DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5049 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NEW INDIA ASSURANCE CO LTD, REGISTERED OFFICE 87, MAHATMA
Versus
SANGEETABEN SOMIYAL VASAVA & 6 other(s)
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR NV GANDHI(1693) for the Defendant(s) No. 6,7
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 26/09/2023
ORAL JUDGMENT
1. This appeal is filed under section 173 of the Motor Vehicles Act, 1988 by the New India Assurance Company Limited, assailing the judgement and award dated 14.10.2009, in Claim Petition No.23 of 2007, passed by the Claim Tribunal, Vyara at Surat by which the Tribunal overruling the objection of the defence of driving licence Page 1 of 4 Downloaded on : Wed Sep 27 20:43:00 IST 2023 NEUTRAL CITATION C/FA/5049/2010 JUDGMENT DATED: 26/09/2023 undefined awarded the amount of compensation in favour of respondent original claimants.
2. On 19.10.2006 deceased Somiyal aged about 24 years met with an accident when his rickshaw, wherein he was travelling was overturned. The widow and minor children had filed Claim Petition, claiming compensation of Rs.7,00,000/- against the owner and Insurance Company of the offending rickshaw. The Claim Tribunal vide its judgement and order dated 14.10.2009, passed an award of Rs.5,76,000/-, with interest.
3. The appellant Insurance Company being aggrieved with the findings on the issue of liability, has preferred the present appeal.
4. Mr. Sunil Parikh, learned counsel appearing for and on behalf of the Insurance Company, disputed the findings, fastening of the liability of the Insurance Company. He submitted that the driver of the rickshaw did not possess the valid licence as in the licence issued by the authority, no endorsement was found to drive a commercial vehicle and, therefore, there is a violation of the terms of the policy and Insurance Company cannot be held liable to pay the amount of compensation.
5. On the other hand, Mr. Hiren Modi, learned counsel appearing for the original claimant supported the findings on the issue of liability and submitted that the deceased was third party and, therefore, so far as third party is concerned, the Insurance Company cannot escape from its liability to pay the amount of compensation. He would further submit that the sufficient reasons, fastening the liability of the Insurance Company assigned by the Tribunal and, therefore, the Tribunal has not committed any error while directing the Insurance Company to pay the amount of compensation for and Page 2 of 4 Downloaded on : Wed Sep 27 20:43:00 IST 2023 NEUTRAL CITATION C/FA/5049/2010 JUDGMENT DATED: 26/09/2023 undefined on behalf of the owner of the vehicle.
6. Having heard the learned counsel for the respective parties, and on perusal of the records, the issue arise for determination is as to whether the driver of the vehicle did not possess a valid licence and Insurance Company is exempted from liability.
7. On the very limited issue, this appeal is filed by the Insurance Company. The driver of the rickshaw was having the driving licence to drive LMV vehicle. The deceased was travelling in the rickshaw and considering the policy conditions, he would fall under the term, " third party". On the issue of driving licence the Apex Court in the case of National Insurance Co.Ltd vs. Swaran Singh and others, AIR 2004 SC 1531, the Apex Court categorically held that mere absence, fake or invalid DL for driving at relevant time are not themselves defence available to the Insurance Companies against the third parties. It was further observed that to avoid the liability towards the insured, the Insurance Company has to prove that the owner, insured was guilty of negligence and failed to exercise reasonable care in the matter fulfilling the condition of the policy regarding use of vehicle by duly licence. In the case of Mukund Dewangan vs. Oriental Ins.Co.Ltd. (2017) ACJ 2011, the Apex Court held that the LMV as defined would include a transport vehicle as per the weight prescribed in section 2 (21) of the Act and, therefore, no separate endorsement on the licence is required to drive a transport vehicle.
8. In light of the settled position of law, and considering the peculiar facts and circumstances of the present case, the issue of liability as raised hereinabove having not been proved and established and the learned Tribunal has not committed, any error while fastening the liability on the appellate Insurance Company.
9. For the reasons recorded, the present appeal is failed and dismissed Page 3 of 4 Downloaded on : Wed Sep 27 20:43:00 IST 2023 NEUTRAL CITATION C/FA/5049/2010 JUDGMENT DATED: 26/09/2023 undefined accordingly. Decree be drawn accordingly.
(ILESH J. VORA,J) SUDHIR Page 4 of 4 Downloaded on : Wed Sep 27 20:43:00 IST 2023