Gujarat High Court
Hdfc Ergo General Insurance Company Ltd vs Kalavatiben W/O Prabhubhai Vijaji ... on 1 April, 2025
NEUTRAL CITATION
C/FA/4165/2023 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4165 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HDFC ERGO GENERAL INSURANCE COMPANY LTD
Versus
KALAVATIBEN W/O PRABHUBHAI VIJAJI VAVLIYA & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
KAASH K THAKKAR(7332) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/04/2025
ORAL JUDGMENT
1. Heard learned advocate Ms. Kirti Pathak for the appellant and learned advocate Mr. K. K. Thakkar for respondent Nos.1 to 4. Though served, none appeared for and on behalf of the respondent Nos.5 to 8. Perused the record.
2. The challenge in the present appeal is by the original Page 1 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined opponent No. 3 - Insurance Company challenging the judgment and award dated 1.4.2023 passed by learned Motor Accident Claims Tribunal (Aux), Tharad at Banaskantha in M.A.C.P. No.520 of 2018.
3. The facts in brief of the case are as under:
* On 25.12.2016, deceased was a pillion rider on motorcycle No.GJ-8-AS-2664 which was driven by Pratanpbhai Dungarbhai. When they reached near the place of accident, tractor bearing registration No.GJ-8AJ- 3663 driven by driver of the said vehicle in a rash and negligent manner dashed with the motorcycle. Resultantly, deceased sustained serious injuries and succumbed.
* Claimants being the legal heirs of the deceased filed Claim Petition being MACP No.520 of 2018 before learned Motor Accident Claims Tribunal (Aux), Tharad for a compensation of Rs.4,62,833/- with interest @ 12% pa under Section 163A of the M.V. Act, 1988 from the opponents. Opponents were served with summons.
Page 2 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined * Opponent No.1 - owner of the tractor
appeared but did not file Written Statement. Opponent No.2 - owner of motorcycle appeared and filed Written Statement at Exh.14. The claim petition was resisted by Insurance Company - respondent No.4 by filing Written Statement at Exh.22 and denied its liability. After framing of issues, claimant No.1 submitted examination-in-chief at Exh.26 and produced FIR, Panchnama, PM report and documents to substantiate income of deceased. * After considering the evidence, learned Tribunal partly allowed the claim petition by directing opponents to pay an amount of Rs.4,36,167/- to the claimants with interest @ 9% p.a. with proportionate cost from the date of application till realisation. * Being aggrieved and dissatisfied with the impugned judgment and award, the Insurance Company - appellant has filed the present appeal.
4. Learned advocate for the appellant submits that on the Page 3 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined date of accident, the driver of motorcycle was not holding an effective driving license and, thereby, the owner of motorcycle has committed breach of the terms and conditions of the policy. In support of his contention, he has submitted that the application under Order - 16, Rule 1 of the Code of Civil Procedure, 1908 was filed vide Exh.32. Pursuant to the said application, summons came to be issued to the RTO, Palanpur and PSI of Tharad Police Station. Both the witnesses though served, did not remain present for deposition. Exh.41 which is the oral deposition of the Officer of the insurance company has deposed that as per the terms and conditions of the policy, a person driving a vehicle must possess valid and effective driving license under the head of driver clause which reads as under:
"Any person including the insured:
Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner's license may also drive the vehicle when not used for the transport of passengers at the time of the accident and that such a person satisfies the Page 4 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined requirements of Rule 3 of the Central Motor Vehicles Rules, 1989."
5. It is further submitted that there is a clear breach of terms and conditions of the policy, insurance company cannot be fastened with the liability to pay compensation to the claimants. It is further submitted that charge-sheet which is filed against the driver of the tractor indicates that the accident has occurred due to sole negligence on the part of the driver of the tractor, however,learned tribunal has erred in holding all opponents jointly and severally liable to pay compensation. It is also submitted that in absence of the effective driving license to driver motorcycle, insurance company ought to have been exonerated.
6. Per contra, learned counsel for the respondent supported the impugned judgment and award and submitted that even if there is a breach of terms and conditions of the policy by the owner of the motorcycle, the claimants may not be deprived off the right to claim compensation. It is submitted that dispute of the breach Page 5 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined of terms and conditions of the policy is between insured and insurer of vehicle and the claimants being 3 rd party may not be deprived off the legitimate right to claim compensation. The law is well settled on the question of not having valid and effective driving license of the driver of offending vehicle. It is submitted that the insurance company has to first pay the compensation and, thereafter can recover the amount of compensation from the owner and driver of the motorcycle.
7. I have considered the submissions canvassed by learned advocates for the respective parties and perused the Record and Proceedings. It appears that the accident has occurred because of the rash and negligent driving of the driver of the tractor. The vehicle being the tractor is not insured vehicle. The question which has been raised by learned advocate for the appellant that the despite the application under Order 16 Rule 1 of the Code seeking issuance of witness summons to the RTO Officer, Palanpur and the PSI, Tharad Police Station, who has investigated into the complaint, did not remain Page 6 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined present. The oral deposition of the Officer of the insurance company at Exh.48 has in clear terms admitted that he has not inquired about the fact that the driver of motorcycle was not having a valid driving licence. When he has not made any attempts to inquire from the RTO office despite the fact that the notice of witness summons was issued vide Exhs.34 and 35, thereafter, the insurance company did not pursue the matter for further adjudication and allowed the proceedings to proceed further in absence of the concerned witnesses.
8. The only limited question which is under consideration is when the driver of the motorcycle was not holing valid driving licence, can the insurance company be saddled with liability to pay compensation? The concept of pay and recover is not alien to the claim petition. When the insurance company is heavily relied upon the fact of not holding valid driving license, first of all, insurance company has to pay the compensation to the claimants and, thereafter, can recover such amount of Page 7 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined compensation from the owner and driver of motorcycle. For the dispute of non-holding valid and effective driving license, claimants being 3rd party could not be deprived of compensation. Learned tribunal after considering the evidence has considered the deposition of witness Raimal Mavji at Exh.39. Such witness has deposed that the accident has occurred because of sole negligence of driver of the tractor.
9. The principle of pay and recovery under the Motor Vehicles Act, 1988 mandates that an insurance company must first pay compensation to the 3rd party claimant and subsequently recover the amount from the owner of the offending vehicle even in cases where there are violation of policy conditions. This principle is designed to protect the rights of 3 rd party victims in motor vehicle accident. The principle of pay and recovery serves as a protective measure for 3 rd party claimants in motor vehicle accidents ensuring they receive compensation promptly while allowing the insurers to recover the amount from the vehicle owners Page 8 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025 NEUTRAL CITATION C/FA/4165/2023 JUDGMENT DATED: 01/04/2025 undefined in cases of policy violation.
10. Considering the aforesaid principle, the first appeal is partly allowed accordingly. The insurance company shall first pay compensation to the appellant and thereafter can recover the amount of compensation from the owner and driver of the motorcycle by resorting to a legal remedy which is available under the law.
11. Record & Proceedings, if any, be sent back to the concerned Tribunal / Court. No order as to costs.
(D. M. DESAI,J) vk Page 9 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:26:09 IST 2025