Gujarat High Court
Ravjibhai Vajaji Zala vs Ashik Bapubhai Shaikh on 2 January, 2025
NEUTRAL CITATION
C/FA/3167/2018 ORDER DATED: 02/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3167 of 2018
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RAVJIBHAI VAJAJI ZALA
Versus
ASHIK BAPUBHAI SHAIKH & ORS.
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
MR VC THOMAS(5476) for the Defendant(s) No. 5
MR. MAHITOSH U SINGH(7015) for the Defendant(s) No. 1,2
MR. MH SHEKHAWAT(7194) for the Defendant(s) No. 1,2
MR. NISARG D SHAH(7299) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 6
VIVEK P DWIVEDI(8474) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant being aggrieved and dissatisfied with the judgment and award dated 23.03.2018 passed by the Motor Accident Claims Tribunal, Gandhinagar in Motor Accident Claim Petition No.1825 of 2004.
2. Heard learned advocate Mr.Darji for the appellant, learned advocate Mr.Palak Thakkar for respondent no.3, learned advocate Mr.VC Thomas for respondent no.5, learned advocate Mr.M.U.Singh and learned advocate Mr.MH Shekhawat for respondent nos.1 and2, learned advocate Mr.Nisarg Shah and learned advocate Mr.Vivek Dwivedi for respondent no.4.
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3. The issue under consideration is whether pay and recover order can be passed in case where is it established that permit of the vehicle has not been renewed and where opponent no.1 was not holding endorsement to drive transport vehicle.
4. To decide the issue on record, we need to examine facts of the case. On 15.05.2004, claimant was sitting in Jeep No.GJ-17- C-2627 and when it reached at the place of accident, Matador No.GJ-1-V-6319 came rashly and negligently and dashed with jeep, resulting injuries to the claimant all over the body. FIR was registered with Dahigam Police Station being CR.No.80 of 2004 for the offence under section 279,337, 378 of IPC as well as under section 177, 183 and 184 of Motor Vehicle Act. Claim petition was filed under section 166 of MV Act joining driver, owner and insurer of both the vehicles as party defendants. Learned Tribunal after permitting parties to led evidence passed order and fasten liability upon driver, owner of Matador to pay compensation of Rs.91,800/- and exonerated insurance copy of Matador as well as opponent no.4 to 6 being driver, owner and insurer of jeep on the ground that accident took place due to sole negligence of matador driver.
5. Learned Tribunal in para 27 of the impugned judgment, in order to exonerate insurance company of Matador believed that permit of the Matador expired on 11.06.2002, which was issued on 12.06.1997. In para 29 of the impugned judgment, learned Tribunal believed that driver of Matador was not holding endorsement of driving license permitting him to driver transport vehicle and ultimately in para 31 of the impugned judgment, Page 2 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:55:51 IST 2025 NEUTRAL CITATION C/FA/3167/2018 ORDER DATED: 02/01/2025 undefined learned Tribunal believed that it is breach of terms and conditions of the policy and it is sufficient to exonerate insurance company.
6. Finding of learned Tribunal about driver of Matador was not holding endorsement to drive transport vehicle does not survive in view of fact that Matador was having unladen weight less than 7500 kilogram and issue whether person having license to drive LMV can drive transport vehicle having unladen weight less than 7500 kg is settled by the Hon'ble Apex Court in the case of Mukund Dewangan Versus Oriental Insurance Company Limited - 2017 (14) SCC 663 and later on in case of Bajaj Alliance General Insurance Company Limited vs. Rambha Devi and others
- 2024 INSC 840.
7. In view of above binding precedent, finding of learned Tribunal qua driver of Matador was not holding endorsement to drive transport vehicle and there is breach of terms and conditions of the policy does not survive and it is set aside. The claimant is third party. He was occupant in Jeep. Whether other offending vehicle was holding permit to ply or not at the time of accident would go to the root of the case to deny insurance company from liability to pay compensation to third party. The Hon'ble Apex Court in the case of Amrit Paul Singh v/s. Tata AIG General Insurance Co. Ltd. [(2018) 7 SCC 558] has addressed the issue. In para 24, it is held as under :-
"24. In the case at hand, it is clearly demonstrable from the materials brought on record that Page 3 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:55:51 IST 2025 NEUTRAL CITATION C/FA/3167/2018 ORDER DATED: 02/01/2025 undefined 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 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 National Insurance Co. Ltd. v/ s. Swaran Singh [(2004) 3 SCC 297] and Lakhmi Chand v/s. Reliance General Insurance [(2016) 3 SCC 100] 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. "
8. Since it is demonstrate from the evidence on record at Exh.84, permit of offending vehicle being Matador has expired on 11.06.2002 and has not been renewed and therefore, insurance company cannot be held liable to pay compensation. Since Page 4 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 21:55:51 IST 2025 NEUTRAL CITATION C/FA/3167/2018 ORDER DATED: 02/01/2025 undefined claimant is third party, in view of judgment of Hon'ble Apex Court in the case of Amrit Paul Singh (Supra), it is fit case to pass order of pay and recover.
9. In wake of above reasons, the First Appeal is partly allowed. Impugned judgment is modified to the extent that Respondent No.3 - National Insurance Company Ltd. at first instance shall deposit the entire decreetal amount with 8% p.a. interest from the date of petition till realization. Respondent No.3 - National Insurance Company Ltd. being insurer of Metador shall be entitled to recover the said amount from the owner of Metador on the strength of this judgment by executing it.
10. Respondent no.3 - National Insurance Company is directed to deposit the entire decreetal amount with interest as stated herein above within a period of six weeks from the date of receipt of this order. Upon deposit, the Tribunal shall disburse the entire awarded with accrued interest thereon to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
11. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. Record and proceedings be sent back to the concerned Tribunal, forthwith.
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