Gujarat High Court
Iffco-Tokio Gen.Ins.Co.Ltd vs Alpaben Wd/O Ranjitji Baldevjithakor on 7 January, 2025
NEUTRAL CITATION
C/FA/4127/2009 ORDER DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4127 of 2009
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IFFCO-TOKIO GEN.INS.CO.LTD
Versus
ALPABEN WD/O RANJITJI BALDEVJITHAKOR & ORS.
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Appearance:
MR CHIRAYU A MEHTA(3256) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 29.04.2009 passed by the Motor Accident Claims Tribunal, Ahmedabad in Motor Accident Claim Petition No.175 of 2007.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 23.11.2006, the deceased Ranjitji was travelling as passenger in auto rickshaw No.GJ-18-U-3028 which was driven by the driver in rash and negligent manner and when they reached near the place of accident, the driver dashed the rickshaw on back side of Trolley. As a result, the accident took place and deceased sustained severe injuries and succumbed to the injuries. The legal heirs of the deceased have filed aforestated claim petition Page 1 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:21:25 IST 2025 NEUTRAL CITATION C/FA/4127/2009 ORDER DATED: 07/01/2025 undefined under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.5,00,000/-. The learned Tribunal vide impugned judgment and award dated 29.04.2009 has granted compensation to the tune of Rs.4,41,500/-. Hence, the present appeal.
3. Heard learned advocates for the respective parties.
4. Total exoneration has been called by the appellant in this appeal arguing that driver of the offending vehicle was not holding valid and effective driving licence on the day of the accident and therefore, Insurance Company cannot be held liable to pay and recover the amount of compensation. Since learned Tribunal has passed the award only against the owner cum driver of the errant vehicle, the Insurance Company was directed to satisfy the award and was placed at liberty to recover such amount of award from the owner without initiating any separate proceeding. In essence, the Insurance Company challenged the order of pay and recover passed by the learned Tribunal.
5. In case of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, the Hon'ble Supreme Court has made it clear that even the learned Tribunal can pass the order of pay and recover. The relevant para of the said judgment reads as under :
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Page 2 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:21:25 IST 2025 NEUTRAL CITATION C/FA/4127/2009 ORDER DATED: 07/01/2025 undefined Co. Ltd. v. Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 :
(2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v.Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that : (SCC p. 226, para 8) "8. ... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court Page 3 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:21:25 IST 2025 NEUTRAL CITATION C/FA/4127/2009 ORDER DATED: 07/01/2025 undefined concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
6. In view of above, I see no error in the impugned judgment and award. The appeal sans merit and it deserves no consideration and requires to be rejected. It is, accordingly, rejected. Registry is directed to send back the record and proceedings, if any, to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 4 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:21:25 IST 2025