Gujarat High Court
Zalubhai Dipabhai Rathva vs Sanjaybhai Rameshbhai Rathva on 31 January, 2025
NEUTRAL CITATION
C/FA/3119/2022 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3119 of 2022
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ZALUBHAI DIPABHAI RATHVA
Versus
SANJAYBHAI RAMESHBHAI RATHVA & ORS.
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Appearance:
MR A R DWIVEDI(11319) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/01/2025
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 08.12.2021 passed by the Motor Accident Claims Tribunal, Bodeli in Motor Accident Claim Petition No.39 of 2021.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on 15.12.2014, the claimant was riding his motorcycle No.GJ-6-AQ-
4683 along with his friend and going towards Bhesavai. When they reached near the place of accident, opponent No.1 came riding motorcycle No.GJ-6-DM-5192 in rash and negligent manner and dashed with the motorcycle of the claimant. As a result, the accident took place and claimant sustained severe injuries. Therefore, offence to that effect is registered before the Karali Police Station vide FIR being I-C.R.No.31 of 2014. The claimant has filed aforestated claim petition under Section 166 Page 1 of 6 Uploaded by GAURAV J THAKER(HC00951) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:18:57 IST 2025 NEUTRAL CITATION C/FA/3119/2022 ORDER DATED: 31/01/2025 undefined of the Motor Vehicle Act, 1988 claiming compensation of Rs.4,00,000/-. The learned Tribunal vide impugned judgment and award dated 08.12.2021 has granted compensation to the tune of Rs.1,90,868/-. Hence, the present appeal.
3. Heard learned advocates for the respective parties.
4. Pressing for the order of pay and recover, learned advocate Mr.Dwivedi would submit that learned Tribunal after recording the finding that opponent No.1 was not holding the licence or there was absence of licence on the day of accident was required to follow the law laid down in the case of National Insurance Company Limited vs. Swaran Singh - 2004 ACJ 1 (SC) and to pass the order of pay and recover and he urges to pass said order in this appeal.
5. Per contra, learned advocate Mr.Raval appearing for the other side referred to para 10.5 of the impugned judgment and award and would submit that Insurance Company has done all that it can do to prove that opponent No.1 was not holding valid and effective driving licence on the day of accident. He would submit that opponent No.1 was examined, as also RTO was also examined. Learned Tribunal has thoroughly discussed this issue to believe that since it is successfully established by the Insurance Company that driver of offending vehicle was not holding valid and effective driving licence, Insurance Company has established defense of breach of terms and conditions of the policy which has been rightly appreciated by the learned Tribunal. He would submit to dismiss this appeal.
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6. At the outset, having referred to para 10.3 of the impugned judgment and award, it appears that learned Tribunal has comprehensively discussed the issue of licence and held that the driver of offending vehicle was not holding valid and effective driving licence on the date of accident. The learning licence issued to the driver twice has been expired and yet he drew the vehicle on unfortunate day. Learned advocate Mr.Dwivedi fairly submits that he has no say on the aspect assessment made by the learned Tribunal in para 10.3 on the issue of licence, but he referred to judgment of Swaran Singh (supra).
7. While summing up the judgment, Hon'ble Supreme Court in case of Swaran Singh (supra), held as under :
"The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)
(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties.Page 3 of 6 Uploaded by GAURAV J THAKER(HC00951) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:18:57 IST 2025
NEUTRAL CITATION C/FA/3119/2022 ORDER DATED: 31/01/2025 undefined To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not Page 4 of 6 Uploaded by GAURAV J THAKER(HC00951) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:18:57 IST 2025 NEUTRAL CITATION C/FA/3119/2022 ORDER DATED: 31/01/2025 undefined restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal.
Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
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7. The claimant admittedly is third party and technical breach of the terms and conditions of the policy cannot decide the limb of receiving the compensation. Insurance Company may be exonerated but its liability to satisfy the award cannot be disfigured. The evidence clause in the policy can also be noticed.
8. In view of above, the appeal is allowed in aforesaid terms by passing the following order :
8.1 While maintaining the impugned judgment and award exonerating the Insurance Company, it is directed to the New India Assurance Company Limited, being insurer of the offending vehicle to satisfy the award at first instance and to recover the same from the owner by execution of the judgment and decree.
Decree be drawn, accordingly.
8.2 The Insurance Company is directed to deposit the awarded amount with interest as stated herein above within a period of six weeks from the date of receipt of this order.
8.3 Upon deposit of amount, the Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 6 of 6 Uploaded by GAURAV J THAKER(HC00951) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:18:57 IST 2025