Gujarat High Court
Bajaj Allianz General Insurance ... vs Vivekbhai Manubhai Kava on 31 January, 2025
NEUTRAL CITATION
C/FA/4111/2022 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4111 of 2022
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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
Versus
VIVEKBHAI MANUBHAI KAVA & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 3,4,5
RULE SERVED for the Defendant(s) No. 1
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 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 being aggrieved and dissatisfied with the judgment and award dated 2.3.2022 passed by the Motor Accident Claims Tribunal, Rajula in Motor Accident Claim Petition No.01 of 2020.
2. Heard learned advocates appearing for the respective parties.
3. The error on the part of the learned Tribunal is noticeable. In para 17 of the impugned judgment and award, the learned Tribunal has held the insurance company liable to pay compensation at the first instance and to recover the same from the owner of the offending vehicle as there is breach of terms and conditions of the insurance policy in form of driving not Page 1 of 3 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:19:02 IST 2025 NEUTRAL CITATION C/FA/4111/2022 ORDER DATED: 31/01/2025 undefined holding valid and effective licence. But in operative portion, the learned Tribunal has passed the order against the original opponent Nos.1 to 3 jointly and severally. Let refer para 17 of the impugned judgment and award.
"Liability: The Ld. Advocate for the Insurance Company has produced Insurance Policy vide Exh.34. The Ld. Advocate of the Insurance Company has stated in his Written argument that opponent No. 1 was not having valid driving licence at the material time of accident and therefore insurance company is not liable to pay compensation. I have also gone through the documentary evidence produced by the Ld. Advocate for the respective parties and come to the conclusion that in such situation, as per settled law it is statutory duty of the insurance company to pay compensation to the claimants and can recover from the owner of the vehicle. In view of the above, driver, owner and insurer respectively of the vehicle i.e. Motorcycle No. GJ-05- GS-2378 are jointly and severally, liable for the compensation."
4. Admittedly, in operative part of the order, the effect of finding of para 17 has not been given and the original opponent Nos.1 to 3 are held jointly and severally liable to pay the compensation.
5. At this juncture, learned advocate Mr. Nanavati referred to Exh.42 deposition of PW 1, who in his deposition, has stated that the driver of the offending vehicle had no driving licence, but due to oversight, he has not added offence u/s 3 and 181 of the MV Act.
6. What could be noticed that after discussing this issue in Page 2 of 3 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:19:02 IST 2025 NEUTRAL CITATION C/FA/4111/2022 ORDER DATED: 31/01/2025 undefined the impugned judgment and award, the learned Tribunal has believed that it is a case where the insurance company successfully established absence of the licence on the date of the accident. Besides the investigating officer, the insurance company has also examined his own legal officer to address this contention. In view of above, according to this Court, the learned Tribunal has rightly observed that it is a fit case to pass order of pay and recover in para 17 of the impugned judgment and award, but effect of such finding has not been made in operative portion of the order.
7. In view of above, present petition is required to be allowed and is accordingly allowed. The impugned judgment and award is modified to the extent that the appellant Insurance Company is exonerated. However, at first instance the Insurance Company shall deposit the amount before the learned Tribunal, if already not deposited and shall be entitled to recover the same from the owner of the offending vehicle on the strength of this order.
7.1 If record and proceedings is called, it shall be sent back to the concerned Tribunal, forthwith.
7.2 Learned Tribunal is directed to disburse the entire amount of compensation to the claimants, after due verification by fixing apportionment inter se between the claimants.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 3 of 3 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:19:02 IST 2025