Gujarat High Court
The New India Assurance Co Ltd vs Kailashben Nitinbhai Kukvava (Koli) on 31 January, 2025
NEUTRAL CITATION
C/FA/4191/2024 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4191 of 2024
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THE NEW INDIA ASSURANCE CO LTD
Versus
KAILASHBEN NITINBHAI KUKVAVA (KOLI) & ORS.
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Appearance:
MR NAGESH C SOOD(1928) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2,3,4,5,6,7
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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 - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 27.09.2023 passed by the Motor Accident Claims Tribunal, Rajkot in Motor Accident Claim Petition No.151 of 2019.
2. Learned advocate for the appellant - Insurance Company submitted that though it was proved on record that driver of vehicle was not holding valid and effective driving license on the date of accident, atleast, order of pay and recover should be passed. It is further submitted that insurance company has issued notice to driver to produce license but noticed issued by insurance company has not been answered by driver of the vehicle, which lead inference that since he was not having valid license, he has not produced he same before the learned Tribunal. Learned advocate for the appellant further submitted Page 1 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:38 IST 2025 NEUTRAL CITATION C/FA/4191/2024 ORDER DATED: 31/01/2025 undefined that insurance company cannot lead evidence of RTO in absence of particulars of license provided by claimant or driver of the vehicle. In view of that it is submitted that learned Tribunal committed error in fasting liability on insurance company which ought to have been pay and recover liability and therefore, he submits to allow this appeal to that extent by modifying impugned judgment and award permitting the insurance company to satisfy the award at first instance and recover the same from owner of the vehicle.
3. Claimants and owner are served. There is no representation. No one appeared for the claimants as well as owner of the vehicle despite process being served.
4. Having heard learned advocate for the appellant - Insurance Company, at the outset, I may refer to para 27 and 28 of the impugned judgment, which are reasons given by learned Tribunal under the head of liability, it reads as under :-
"LIABILITY :
27. As discussed in Issue No.1, the accident took place due to sole negligence on the part of driver of Motorcycle No. GJ-36K-3831 belonging to Opponent No.1. Rely upon the documents 37 to 40, the Ld. Adv. for the Opponent No.2 Ins. Co. has raised the dispute that; though the Opponent No.1 was duly served with notice to produce the D.L. of Motorcycle driver, the Opponent No.1 has neither supplied the document asked for nor bothered to reply the notice and hence, it is proved that at the material time of accident the driver of Opponent No.1 motorcycle was not holding valid and effective D.L. and thereby, committed breach of terms and conditions of Ins. Policy and so, the Opponent No.2 - Ins. Co. is not liable to pay any amount of Page 2 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:38 IST 2025 NEUTRAL CITATION C/FA/4191/2024 ORDER DATED: 31/01/2025 undefined compensation to the claimants. However, except bare words, nothing has been brought on record by Opponent No.2 - Ins. Co., to prove the aforesaid contention. Even, the Opponent No.2 - Ins. Co. has not examined any person from R. T. O. in support of its above submissions.
Therefore, in absence of any cogent and reliable evidence, the arguments canvassed by Ld. Adv. for the Opponent No.2 - Ins. Co. does not last long, hence, discarded.
28. As discussed in the Issue No.1, the driver of Motorcycle No. GJ-36K-3831 was sole negligent for occurrence of accident. In the case on hand, the R. C. Book & Ins. Policy of Motorcycle No. GJ-36K-3831 are produced respectively at Exh. 30 & 36. From the perusal of the said documents, it appears that; on the date of accident, the Opponent No.1 was registered owner of Motorcycle No. GJ-36K-3831 and the said Motorcycle No. GJ36K-3831 was insured with Opponent No.2 - Ins. Co. for the period from 03/05/2018 to 02/05/2019. The accident took place on dtd. 13/01/2019. Therefore, on the date of accident the Ins. Policy was in force. Hence, the opponent No. 2 is liable to indemnify the amount of compensation to the opponent No.1, who in turn is liable to pay it to the claimants. Therefore, the opponents are jointly and severally liable to pay awarded amount of compensation to the claimants with proportionate costs and interest @ 9% p.a. from the date of filing the claim petition, till its realization to the claimants. In view of the aforesaid, the Issue No. 2 is decided accordingly and pass following final order below Issue No.3."
5. Issuance of notice at Exh.37 to owner Chandrikaben to produce license of driver of vehicle is insufficient attempt on the part of the insurance company to prove that driver of motorcycle was not holding valid and effective license. Merely issuance of notice, could not infer that driver of vehicle was not holding effective license. Insurance Company need to prove source of information from where it has come to know that driver of vehicle was not holding effective license. Moreover, Insurance Page 3 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:38 IST 2025 NEUTRAL CITATION C/FA/4191/2024 ORDER DATED: 31/01/2025 undefined company is duty bound to prove that despite owner knowing that driver of the vehicle was not holding license on the date of accident, permitted driver to ride vehicle on public place.
6. In the present case, Insurance Company merely producing notice at Exh.37 to 40 cannot establish to pay compensation on the ground that presumption ought to have made that driver was not holding effective driving license and therefore, owner has not produced the same. Presumption cannot take place of proof. Insurance company has to lead necessary evidence to establish contention in the written statement about non existence, absence or fake and invalid license. It is to be observed that even officer of insurance company did not enter into witness box to say on oath.
7. In view of above, the appeal sans merits and accordingly, it is dismissed. 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 claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
9. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SATISH Page 4 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:38 IST 2025