Bombay High Court
The New India Assurance Company ... vs Smt Swati Dhondiram Nagargoje And ... on 6 April, 2016
Bench: V.K. Jadhav
1 FA 999.2010 +ca.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 999 OF 2010
WITH
CA/5803/2010 IN FA/999/2010
...
The New India Assurance Company Ltd.,
a Subsidiary of the General Insurance
Corporation of India and a company
incorporated under the Companies Act
Having its Divisional office at
Adalat Road, Aurangabad
Through its Senior Manager
Shri Vishwas s/o Bansi Gaikwad,
age 53 years, Occ. Service as
Senior Manager, the New India Assurance
Co., D.O. No.1, Adalat Road, Aurangabad.
..Appellant..
[orig resp no.2.]
VERSUS
1. Smt Swati Dhondiram Nagargoje,
age 19 years, Occ. Household,
R/o Son Hivra, Tq. Parli Vaijnath,
Dist. Beed.
2. Uttam s/o Raghunath Nagargoje,
age 46 years, Occ. Agri,
R/o as above.
3. Sow Rukmin w/o Uttam Nagargoje,
age 40 years, Occ. Household,
R/o as above.
4. Bibhishan s/o Uttam Nagargoje
age 17 years, Occ. Education,
U/g of father claimant no.2 Uttam
Nagargoje, R/o as above.
5. Mr. Dhiraj s/o Sampatlal Bafna
age major, Occ. Business,
R/o Room No.9, Survey No.40,
Pote Chawl, Near Tempo Chowk,
Mojeshwadi, Wadgaon, Pune. 411 014.
::: Uploaded on - 07/04/2016 ::: Downloaded on - 29/07/2016 21:15:35 :::
2 FA 999.2010 +ca.odt
[Resp No.1 to 4 orig claimants and
resp no.5 orig. respondent no.1.]
...
Advocate for Appellant : Mr A B Kadethankar
Advocate for Respondents 1-4 : Mr R B Deshpande
Respondent No.5 - served absent.
...
CORAM : V.K. JADHAV, J.
Dated: April 06, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award dated
16.10.2009 passed by the Member, Motor Accident Claims
Tribunal, Ambajogai in M.A.C.P. No.96 of 2008, the
Respondent-insurer has preferred this appeal.
2. Brief facts, giving rise to the present appeal are as
under :-
a] Deceased Dhondiram was serving as Sheet Metal
Worker in Tata Motors Limited Pimpri, Pune. On 17.7.2008,
at about 11.40 am he was proceeding to attend the work at
Chinchwad Pune. On way, near temple one Tempo-407
bearing registration No.MH-04/C-9657 gave him dash from
his back side and fled away. In consequence of which,
deceased Dhondiram had sustained the injuries. He was
immediately shifted to the Government Hospital at Pimpri-
Chinchwad, Pune where he declared dead on arrival. Legal
representatives of deceased Dhondiram preferred claim
petition No. 96 of 2008 before the Motor Accident Claims
3 FA 999.2010 +ca.odt
Tribunal, Ambajogai.
B] Respondent No.1-the owner, though, duly served,
remained absent and therefore, hearing of the claim petition
ordered to be proceeded ex-parte against him. The
appellant-insurer has strongly resisted the claim by filing
written statement mainly on the ground that the driver of
the tempo involved in the accident was not holding valid and
effective driving licence and, thus, there has been breach of
the specified conditions of the policy. The learned Member of
the Motor Accident Claims Tribunal, Ambajogai, by its
impugned Judgment and Award dated 16.10.2009 partly
allowed the claim petition with proportionate costs and
thereby directed the respondents Nos 1 and 2 to pay jointly
and severally Rs.7,65,000/- alongwith interest at the rate of
Rs.6% p.a. from the date of application till the amount is
paid. Hence, this appeal is filed by the original
respondent/insurer.
3. The learned counsel for the appellant-insurer submits
that, as per the certificate issued by the RTO Pune, the
driver of the said tempo was holding a licence to drive
LMVTR/LMV[NT] vehicle and validity period of the said
driving licence is 28.2.2003 to 27.2.2006. Learned counsel
4 FA 999.2010 +ca.odt
submits that the accident had taken place on 17.2.2008 and
on the date of accident, the driver of the said tempo was not
holding valid and effective driving licence. The validity
period of the licence as produced before the Tribunal was
expired on 27.2.2006 and thereafter it was not renewed.
Learned counsel submits that, the Tribunal has not
considered the same and, accordingly directed the
respondent-appellant insurer to pay the compensation to the
claimants jointly and severally with the respondent owner.
4. Learned counsel for the respondents-claimants
submits that, the appellant insurer has not proved before the
Tribunal the certificate extract issued by the R.T.O, Pune.
Learned counsel submits that, said extract was produced
before the Tribunal at the time of arguments and the
Tribunal has directly exhibited the same. Learned counsel
submits that, assuming that the driver of the tempo was not
holding valid and effective driving licence at the time of
accident, in view of the authoritative pronouncement of the
Supreme Court in case of S. Iyyapan Vs. United India
Insurance Company Limited and another reported in
(2013) 7 Supreme Court Cases 62, the appellant Insurer is
liable to pay the compensation and then recover it from the
respondent-owner. Learned counsel for respondent-claimant
5 FA 999.2010 +ca.odt
places his reliance on a case Bajaj Alianz General Insurance
Co. Ltd., Vs. Wahidbi Pashabhai Shaikh and another
reported in 2015 (1) Bom.C.R. 672, wherein, this Court by
placing the reliance on S. Iyyapan's case (supra) in the
similar facts of the case, directed the insurance company to
pay the compensation first and then recover the amount
from the owner. Respondent no.1 owner, though duly served,
remained absent and none appears for him before the
Tribunal.
5. It appears that the driver of the Tempo was holding
driving licence prior to the accident. It is not the case that,
the driver of the tempo was not having any driving licence at
all. The certificate extract issued by the RTO, Pune was
produced before the Tribunal by the appellant-insurer and
the same was exhibited by the Tribunal. It appears from the
record that, the respondents/original claimants have not
raised any objection to exhibit the said document. It thus
appears that the appellant-insurer succeeded in proving that
the driver of the tempo was not having valid and effective
driving licence at the time of accident. In view of this, the
Tribunal has committed an error to saddle the appellant-
insurer with liability to pay the compensation alongwith
respondent no.1.
6 FA 999.2010 +ca.odt
6. In a case S. Iyyapan (supra) in paragraph no.17 of the
judgment, the Supreme Court has made following
observations :-
"17. Reading the provisions of Sections 146 and 147 of the
Motor Vehicles Act, it is evidently clear that in certain
circumstances the insurer's right is safeguarded but in any
event the insurer has to pay compensation when a valid
certificate of insurance is issued notwithstanding the fact
that the insurer may proceed against the insured for
recovery of the amount. Under Section 149 of the Motor
Vehicles Act, the insurer can defend the action inter alia
on the grounds, namely,
(i) the vehicle was not driven by a named person,
(ii) it was being driven by a person who was not
having a duly granted licence, and
(iii) person driving the vehicle was disqualified to
hold and obtain a driving licence.
Hence, in our considered opinion, the insurer cannot
disown its liability on the ground that although the driver
was holding a licence to drive a light motor vehicle but
before driving light motor vehicle used as commercial
vehicle, no endorsement to drive commercial vehicle was
obtained in the driving licence. In any case, it is the
statutory right of a third party to recover the amount of
compensation so awarded from the insurer. It is for the
insurer to proceed against the insured for recovery of the
amount in the event there has been violation of any
condition of the insurance policy."
7. In view of this, the appellant-insurer has to pay first
the compensation and then to proceed against the insured
for recovery of the amount. Hence, I proceed to pass the
7 FA 999.2010 +ca.odt
following order.
O R D E R
I. Appeal is hereby partly allowed.
II. Judgment and Award dated 16.10.2009 passed
by the learned Member of the Motor Accident
Claims Tribunal, Ambajogai in MACP No.96 of
2008 is hereby modified in the following
manner :-
a] "Respondent No5 owner (original Respondent
No.1 Owner) is directed to pay the compensation
of Rs.7,65,000/- (Rs. Seven lac sixty five
thousand only) alongwith interest @ 6% p.a.
from the date of application till the amount is
paid. However, the appellant/ original
respondent No.2-Insurer shall pay the amount of
Rs.7,65,000/- (Rs. Seven lacs sixty five thousand
only) alongwith interest @ 6% p.a. from the date
of application till the amount is paid to the
claimants and the appellant-insurer/original
respondent no.2-insurer is entitled to recover the
said amount from the original respondent
no.1/respondent no.5-owner without filing any
independent proceedings.
III. First Appeal is disposed of.
IV. Award be drawn up accordingly.
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V. The Respondents claimants are permitted to
withdraw the compensation amount, if deposited
by the appellant-insurer before this Court, in the
proportion of 75% to claimant No.1 widow and
25% equally between the claimant nos. 2,3 and
VI. In view of disposal of first appeal, pending civil
application also stands disposed of.
( V.K. JADHAV, J. )
......
aaa/-
