Icici Lombard General Insurance ... vs Kamilaben Wd/O Nurjibhai ...
2021 Latest Caselaw 18323 Guj

      C/FA/976/2020                                          ORDER DATED: 13/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 976 of 2020
                                 With
                     R/FIRST APPEAL NO. 975 of 2020
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       ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
                            Versus
         KAMILABEN WD/O NURJIBHAI RUMALBHAI SANGADIYA
==========================================================
Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Appellant(s) No. 1
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5,6,7
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                  Date : 13/12/2021
               COMMON ORAL ORDER

1. Both these appeals are filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V. Act" for short) challenging the judgment and awards dated 09.10.2019 passed in M.A.C.P. Nos.973 of 2015 and 972 of 2015.

2. Heard learned advocate Mr.Rahul R. Dholakia for the appellant and learned advocate Mr.Nishit A. Bhalodi for the respondents - claimants. The respondents driver and owner of the vehicle in question are duly served. However, none appears on their behalf.

3. As the issue involved in both the appeals are similar and both the appeals filed by the Insurance Company arise out of the same accident, learned advocates appearing for the parties jointly requested that these appeals be heard together and the same be decided finally, as Notice for final disposal was issued by this Court vide order dated 28.02.2020.

4. For the sake of brevity and convenience and as

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both the appeals arise out of the same accident, facts of First Appeal No.976 of 2020 are taken into consideration.

4.1 On 18.07.2015, while deceased Nurjibhai Rumalbhai Sangadiya (whose heirs are the claimants in First Appeal No.976 of 2021) was driving a motorcycle whereas Balubhai Vadhabhai Sangadiya (whose heirs are the claimants in First Appeal No.975 of 2021) as a pillion rider and when they reached near the place of accident, respondent No.8 came driving the dumper bearing registration No.MH-04-GC-1303 in rash and negligent manner with excessive speed and dashed with the aforesaid motorcycle, as a result of which, both the deceased sustained severe injuries and succumbed to the same.

4.2 The respondents claimants filed Motor Accident Claim Petitions under Section 166 of the M.V. Act and prayed that compensation of Rs.15,00,000/- be awarded to them. The Tribunal issued notice to the concerned respondents. The present appellant - original opponent No.4 Insurance Company filed written Statement at Exh.29. However, opponent Nos.1 and 2 though served, did not appear. During the course of the proceedings, documentary as well as oral evidence were led including the affidavit of the claimant at Exh.39, FIR at Exh.43, Panchnama at Exh.44, Postmortem Note Exh.46, R.C. Book of the offending vehicle - dumper at Exh.48, copy of the permit of the offending vehicle at Exh.50 and copy of the charge-

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sheet at Exh.56 (in MACP No.973 of 2015) and affidavit of the claimant at Exh.39, FIR at Exh.42, Panchnama at Exh.43, Postmortem Note Exh.45, R.C. Book of the offending vehicle - dumper at Exh.47, copy of the permit of the offending vehicle at Exh.49 and copy of the charge-sheet at Exh.55 (in MACP No.972 of 2015).

4.3 Claims Tribunal after considering the documentary as well as oral evidence led before it, partly-allowed the petitions filed by the concerned claimants. The Tribunal has awarded Rs.9,30,160/- in both the claim petitions and held the appellant and respondent Nos.8 and 9 jointly and severally liable to pay the awarded amount to the claimants with proportionate cost and with interest at the rate of 9% per annum from the date of the claim petitions till realization. Reliance General Insurance Co. ltd, who was original opponent No.3 in the claim petitions, was deleted as per the order passed below Exh.38.

4.4 The appellant, therefore, filed the present First Appeals challenging the judgment and awards dated 09.10.2019 passed in M.A.C.P Nos.973 and 2015 and 972 of 2015.

5. Learned advocate Mr.Dholakia appearing for the appellant Insurance Company has mainly contended that the offending vehicle was not having valid permit. In spite of that, the Claims Tribunal has held the

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present appellant - original opponent No.4 Insurance Company liable. Learned advocate Mr.Dholakia has referred the permit which is produced at Exh.50 in M.A.C.P. No.973 of 2015 and at Exh.49 in M.A.C.P. No.972 of 2015. It is submitted that in absence of any valid permit of the vehicle, the Tribunal ought to have exonerated the appellant Insurance Company. In alternative, it is submitted that liberty be reserved to the appellant Insurance Company to recover an amount of compensation from the owner of the vehicle involved in the accident. Learned advocate for the appellant has placed reliance upon a decision rendered by the Hon'ble Supreme Court in the case of Amrit Paul Singh & Anr Vs. TATA AID General Insurance Co. reported in (2018) 7 SCC 558. Learned advocate has also placed reliance upon the judgment dated 20.10.2021 passed by this Division Bench of this Court in First Appeal No.4665 of 2019 in support of his submissions.

6. On the other hand, learned advocate Mr.Nishit Bhalodi appearing for the respondents - claimants mainly contended that the respondents - claimants are entitled to the compensation as awarded by the Tribunal and the appellant as an Insurance Company is liable to satisfy the award and to pay to the respondents - original claimants.

7. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the appellant

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Insurance Company has produced a copy of the permit at Exh.50 and Exh.49 in respective claim petitions. It is a specific case of the appellant Insurance Company that offending vehicle was not having any valid permit. Thus, the vehicle involved in the accident was being driven without there being any valid permit. Hence, there is a breach of condition by the owner of the vehicle involved in the accident.

8. In the case of Amrit Paul Singh & Anr Vs. TATA AID General Insurance Co. (supra), the Hon'ble Supreme Court has observed in Paragraph-24 as under:

"24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasis, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the

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Tripitaka, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle."

9. In the case of Shriram General Insurance Co. Ltd. Vs. Hansaben Wd/o. Dashrathkumar Rameshbhai , (Judgment dated 20.10.2021 passed in First Appeal No.4665 of 2019), the Division Bench of this Court has held in Paragraphs-10 and 11 as under:

"10. Following the ratio laid down by the Apex Court in the case of Amrit Paul Singh & Anr. Vs. TATA AIG General Insurance co. reported in (2018) 7 SCC 558, though the appellant insurer is not liable, however, the appellant as insurer must pay the amount of compensation along with interest as provided by the Tribunal and thereafter, the insurer may recover the said amount from the owner of the vehicle.

11. The appellant shall have to pay first and then recover from the owner of the vehicle involved in the accident. No other or further modification is required in the impugned judgment and award. Accordingly, the appeal is allowed only to the aforesaid extent. No order as to costs. Record and proceedings be transmitted back to the Tribunal forthwith."

10. Keeping in view the aforesaid decisions, if the

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facts of the present case are examined, this Court is of the view that the appellant Insurance Company must pay the amount of compensation along with interest as provided by the Tribunal to the claimants and, thereafter, insurer may recover the said amount from the owner of the vehicle.

11. Thus, in the facts and circumstances of the present case, the appellant shall have to pay first and then recover from the owner of the vehicle involved in the accident. The impugned judgment and awards passed by the Claims Tribunal are modified to the aforesaid extent. Accordingly, the appeals are partly-allowed. No order to as to costs.

(VIPUL M. PANCHOLI, J) piyush