National Insurance Company ... vs Kasambhai Rasulbhai Shaikh
2021 Latest Caselaw 2068 Guj

          C/FA/2422/2019                                        JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 2422 of 2019
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
                    In R/FIRST APPEAL NO. 2422 of 2019
                                  With
                     R/FIRST APPEAL NO. 4323 of 2019
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
                    In R/FIRST APPEAL NO. 4323 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI        Sd/-
===========================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?                                                   NO

2     To be referred to the Reporter or not ?
                                                                           NO
3     Whether their Lordships wish to see the fair copy of the
      judgment ?                                                           NO

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
                                                                           NO
      order made thereunder ?

================================================================
                  NATIONAL INSURANCE COMPANY LIMITED
                                 Versus
                      KASAMBHAI RASULBHAI SHAIKH
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1
MR.HARDIK K RAVAL(6366) for the Defendant(s) No. 2
================================================================
    CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 11/02/2021
                           COMMON ORAL JUDGMENT

At the joint request of the learned advocates appearing for the

respective parties, the matters are taken up for final disposal.

C/FA/2422/2019 JUDGMENT

1. The present first appeals has been filed challenging the impugned

judgment and award dated 14.08.2018 passed by the Motor Accident

Claims Tribunal (Aux), Additional District Judge, Sabarkantha at Idar in

MACP No.132 of 2012.

2. Learned advocate Mr.Maulik Shelat appearing for the appellant has

submitted that the tribunal has materially erred in overlooking fact that

insured motorcycle was driven by owner himself who was not in

possession of licence to drive insured motorcycle at the time of accident

on 26.09.2011 as his learner licence has already expired on 10.06.2007.

As per settled legal position of law, insurance company ought not to have

been held liable to pay compensation.

3. Learned advocate Mr.Maulik Shelat for the appellant has submitted

that the tribunal has committed a jurisdictional error by deciding legal

issue raised in matter while deciding petition. He has submitted that the

tribunal ought to have appreciated oral evidence of RTO at Exh.55 as

well as Investigating officer (Exh.62) and appellant's officer (Exh.60). He

has submitted that as per RTO certificate (Exh.56) read with chargesheet

(Exh.63), it is proved that as on date of accident, driver cum owner of

insured motorcycle was not holding licence.

4. Learned advocate Mr.Maulik Shelat for the appellant has submitted

that the tribunal has not considered the issue whether it is proved that the

claimant sustained injuries on account of rashness or negligence in

C/FA/2422/2019 JUDGMENT

driving on the part of the driver of the vehicle involved in the accident.

5. Learned advocate Mr.Maulik Shelat for the appellant has submitted

that so far as the question of quantum is concerned, the claimant-

Ikbalhusein Sakurmahamad Makrani has stated in his claim petition at

Exh.1 as well as affidavit Exh.31 that he was healthy aged about 30 years

at the time of accident but he has not produced any documentary evidence

like copy of birth certificate and school leaving certificate to

show/established his age. He has submitted that as per injury certificates

produced at Exh.38 and Exh.39, wherein doctor has mentioned 28 years

age of applicant. He has submitted that there is no rebuttal evidence

produced by the other side.

6. Learned advocate Mr.Maulik Shelat for the appellant has submitted

that so far as the question of quantum is concerned, the claimant-

Kaambhai Rasulbhai Shaikh has stated in his claim petition at Exh.1 as

well as affidavit Exh.30 that he was healthy aged about 40 years at the

time of accident but he has not produced any documentary evidence like

copy of birth certificate and school leaving certificate to show/established

his age. He has submitted that as per injury certificates produced at

Exh.43 and Exh.44, wherein doctor has mentioned 43 years age of

applicant. He has submitted that there is no rebuttal evidence produced by

the other side.

7. In support of his submissions, learned advocate Mr.Maulik Shelat

C/FA/2422/2019 JUDGMENT

for the appellant has placed reliance upon the judgment in the case of

National Insurance Company Limited V/s. Vidhyadhar Mahariwala &

Ors., 2008 ACJ 2860.

8. Learned advocate Mr.Mohsin Hakim for the opponent no.1 has

submitted that the award passed by the learned tribunal is just and proper

and the same is not required to be interfered. He has further submitted

that the amount of compensation as determined by the learned tribunal is

to be disbursed in favour of the claimant.

9. I have heard the learned advocates appearing for the respective

parties.

10. It appears that while discussing the issue , the claimant is entitled

to get compensation of Rs.74,200/- from the opponent nos.1 and 2 jointly

and severally, however, the tribunal has erred in not apportioning the

liability. While dealing with the contentions of the parties, there is an

error committed by the tribunal in not coming to proper finding pursuant

to the submissions advanced by the learned advocates for the respective

parties. The tribunal has however erred in not determining the extent of

liability.

11. Accordingly, the impugned judgment and award dated 14.08.2018

C/FA/2422/2019 JUDGMENT

passed by the Motor Accident Claims Tribunal (Aux), Additional District

Judge, Sabarkantha at Idar in MACP No.132 of 2012 is hereby quashed

and set aside. The matters are remanded back at the stage of arguments to

the tribunal for adjudication of this issue afresh after providing

opportunity to all the parties, purely on merits and in accordance with

law. After completion of trail, the amount which is deposited by the

Insurance Company be disbursed in accordance with law.

12. The above order is passed without going into the merits of the

matter and without prejudice to the rights and contentions which may be

raised by the respective parties at the time of hearing.

13. The amount, which is deposited with the tribunal, shall be invested

in cumulative till final outcome of the proceedings. It is needless to say

that it is open for the parties to put their case and if required, led the

evidence in accordance with law. R & P be sent back to the tribunal

concerned.

Sd/-

(VAIBHAVI D. NANAVATI,J) ABHISHEK