Gujarat High Court
Bajaj Allianz General Insurance ... vs Fofiben Dayabhai Malam on 24 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/3243/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3243 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
Versus
FOFIBEN DAYABHAI MALAM
================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 24/02/2021
ORAL JUDGMENT
1. Heard learned Advocate, Ms. Kirti Pathak, for the appellant
and learned Advocate Mr. Nishit Bhalodi, for the
C/FA/3243/2019 JUDGMENT
respondent- claimant. So far as respondent no.2, i.e. the
owner, is concerned, though served, has not appeared.
2. This is an appeal by the appellant-Insurance Company, i.e.
original Respondent No.2, filed under Section 173 of the
Motor Vehicles Act, 1988, being aggrieved and dissatisfied
with the judgment and award passed by the learned Motor
Accident Claims Tribunal, Junagadh ('The Tribunal',
hereinafter), dated: 24.04.2019, in Motor Accident Claims
Petition No. 370 of 2017, whereby, the Tribunal allowed the
same, partially, and awarded Rs.1,83,529/- to the original
claimant-opponent No.1, herein, with interest at the rate of
9%, from the date of filing of the claim petition so also the
proportionate costs of the petition.
3. The brief facts of the case are as under:
Since, the opponent No.1 and others had to attend a marriage
function at village Shil, they hired the autorickshaw, bearing
registration No. GJ-1-X-2638, owned by opponent No.2. It is
alleged that opponent No.2 was driving the said
autorickshaw in a rash and negligent manner. It is, further,
alleged that when opponent No.2 attempted to make a phone
call over his cell phone, while driving the autorickshaw in
excessive speed and in a manner, endangering human lives,
it went turtle. On account of the same, the passengers,
including opponent No.1, sustained injuries. He, therefore,
C/FA/3243/2019 JUDGMENT
filed the aforesaid claim petition, where, the learned Tribunal
ordered as above. Hence, the present appeal.
4. Learned Advocate, Ms. Kirti Pathak, for the appellant-
Insurance Company, who has urged that the Tribunal has
committed a grave error in holding the appellant liable to
pay the compensation, inasmuch as, at the relevant point of
time, the driver-cum-owner of the said autorickshaw, i.e.
opponent No.2, was not having a valid permit to ply the
autorickshaw. It is, therefore, urged that such an action on
the part of opponent No.2 would tantamount to breach of the
conditions of the policy. She also urged that the Tribunal also
failed to consider the provisions of Section 66 of the MV Act,
in its proper perspective. She urged that the Tribunal ought
not to have misconstrued the deposition given by the Asst.
Legal Manager of the appellant, who, in detail, pointed out
before the Tribunal, as to how opponent No.2 was driving
the vehicle in rash and negligent manner, at the time of
accident. It is, therefore, prayed that the present appeal be
allowed.
5. In support of her submissions, she has heavily relied on the
decision of the Hon'ble Apex Court in 'AMRIT PAUL
SINGH AND ANOTHER VS. TATA AIG INSURANCE CO.
LTD. AND OTHERS', 2018 ACJ 1768.
6. Per contra, learned Advocate, Mr. Nihsit A. Bhalodi,
appearing for the original claimant-opponent No.1, herein,
C/FA/3243/2019 JUDGMENT
has strongly opposed this appeal and has supported the
judgment and award rendered by the Tribunal. It is urged
that that Tribunal passed the impugned judgment and
award, after taking into consideration the material, oral as
well as the documentary, brought on record before it, and
therefore, this Court may not interfere with the same.
7. Having heard the learned Advocates on both the sides, this
Court shall need to examine, as to whether, the Tribunal has
committed an error in holding the appellant liable to satisfy
the claim or not.
8. At the outset, it would be relevant to refer to the decision of
the Apex Court in 'AMRIT PAUL SINGH AND ANOTHER'
(Supra).
9. While so doing, the Tribunal, relying on the decision of the
Apex Court in 'NATIONAL INSURANCE CO. LTD. VS.
CHALL BHARATHAMMA', 2004 ACJ 2094, held that
opponent No.1-Insurance Company was not liable to satisfy
the claim, on the ground that the truck in question was being
plied without valid permit. However, nonetheless, it ordered
the Insurance Company to satisfy the claim, with a liberty to
recover the amount of compensation from the original owner.
10. When the challenge was, further, taken before the Apex
Court, the Apex Court, in no unclear terms, held that it is
clearly established, from the material on record, that the
C/FA/3243/2019 JUDGMENT
vehicle was not having a valid permit, at the time of accident.
The Apex Court, therefore, held that the Tribunal and the
High Court, both, were justified in not holding the insurer
liable to satisfy the claim. The relevant observations of the
Apex Court read thus:
"23. 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 emphasise, 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, 2004 ACJ 1 (SC) and Lakhmi Chand, 2016 ACJ 551
(SC) 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 "Tripitaka", that the existence of a permit of
C/FA/3243/2019 JUDGMENT
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".
11. Reverting to the facts of the case on hand, it is evident that
opponent No.2-the owner of the offending vehicle has not
been able to establish that he was having the necessary
permit to ply the autorickshaw, on the date of the accident,
and therefore, the plea of the appellant-insurance company
needs to be accepted that the Tribunal has committed an
error in holding it responsible to satisfy the claim.
12. Resultantly, this appeal is partly allowed and the judgment
and award passed by the Tribunal, Dated: 24.04.2019, in
Motor Accident Claims Petition No. 370 of 2017, is partly
modified and while holding the appellant-insurance
Company not liable to satisfy the claim, as per ratio laid
down by the Apex Court in 'AMRIT PAUL SINGH AND
ANOTHER' (Supra), however, it is directed that the Tribunal
shall disburse the amount deposited with it in favour of the
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original claimant-(defendant no.1 herein), within a period of
eight weeks from the date of receipt of a copy of this order,
after proper verification.
13. It is however clarified that it is open for the Insurance
Company to recover the said amount from the original
owner, i.e. opponent No.2, herein. Direct service is
permitted.
Sd/-
(VAIBHAVI D. NANAVATI,J)
TUVAR
