United India Ins. Co. Ltd vs Gohaida @ Guvadiya Bhaljibhai ...
2021 Latest Caselaw 5601 Guj

     C/FA/644/2012                              JUDGMENT DATED: 08/06/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 644 of 2012

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.C. RAO
=============================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

=============================================
                   UNITED INDIA INS. CO. LTD
                            Versus
       GOHAIDA @ GUVADIYA BHALJIBHAI RATHWA & 2 other(s)
=============================================
Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
DR RG DWIVEDI FOR MS POOJA H HOTCHANDANI(7765) for the
Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2,3
=============================================

    CORAM:HONOURABLE MR. JUSTICE A.C. RAO

                            Date : 08/06/2021
                            ORAL JUDGMENT

1. This is an Appeal at the instance of the appellant - United

India Insurance Company Ltd. under Section 173 read with

Section 166 of the Motor Vehicles Act, 1988 (for short "the

M.V. Act") challenging the judgment and award dated 2nd

January, 2012 passed by the Motor Accident Claims Tribunal

C/FA/644/2012 JUDGMENT DATED: 08/06/2021

(Auxi.) (for short "the Tribunal"), at Vadodara Camp at Chhota

Udepur in Motor Accident Claims Petition No.1271 of 2005.

2. The brief facts leading to the present appeal are that, on

24.03.2005, at the relevant time, the appellant after crossing

the road was standing aside the road. At that time, the

respondent No.1 came in a rash and negligent manner diving

the Jeep No.GJ-6/K-1243 with excessive speed and dashed the

Jeep with the appellant. As a result, the appellant fell down and

sustained grievous injuries on head, right leg and jaw. Initially,

the Jeep driver took him to the nearest Civil Hospital, but, since

the injuries were serious in nature, he was referred to SSG

Hospital and admitted as I.P. from 24.03.2005 to 12.04.2005

i.e. for 18 days. After discharge, he had to take outdoor

treatment for a considerable period. That the accident injuries

were likely to result in permanent bodily disablement. He has

to incur huge expenses towards treatment. Hence, the

appellant claims Rs.3,00,000/- by way of compensation under

different heads.

3. The Tribunal by the impugned judgment and award

awarded compensation of Rs.1,72,000/- alongwith

proportionate costs and interest @ 7.5% p.a. from the date of

filing the claim petition till realization and directed the

C/FA/644/2012 JUDGMENT DATED: 08/06/2021

respondents to pay the compensation jointly and severally.

4. At the time of arguments, Mr.V.C. Thomas, the learned

advocate appearing on behalf of the appellant - Insurance

Company has drawn the attention of this Court towards

paragraph no.17 of the impugned judgment, wherein it is

observed that the opponent No.3 - Insurance Company (the

appellant herein) is liable to satisfy the award in favour of the

applicant - original claimant, who is third party and in future, if

the insurance company so desires, it can recover the awarded

amount from the insured or driver of the vehicle subject to

verification of driving License and R.C. Book. It is vehemently

submitted that this reason is not followed in the order passed

by the Tribunal and at the time of filing execution petition the

insurance company would find difficulty in executing the award

against the driver or the owner of the vehicle.

5. On the other hand, the learned advocate Mr.R.G. Dwivedi,

appearing on behalf of Ms.Pooja Hotchandani, the learned

advocate for the respondent No.1 - original claimant has no

objection to the contention raised by the learned advocate for

the appellant - insurance company.

Though served, the respondent Nos.2 and 3 - Driver and

Owner of the vehicle respectively, have chosen not to appear

C/FA/644/2012 JUDGMENT DATED: 08/06/2021

before this Court and resisted this appeal filed by the

insurance company.

6. Heard learned advocate for the respective parties

through video conferencing.

7. It is needless to say that when the observation about the

liability is made by the tribunal, it should be reflected in the

order so that the order can be executed without any

complications. The Apex Court in the case of Shamanna And

Another versus Divisional Manager, Oriental Insurance

Company Limited And Others reported in (2018) 9 SCC

650 has held that, if the driver of the offending vehicle did not

possess valid driving license and there are breach of policy

conditions, "pay and recover" can be ordered. The same

principle is also followed by the Apex Court in the case of

Perminder Singh vs. New India Assurance Company Ltd.

And Others, reported in AIR 2019 SC 3128.

8. Considering the overall facts and circumstances of the

case and the evidence on record, and considering the latest

judgment of the Hon'ble Apex Court, the impugned judgment

and award is required to be modified by directing the

Insurance Company to first pay the amount of compensation

as awarded by the Tribunal and then recover the same from

C/FA/644/2012 JUDGMENT DATED: 08/06/2021

the respondent nos.2 and 3 herein - the driver and the owner

of the offending vehicle subject to the verification of the

Driving License and R.C. Book.

9. In view of above, the Appeal is partly allowed. The

impugned judgment and award dated 2nd January, 2012

passed by the Motor Accident Claims Tribunal (Auxi.) (for short

"the Tribunal"), at Vadodara Camp at Chhota Udepur in Motor

Accident Claims Petition No.1271 of 2005 is modified to the

extent that the appellant - Insurance Company is not liable to

pay the compensation to the claimants. However, the

appellant - Insurance Company is directed to first pay the

amount of compensation as awarded by the Tribunal to the

respondent no.1- original claimant no.1 within a period of eight

weeks from the date of receipt of the certified copy of this

Judgment and then the appellant is at liberty to recover the

said amount from the driver and the owner of the offending

Jeep - respondent nos.2 and 3 herein. The stay granted earlier

is hereby vacated.

10. On deposit of the amount of compensation by the

Insurance Company, the Tribunal is directed to invest and

disburse the same to the respondent no.1 - original claimant

no.1, as per the original award of the Tribunal, i.e. 30% of the

C/FA/644/2012 JUDGMENT DATED: 08/06/2021

amount to be paid to the claimant by A/c payee cheque and

remaining 70% of the amount be deposited in any nationalized

bank for a period of five years.

11. R & P be remitted back to the concerned Tribunal

forthwith. The Appeal stands disposed of accordingly.

(A. C. RAO, J)

dolly