The United India Insurance Co. Ltd vs Gamirbhai @ Gamirabhai @ ...
2021 Latest Caselaw 7023 Guj

      C/FA/2645/2020                             JUDGMENT DATED: 28/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2645 of 2020
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                      In R/FIRST APPEAL NO. 2645 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1     Whether Reporters of Local Papers may be allowed No
      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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              THE UNITED INDIA INSURANCE CO. LTD.
                             Versus
       GAMIRBHAI @ GAMIRABHAI @ GAMBHIRBHAI @ GEMARBHAI
                       PANGLABHAI MEDA
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5,6
NOTICE SERVED(4) for the Defendant(s) No. 8
NOTICE UNSERVED(8) for the Defendant(s) No. 7
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                             Date : 28/06/2021
                             ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied with the judgment dated 29/11/2019 and award dated 03/12/2019 passed by Motor Accident Claim Tribunal, 2nd Additional District & Sessions Court Ahmedabad (Rural) at

C/FA/2645/2020 JUDGMENT DATED: 28/06/2021

Mirzapur in MACP No. 443 of 2014, the appellant - original opponent No. 3 has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

2. Heard Mr. Rathin P. Raval, learned counsel for the appellant - United India Insurance Co. Ltd.-original opponent No. 3, Mr. Nishit A. Bhalodi, learned counsel for respondent Nos.1 to 5 & 6 - original claimants. The respondent No. 8 owner of the vehicle is served. The respondent No.7 driver of vehicle is unserved. However, the owner has not filed any appearance. The driver and owner did not even appear before the learned Tribunal. The notice, therefore, to the driver is dispensed with in view of the fact that the owner of the vehicle is served.

3. In light of the aforesaid fact and at the request of Mr. Rathin Raval, learned counsel for the appellant-Insurance Company and Mr. Nishit A. Bhalodi, learned counsel for the respondent Nos. 1 to 6, the appeal is taken up for final disposal. Learned counsel for the parties have provided copies of evidence adduced before learned Tribunal for perusal of this Court.

4. The following noteworthy facts emerge from the record of the appeal:

4.1 It is case of the claimants that on 07/05/2013, deceased was going as a pedestrian. When deceased reached near the spot of accident, at that time driver of a vehicle being Hydraulic Crane No. GJ-12-AN-1529 drove his vehicle rashly and collided with deceased. Hence, the accident occurred. As the result of the accident, deceased received fatal injuries. Therefore, the claimants have filed Motor Accident Claim Petition before the Tribunal under Section 166 of the Act, claiming compensation of Rs. 20,00,000/,

C/FA/2645/2020 JUDGMENT DATED: 28/06/2021

wherein the learned Tribunal awarded compensation of Rs. 8,78,100/- along with costs and interest @ 9% per annum.

4.2 Being aggrieved by the judgment and award of the learned Motor Accident Claims Tribunal, 2nd Additional District & Sessions Court Ahmedabad (Rural) at Mirzapur in MACP No. 443/2014, the appellant filed this appeal.

5. Learned counsel for the appellant has raised the following contentions :

5.1 That the Tribunal has committed an error because the appellant insurance company had no liability as the driver of Crane was not holding a valid driving license. The license provided by the driver/owner was a fake license.

5.2 That the Tribunal failed to consider that the license provided by the owner was a fake license as evidenced by the documents below Exhibit 44 to 45. The learned Tribunal has not believed the same only on the ground that no RTO officer is examined. On the aforesaid contentions, learned counsel for the appellant has submitted that present appeal may be allowed, as prayed for.

5.3 It is further submitted that the owner/driver though served before the learned Tribunal, did not appear and produce any valid/effective license.

5.4. It is further submitted that the learned Tribunal has also failed to appreciate that the appellant-insurance company is not at liable to satisfy any award. Therefore, order if any must have been passed only against the

C/FA/2645/2020 JUDGMENT DATED: 28/06/2021

owner of the vehicle.

5.5 The appellant has relied upon the judgment of the Hon'ble Supreme Court reported in (2018) 3 SCC 800 Appellants: Singh Ram Vs. Respondent: Nirmala and Ors. Learned Advocate for the appellant has relied on paragraph 8 of the said judgment wherein it is held by the Hon'ble Supreme Court that the owner remained absent and hence adverse inference was drawn against him.

6. I have extensively heard Mr.Nishit Bhalodi, learned counsel for the claimants/respondents 1 to 6. He has supported the impugned judgment and award. He has vehemently argued that the insurance company failed to examine any officer from the concerned RTO and hence the learned Tribunal has rightly not believed the case of the appellant. He has further argued that in event any order is to be passed, then the appellant- insurance company may be directed to pay the compensation to the claimants with liberty to the insurer to recover from the owner. In support of this argument, he has relied on the judgment of the coordinate bench of this Court (Coram: Mr. S.G. Shah, J) passed in First Appeal No.4090 of 2018, dated 08/01/2019.

7. I have heard the Learned Advocates for parties at length. I have also perused the evidence produced before me especially Exhibit 44, 45, 46 and the written arguments filed by the insurance company before the learned Tribunal below Exhibit 49.

8. It is clear from the record that the owner and driver were served before the learned Tribunal. They did not appear before the learned

C/FA/2645/2020 JUDGMENT DATED: 28/06/2021

Tribunal. The owner is also served in this appeal and has not filed any appearance.

9. I have perused the documents below Exhibit Nos. 44 to 46. The document at Exhibit 44 shows that a letter was addressed to the RTO dated 15/12/2015. The letter was regarding verification of the license of the driver namely Malkit Singh. The RTO has confirmed that no such license exists in their record. The owner has not appeared either during the trial or in the appeal to dispute the same. Therefore, adverse inference ought to be drawn against him.

10. I am, therefore, of the view that the documents on record prove that the driver of the Vehicle was not holding a valid license inasmuch as the license was found to be fake in nature. The paragraph 8 of the above referred judgment Appellants: Singh Ram Vs. Respondent: Nirmala and Ors. (supra) read as under:

"8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The Appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge. 9. In the circumstances, the direction by the Tribunal, confirmed by the High Court, to pay and recover cannot be faulted. The appeal is, accordingly, dismissed. There shall be no order as to costs."

11. The insurance company is therefore required to be exonerated from the liability to pay compensation. As held by the Hon'ble Supreme Court in

C/FA/2645/2020 JUDGMENT DATED: 28/06/2021

the judgment of Appellants: Singh Ram Vs. Respondent: Nirmala and Ors (supra), and by the coordinate bench of this court in First Appeal No. 4090 of 2018, judgment dated 08/01/2019 (Coram: Mr. S.G. Shah,J), the insurance company shall pay the compensation to the claimants. It can then recover the same from the owner of the vehicle by filing execution petition before the same learned Court.

12. Accordingly, present appeal is partly allowed. The impugned judgment and award stands modified to the aforesaid extent. Record and proceedings be remitted back to the concerned Tribunal forthwith if received by this court. No order as to costs.

13. In view of the order passed in the captioned appeal, the Civil Application for stay would not survive and the same is accordingly disposed of.

(NIKHIL S. KARIEL,J) BDSONGARA