New India Insurance Co Ltd vs Sheelaben Wd/O Hemantkumar ...
2021 Latest Caselaw 4502 Guj

          C/FA/1683/2010                                       JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 1683 of 2010

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
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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 ?

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                   NEW INDIA INSURANCE CO LTD
                              Versus
    SHEELABEN WD/O HEMANTKUMAR VINODPRAKASH SHAH & 2 other(s)
=============================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1
NOTICE UNSERVED(8) for the Defendant(s) No. 2
SERVED BY AFFIX(N)(7) for the Defendant(s) No. 3
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 22/03/2021
                       ORAL JUDGMENT

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 4.1.2010 passed by the Motor Accidents Claims Tribunal (Main), Surat in MACP No.408 of 1991, the Insurance Company has preferred present appeal under Section 173 of the Motor Vehicles Act.

2.0. The following facts emerge from the record of the appeal.

C/FA/1683/2010 JUDGMENT

2.1. That the accident took place on 24.10.1990 in the city of Surat. It is the case of the original claimants that deceased Hemantkumar Vinodprakash Shah was going on his scooter bearing registration no. GJ­5­E­4400 in Udhna City, Surat. It is the case of the original claimants that when the scooter reached in front of Bhagwati Store, the driver of the truck bearing registration no. GTT­4990 came from the other side in full speed and dashed with the scooter driven by the deceased. The deceased sustained fatal injuries. The claimants filed present claim petition under Section 166 of the Act and claimed compensation of Rs.8 lakhs. Various contentions were raised before the learned Tribunal. The claimants adduced the oral as well as documentary evidence. The appellant Insurance Company specifically contended before the Tribunal that the driver of the truck did not possess the valid and effective license. The Tribunal following ratio laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd vs. Swaran Singh reported in 2004 ACJ 1 (SC) came to the conclusion that the appellant Insurance Company cannot be exonerated on the ground that the driving license possess by the driver of the truck was for a particular type of vehicle only, however, was pleased to observe that it will be open for the appellant Insurance Company to first pay and then recover and the Tribunal ultimately partly allowed the claim petition and awarded an amount of Rs.2,66,800/­ with 9% interest from the date of filing of petition till its realization. Being aggrieved and dissatisfied with the same, appellant Insurance Company has preferred present appeal.

C/FA/1683/2010 JUDGMENT

3.0. Heard Mr. GC Mazmudar, learned advocate for the appellant and Mr. MTM Hakim, learned advocate for the original claimants. Though served, no one appears for the respondent no.3 owner. Presence of driver is not essential for deciding the present claim petition. I have also perused the original record and proceedings of the case.

4.0. Mr. Mazmudar, learned advocate for the appellant has contended that the Tribunal has committed an error in coming to the conclusion that even in case of valid and effective license, the Insurance Company is liable to indemnify the respondents claimants. Mr. Mazmudar contended that the appellant Insurance Company has been given right to recover after first making the payment, however, according to Mr. Mazmudar as per the binding decision of the Hon'ble Supreme Court, the appellant Insurance Company should have been exonerated. According to Mr. Mazmudar said findings deserves to be modified.

5.0. Per contra, Mr. Hakim, learned advocate for the respondents - original claimants supported the impugned judgment and award. Mr. Hakim however candidly submitted that as per the binding decisions of the Hon'ble Supreme Court in case if the driver of the offending vehicle does not possess the valid and effective license, Insurance Company can be exonerated. However, the claimants may be entitled to compensation from the Insurance Company. According to Mr. Hakim, the Tribunal has rightly

C/FA/1683/2010 JUDGMENT

decided the issue, no interference is called for of this Court in exercise of appellate jurisdiction.

6.0. No other and further submissions/ grounds / contentions have been raised by the learned advocates for the respective parties.

7.0. Having perused the record and proceedings of the case and upon re­appreciation of the evidence on record, it clearly appears that the accident has occurred because of negligence on the part of the driver of the truck. The sole contention which is raised by the appellant in this appeal is regarding non effective license. The record indicates that the driver of the truck possesses license for the driving light motor vehicle. The RTO certificate at Exh.76 clearly indicates the same and therefore, the appellant Insurance Company has proved that the driver of the truck was not duly license to drive the heavy motor vehicle like Truck. The aforesaid issue is covered by the judgment of the Hon'ble Supreme Court in the case of Shamanna vs. Oriental Insurance Company reported in (2018) 9 SCC 650, in the case of Pappu and Ors vs. Vinod Kumar Lamba and Another reported in (2018) 3 SCC 208 and in the case of Parminder Singh vs. New India Assurance Company Ltd and Ors reported in (2019) 7 SCC 217. Reverting back to the facts arising in the present appeal, driver of the offending truck did not possess the license to drive the heavy motor vehicle like truck and following the ratio laid down by the aforesaid judgments, appellant Insurance Company deserves to be expectorated. However, Insurance

C/FA/1683/2010 JUDGMENT

Company is required to pay the compensation as decided by the Tribunal first to claimants and then recover the same from the owner who though served has not appeared before this Court, by filing appropriate application for execution of the same. On the aforesaid ground, appeal deserves to be partly allowed only on the aspect of liability as observed herein above. I further clarified that the appellant Insurance Company stands exonerated, however the appellant Insurance Company shall first pay to the respondent claimants and then recover from the owner - respondent no.3 by filing appropriate application for execution. The impugned judgment and award stands modified only to the aforesaid extent. The appeal is thus disposed of accordingly. However, there shall be no order as to costs. Registry is directed to send back the record and proceedings of the case to the Tribunal forthwith.

(R.M.CHHAYA, J) KAUSHIK J. RATHOD