New India Insurance Company Ltd vs Heirs Of Decd. Sandhya @ Hema ...
2021 Latest Caselaw 4505 Guj

          C/FA/3510/2012                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 3510 of 2012


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 COMPANY LTD
                             Versus
      HEIRS OF DECD. SANDHYA @ HEMA RAMAMANOJ & 3 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE SERVED(64) for the Defendant(s) No. 3
SERVED BY AFFIX. (R)(67) for the Defendant(s) No. 4
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                   Date : 22/03/2021

                                  ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied by the judgment and award dated 21.6.2012 passed by

C/FA/3510/2012 JUDGMENT

the Motor Accident Claims Tribunal, Ahmedabad Rural in MACP No.1635/01, the appellant - insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following facts emerge from the record of the appeal:­

That, the accident took place on 12.10.2001 at Ahmedabad. It is the case of the original claimants that while minor - Sandhya was walking on the extreme left side of the road, the driver of Hero Honda motorcycle bearing registration no. GJ­5 L­1000 came from the other side and dashed with the minor, because of which, she sustained serious injuries and ultimately succumbed to the injuries at Shardaben Hospital, Ahmedabad. An FIR was lodged at Odhav Police Station at Exh.42 and the present claim petition was filed by the original claimants under Section 166 of the Act and claimed compensation of Rs.1,50,000/­. The respondent no.1 - original claimant no.1 was examined at Exh.36 and the original claimants also relied upon the documentary evidence, such as, FIR Exh.42, Panchnama Exh.43, inquest Panchnama Exh.44, copy of the postmortem report Exh.45, school leaving certificate Exh.46. The insurance Company also

C/FA/3510/2012 JUDGMENT

examined one Danabhai Lakhabhai Parmar at Exh.56 who happens to be officer of the Road Transport Office, Ahmedabad and one Mahendrasinh Tapubha Zala at Exh.61 who happens to be the Head Constable working with Odhav Police Station. The Tribunal, after examining and appreciating the evidence on record, did not believe the case of the insurance Company that the driver of Hero Hondo motorcycle was not possessing effective and valid licence to drive motorcycle and ultimately, partly allowed the claim petition and awarded a sum of Rs.1,34,500/­ with interest at the rate of 7.5 % per annum from the date of filing of the claim petition till its realization. Being aggrieved by the same, the present appeal is filed by the appellant - insurance Company.

3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant - insurance Company and Mr. Hiren Modi, learned advocate for the original claimants. Though served, no one appears for the driver and owner.

4. Mr. Mazmudar, learned advocate for the appellant has contended that the Tribunal has not appreciated the oral evidence of Danabhai Lakhabhai Parmar at Exh.56 and Mahendrasinh Tapubha Zala at Exh.61 and has committed an

C/FA/3510/2012 JUDGMENT

obvious error in coming to the conclusion that the appellant - insurance Company has not proved that the driver of Hero Hondo motorcycle did not possess license to drive the motorcycle. Mr. Mazmudar further submitted that the conclusion drawn by the Tribunal that as the driver of Hero Honda motorcycle is not examined by the insurance Company, an adverse inference is required to be drawn. Mr. Mazmudar further contended that the Tribunal has also wrongly come to the conclusion that the appellant - insurance Company could not prove that the driver of the motorcycle did not possess valid and effective license to drive the motorcycle.

5. Mr. Hiren Modi, learned advocate for the original claimants has supported the impugned judgment and award.

6. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. Upon perusal of the original record and proceedings and considering the grounds raised in this appeal, it would be appropriate to refer to the deposition of Danabhai Lakhabhai Parmar at Exh.56 examined by the appellant -

  C/FA/3510/2012                                                 JUDGMENT



insurance          Company.       Upon           reappreciating                  the

said evidence on record, it clearly appears that the said witness was working in the License Issue Branch of RTO Office, Ahmedabad and has also produced on record the RTO certificate at Exh.57 and the photocopy of the Smart Card driving license at Exh.58. Cumulatively, the documents at Exhs.57 and 58 indicate that the driver of Hero Honda motorcycle did not possess any licence to drive the motorcycle. It is clear from the said evidence that the driver of the Hero Honda motorcycle possessed license to drive MGV and P. BUS. It shows that the driver of the motorcycle did not possess license/permission to drive the motorcycle. It appears that the insurance Company has proved the said fact and has also examined the Police Constable who was working as a Head Constable in the year of the accident at Odhav Police Station, Ahmedabad. The said witness - Mahendrasinh Tapubha Zala at Exh.61 has clearly deposed that the driver of the motorcycle did not have any license to drive the motorcycle. Upon reappreciation of the evidence on record therefore, this Court is of the opinion that the Tribunal has committed an error in coming to the conclusion that the appellant - insurance Company could not prove that the driver of the motorcycle did not have

C/FA/3510/2012 JUDGMENT

a valid license to drive the motorcycle. On the contrary, on reappreciation of the same, the insurance Company has established the fact that the driver of the motorcycle did not have license to drive the motorcycle. In light of the aforesaid therefore, such finding arrived at by the Tribunal is erroneous.

8. However, following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh & Ors., reported in (2004) 3 SCC 297 as well as in the case of Pappu & Ors. Vs. Vinod Kumar Lamba & Anr., reported in (2018) 3 SCC 208 and other catena of decisions, though insurance Company stands exonerated, it has to first pay and then to recover from the owner of the offending vehicle.

9. Accordingly, the appeal is partly allowed. The appellant - insurance Company is exonerated. However, the appellant - insurance Company is directed to pay the amount as awarded by the Tribunal first to the respondents - original claimants and then to recover the said amount from the owner by filing an execution. The impugned judgment and award stands modified only to the aforesaid extent. The appeal is partly allowed. However, there shall be no

C/FA/3510/2012 JUDGMENT

order as to costs. Registry is directed to send the original record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA, J) MRP