United India Insurance Co Ltd vs Niruben Wd/O Gulabbhai Balubhai ...
2021 Latest Caselaw 4520 Guj

          C/FA/867/2013                                            JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 867 of 2013


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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                UNITED INDIA INSURANCE CO LTD
                             Versus
       NIRUBEN WD/O GULABBHAI BALUBHAI RATHOD & 5 other(s)
==========================================================
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. 1,2,3,4
MS MEENA VYAS(3315) for the Defendant(s) No. 5,6
RULE SERVED(64) for the Defendant(s) No. 5,6
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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 30.3.2012 passed by the Motor Accident Claims Tribunal (Aux), Surat in MACP No.113/93, the appellant -

        insurance           Company     has         preferred      this        appeal




       C/FA/867/2013                                    JUDGMENT

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 occurred on 11.10.1992 between the bicycle and motorcycle. As per the record, on the date of the accident, deceased- Gulabbhai Rathod was going on on his bicycle and when he reached the place of accident, the motorcycle bearing registration no. GCZ - 3632 dashed with the bicycle, because of which, the deceased sustained grievous injuries and succumbed to the same. The original claimants filed the present claim petition and claimed compensation of Rs.3,00,000/­. Oral as well as documentary evidences were adduced before the Tribunal. As far as the liability is concerned, the appellant - insurance Company relied upon the insurance policy at Exh.74 as well as oral deposition of one Nisha Anilbhai Mehta, officer from the RTO, Surat Exh.63 and RTO certificate Exh.64. It was specifically the case of the appellant - insurance Company that the appellant - insurance Company is not liable to pay the amount of compensation as there is breach of terms and conditions of the insurance policy. The Tribunal ultimately partly allowed the claim petition and awarded

C/FA/867/2013 JUDGMENT

a sum of Rs.2,15,740/­. The Tribunal, while partly allowing the claim petition, made all the opponents i.e. including the appellant jointly and severally liable to pay the amount of compensation and also provided that the appellant - insurance Company has a right to recover the amount from the owner subsequently.

3. Mr. Mazmudar, learned advocate for the appellant has raised the sole contention that the appellant - insurance Company deserves to be exonerated on the ground that the driver of the motorcycle was not holding an effective and valid license and that there was breach of the terms and conditions of the policy. It was further contended that though the Tribunal has permitted recovery subsequently from the owner of the motorcycle, the appellant - insurance Company has been wrongly made liable to pay first and then to recover the amount.

4. Mr. Hiren Modi, learned advocate for the original claimants and Ms. Meena Vyas, learned advocate for the owner and driver of the motorcycle have supported the impugned judgment and award.

5.   No    other       or     further            submissions,          grounds
     and/or      contentions             are     made   by   the       learned




        C/FA/867/2013                                           JUDGMENT



     advocates              appearing           for     the       respective
     parties.

6. I have gone through the relevant documentary evidence evidence on record, copies of which were provided by Mr. Mazmudar, learned advocate for the appellant for perusal of this Court. Upon considering the submissions made and upon reappreciation of the evidence on record, no interference is called for. It deserves to be noted that the Tribunal has also come to the conclusion that as there was no valid and effective license, the insurance Company is not made primarily liable. However, following the decisions of the Hon'ble Apex Court in the case of Pappu & Ors. Vs. Vinod Kumar Lamba & Anr., reported in (2018) 3 SCC 208 and other catena of decisions, the appellant - insurance Company has to pay the same and then to recover from the owner by filing an execution petition.

7. The appeal is otherwise not allowed on merits and the same stands disposed of. However, there shall be no order as to costs.

(R.M.CHHAYA, J) MRP