Gujarat High Court
Reliance General Insurance Co Ltd vs Labhuben Jethabhai Kaid on 22 October, 2021
Bench: A.G.Uraizee
C/FA/1469/2021 ORDER DATED: 22/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1469 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 1469 of 2021
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RELIANCE GENERAL INSURANCE CO LTD
Versus
LABHUBEN JETHABHAI KAID
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 22/10/2021
ORAL ORDER
Order in First Appeal
1. The judgment and award dated 10.12.2020 passed by
the learned MACT (Main), Morbi in MACP No.57 of 2017
is assailed by the Insurance Company in this appeal under
Section 173 of the Motor Vehicles Act ('M.V. Act' for
short).
2. I have heard Mr. Rathin P. Raval, learned advocate
for the appellant - Insurance Company. There is no
representation on behalf of the respondents though served
with the notice for final disposal of the appeal.
3. Mr. Raval, learned advocate vehemently submits that
the Tribunal has not properly considered the legal defence
as raised by the appellant - Insurance Company in written
statement and written arguments with respect to legal
liability of the Insurance Company as the driver of the
offending vehicle did not have a valid driving license to
drive the vehicle on the date of accident. He submits that
the driver of the offending vehicle was having the license
C/FA/1469/2021 ORDER DATED: 22/10/2021
to drive only motorcycle and light motor vehicle.
However, he was driving a truck which is transport/heavy
goods vehicle. He, therefore, submits that the tribunal has
committed an error in fastening the liability of
compensation on the Insurance Company. It is his
submission that the tribunal has not considered the driving
license Exhibit-79 and the oral evidence on oath of the
legal officer of the appellant - Insurance Company. He
further submits that Exhibit-73 application for examining
the RTO Officer was rejected by the tribunal as yet the
tribunal has recorded the findings that the appellant -
Insurance Company has not examined the RTO Officer. He,
therefore, in view of the decision of the Supreme Court in
the case of National Insurance Company Limited v.
Nanubhai, 2021 ACJ 995 submits that the impugned order
of the tribunal may be modified and the liberty may be
reserved in favour of the appellant - Insurance Company
to recover the compensation from the owner.
4. I have considered the submission of Mr. Raval,
learned advocate for the appellant.
5. The sole question which is involved in the present
appeal is whether the tribunal has committed an error in
fastening the liability of compensation on the Insurance
Company as the driver of the offending truck was not
holding valid and effective license to drive heavy motor
vehicle truck.
6. It may be noted at this stage that it was very
vehemently argued by the learned advocate for the
appellant - Insurance Company before the tribunal that
C/FA/1469/2021 ORDER DATED: 22/10/2021
the driver of the offending truck being registration No.GJ-
3-AT-2935 was not holding valid and effective driving
license to drive the offending vehicle truck. It was also
argued that the driving license produced vide Exhibit-79
was for motorcycle and light motor vehicle and not for
heavy vehicle and it was therefore urged that the
Insurance Company was not liable to pay the
compensation.
7. The tribunal after considering the rival submissions
on the issue and after referring the various decisions of
the Supreme Court has fasten the liability of payment of
compensation on the appellant - Insurance Company on
the ground that cross examination of witness of the
appellant - Insurance Company and non examination of
RTO Officer to prove that at the time of accident, driver
of truck was not holding valid and effective license.
8. The findings of the tribunal are erroneous on the face
of the record. It is an undisputed fact that the appellant -
Insurance Company has submitted Exhibit-73 application
for examining the RTO Officer which was not considered
by the tribunal on the ground that license is already
produced on record. It is recorded by the tribunal itself as
is and which is evidence from the driving license Exhibit-
79 that the driver of the offending vehicle was holding
license to drive motorcycle and light motor vehicle only,
in other words, the driver of the offending truck was not
holding a valid and effective license to drive transport
vehicle/heavy vehicle.
C/FA/1469/2021 ORDER DATED: 22/10/2021
9. In view thereof, the tribunal has clearly fallen in
error in fastening the liability of payment of compensation
on the appellant - Insurance Company.
10. Considering the proposition of law expounded by the
Supreme Court in the case of National Insurance Company
v. Nanubhai (supra), the tribunal ought to have while
exonerating the Insurance Company from its liability to
pay the compensation ought to have directed it to pay the
compensation and then recover the same from the owner
of the offending vehicle truck.
11. For the foregoing reasons, the appeal succeeds in
part. The impugned judgment and award of the tribunal is
hereby modified. The appellant - Insurance Company is
exonerated from its liability to pay compensation to the
claimants. However, it is directed to pay the compensation
to the claimants and then recover the same from the
owner of the vehicle.
Order in Civil Application
1. In view of the order passed in the main appeal, Civil
Application does not survive and stands disposed of
accordingly.
(A.G.URAIZEE, J)
Manoj
