Iffco Tokio General Insurance Co ... vs Radhaben Manilal Ravat
2021 Latest Caselaw 14788 Guj

     C/FA/1521/2021                                  ORDER DATED: 22/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 1521 of 2021
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                  In
                    R/FIRST APPEAL NO. 1521 of 2021
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                        IFFCO TOKIO GENERAL INSURANCE CO LTD
                                            Versus
                                 RADHABEN MANILAL RAVAT
==============================================================================
Appearance:
MR. ALKESH N SHAH(3749) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5,6,7,8,9
RULE SERVED(64) for the Defendant(s) No. 10,11
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  CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
                   Date : 22/09/2021
                    ORAL ORDER

1. In this appeal under Section 173 of the Motor Vehicles Act, 1988 ('M.V. Act' for short), the appellant-Insurance Company has assailed the judgment and award dated 11.02.2021 passed by MACT (Aux.) 8th Additional District Judge, Panchmahal at Godhara in MACP No.36/2016 to question its liability to pay the compensation.

2. The facts giving rise to the appeal as could be gathered from the impugned judgment that on 09.10.2015 at about 19 hours the deceased was standing on the road side when respondent No.10 came with tempo bearing Registration No. GJ-18-T-2001 in rash and negligent manner at high and excessive speed and dashed with the deceased. The deceased suffered fatal injuries and passed away during the treatment. The offending tempo was of the ownership of respondent No.11 herein and it was insured with the appellant-Insurance Company.

3. The respondent No.1 to 9 legal heirs of the deceased filed MACP No.36/2016 in the Claims Tribunal, Panchmahal at Godhara to recover Rs.20 lac with interest as

C/FA/1521/2021 ORDER DATED: 22/09/2021

compensation from the appellant and respondent No.10 &

11.

4. The respondent No.10 & 11 though served and does not appear in the proceedings of the Claim Petition and tribunal passed ex parte against them. The appellant-Insurance Company resisted the Claim Petition by filing of written statement Exh.13. Wherein, the forms and statements made in the Claim Petition are denied.

5. The Tribunal, after considering the poral and documentary evidence partly allowed the Claim Petition and directed the appellant and respondent No.10 & 11 to pay a sum of Rs.14,95,165/- with 9% interest and proportionate costs jointly and severely to the claimants.

6. The appellant-Insurance Company being aggrieved by and dissatisfied with the fastening of the liability of payment of compensation has preferred the present appeal.

7. I have heard Mr. A.N. Shah, learned advocate for the appellant-Insurance Company and Mr. Nishit Bhalodi, learned advocate for the claimants. There is no appearance on behalf of the respondent No.10&11 despite service of notice.

8. Mr. Shah, learned advocate for the Insurance Company submits that the tribunal has committed an error in fastening the liability of payment of compensation on the appellant- Insurance Company as the offending vehicle was being plied without valid permit. He submits that the notice was served on the respondent No.11 to produce the permit, however, despite receipt of notice, respondent No.10 neither produce the permit nor participated in the proceedings of Claim

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Petition. According to his submission, that the absence of permit to ply the offending vehicle amounts to infraction of terms of insurance policy, and therefore, Insurance Company is not liable to pay the compensation. He, therefore, urges that in view of the decision of the Supreme Court in the case of Amrit Paul Singh and Another v. Tata AIG General Insurance Company and others reported in 2018 (7) SCC 558, impugned judgment may be modified and the appellant- Insurance Company may be exonerated from its liability to make payment. He, therefore, submits that the Insurance Company may be directed to make the payment of compensation with liberty to recover the same from the insured.

9. The sole question that falls for consideration in this appeal is whether the tribunal has committed an error in holding the appellant-Insurance Company liable to pay the compensation jointly and severely with the driver and insured offending vehicle though the permit to ply the offending vehicle was not forth coming on the record of the Claim Petition.

10. The Supreme Court in the case of Amrit Paul Singh (supra) has observed as under in para-24:-

"24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot e taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental

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statutory infraction. We are disposed to think so in view of the series of exceptions carved out in section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in swaran singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that he vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle."

11. It is eminently clear that it is obligatory on the part of the insured to produce the permit in case where the Insurance Company has taken a clear stand that there was no permit to ply the vehicle. In the situation like this, the owner cannot costs on the insurer produce the permit.

12. It is eminently clear from the impugned judgment and the appellant has taken clear stand that the offending vehicle was being plied without permit. The insurer (Respondent No.11) though served with the summons of the Claim Petition, chose not to participate in the proceedings. Not only that he was called upon by the appellant-Insurance Company to produce the permit if any by registered post. Despite receipt of the notice respondent No.11 did not care to produce the permit on record of the Claim Petition. Under the circumstances, it is palpably clear that the tribunal has committed an error in mulcting the liability of payment of

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compensation on the appellant-Insurance Company directed to pay the compensation with liberty to recover the same from the insured in view of the decision of the Supreme Court in case of Amrit Paul Singh (supra).

13. I am, therefore, of the considered view that to the aforesaid extent the impugned judgment is required to be interfered with in this appeal.

14. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and award is modified to the extent that appellant-Insurance Company is exonerated from the liability to make compensation. However, the appellant- Insurance Company is directed to pay the awarded compensation to the claimant and thereafter recover the same from the owner insurer in accordance with law.

15. The appeal is allowed to the aforesaid extent.

16. The appellant-Insurance Company has deposited the entire amount of compensation together with interest and proportionate costs in the tribunal in compliance of order of this Court passed in Civil Application No.1/2021. The tribunal is, therefore, directed to disburse the compensation in favour of the claimants in terms of the impugned judgment and award.

17. Civil Application, accordingly, stands disposed of.

(A.G.URAIZEE, J)

Manoj