Gujarat High Court
National Insurance Company ... vs Sumanben Hamabhai Revabhai on 14 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/554/2019 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 554 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 554 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATIONAL INSURANCE COMPANY LIMITED
Versus
SUMANBEN HAMABHAI REVABHAI
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Opponent(s) No. 1,2,3
NOTICE SERVED for the Opponent(s) No. 4
UNSERVED REFUSED (N) for the Opponent(s) No. 5
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 14/12/2022
ORAL JUDGMENT
1. Admit. Learned advocate Mr. Mohsin M. Hakim waives service qua
C/FA/554/2019 JUDGMENT DATED: 14/12/2022
respondent Nos. 1, 2, 3.
2. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988
(MV Act) by the appellant - The National Insurance Company Limited [Original
Opponent No.3], challenging the judgment and award dated 9.7.2018 passed in Motor
Accident Claim Petition No. 1712 of 2004 by the learned Motor Accident Claims
Tribunal (Auxiliary), Vadodara, whereby, the Claim Petition is partly allowed and the
Opponent No.1 to 3 are ordered to pay Rs.4,45,300/- as compensation to the
Petitioners jointly and severally together with interest at the rate of 9% p.a. and
proportionate costs from the date of Claim Petition till its realization.
3. Heard, learned advocate Mr. Maulik J. Shelat for the appellant - National
Insurance Company and learned advocate Mr. Mohsin M. Hakim for the respondent
Nos. 1, 2 and 3. The cause list shows that Respondent No.5 is unserved refused but it
is also served.
4. The sole contention that has been raised by the learned advocate for the
appellant is that the learned Tribunal has committed jurisdictional error by not
deciding legal defence raised by the Appellant while defending claim petition in its
true spirit and it has materially erred in ignoring the settled legal position of law by
holding appellant liable to pay compensation. The learned Advocate for the
Appellant has further submitted that the learned Tribunal has materially erred in
completely ignoring the provisions of Sections 2, 3, 5, 10 and 14 of the M.V.Act and
has erred in holding the Appellant liable to pay compensation. He has further stated
urged that the learned Tribunal has materially erred in not appreciating that the
insured trailer driver was driving HGV class of vehicle holding licence to drive only
Motorcycle at the time of accident and having not obtained any license to drive HGV
than the Insurance Company could not have been held liable to pay compensation.
The learned Advocate has submitted that the learned Tribunal has not considered the
judgment in case of New India Assurance Company Ltd. vs. Babiben Babubhai
C/FA/554/2019 JUDGMENT DATED: 14/12/2022
Motibhai Dodiya passed by the High Court in First Appeal No. 3135 of 2008 on
5.2.2013. It is further submitted that the learned Tribunal has also not considered the
ratio laid by the Hon'ble Apex Court in case of Zaharulnisha & ors. reported in
2008(12) SCC 385 on the settled proposition of law that the Insurance Company
cannot be held liable to pay the amount of compensation to the claimants for the cause
of death of in a road accident which had occurred due to rash and negligent driving by
the vehicle owner who admittedly had no valid and effective license to drive the
vehicle. It is further submitted that learned Tribunal ought to have appreciated the
judgment of the Hon'ble Supreme Court in case of Nation Insurance Company Ltd. v.
Swaran Singh, reported in 2004 (3) SCC 297. Learned Advocate for the Appellant
has drawn the attention of this Court that stand taken by the Appellant in his written
arguments has not been considered by the learned Tribunal. Learned Advocate for the
Appellant has therefore urged that the matter may be remanded back to the learned
Tribunal for deciding afresh on merits.
5. Per contra, learned Advocate Mr. Mohsin M. Hakim for Respondent Nos.
1,2,3 has objected to remand the matter to the Tribunal.
6. Having heard the arguments advanced by both the sides and perusing the
judgment and award dated 9.7.2018 passed in Motor Accident Claim Petition No.
1712 of 2004 by the learned Motor Accident Claims Tribunal (Auxiliary), Vadodara,
without burdening this judgment anymore, it appears that the reasons are in brief and
merely res ipsa loquitur, in the considered opinion of this Court, the appeal is
required to be allowed by setting aside the impugned judgment and award. In the
opinion of this Court, nowhere the issue of driving license is discussed and therefore
it appears that the learned Tribunal has lost sight of discussing the material issue of
driving license. Upon such premises, this Court is of the opinion that the matter is
required to be remanded back in the interest of justice. Therefore, considering the fact
that the MV Act is a benevolent legislation, the Court deems it proper to remand back
the matter to the Tribunal to decide the same afresh in a time frame schedule.
C/FA/554/2019 JUDGMENT DATED: 14/12/2022
7. In the aforesaid backdrop, this appeal succeeds and is allowed accordingly.
The impugned judgment and award, as referred to herein above, is hereby set aside.
The matter is remanded back to the Tribunal concerned for deciding the same afresh,
in accordance with law, without being influenced by any order. Amount, if any,
disbursed in favour of claimant / invested in fixed deposit, shall not be disturbed and
the same shall be subject to the final out come of the claim petition so decided afresh.
8. In view of main appeal is disposed of, civil application therein does not
survive and the same also stands disposed of accordingly.
(A. C. JOSHI,J)
J.N.W
