Sarvajanik Vikas Mandal vs Hdfc Chubb General Insurance Co. ...
2022 Latest Caselaw 202 Guj

      C/FA/1236/2020                           JUDGMENT DATED: 06/01/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/FIRST APPEAL NO. 1236 of 2020
                              With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
               In R/FIRST APPEAL NO. 1236 of 2020
                              With
      CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL
                    EVIDENCES) NO. 1 of 2021
               In R/FIRST APPEAL NO. 1236 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI                             Sd/-

==========================================

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 of           No
     the judgment ?

4    Whether this case involves a substantial question of           No
     law as to the interpretation of the Constitution of
     India or any order made thereunder ?

==========================================
                   SARVAJANIK VIKAS MANDAL
                               Versus
             HDFC CHUBB GENERAL INSURANCE CO. LTD
==========================================
Appearance:
KUSHAL A DESAI(9435) for the Appellant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 2
==========================================
     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                           Date : 06/01/2022
                            ORAL JUDGMENT

1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is

C/FA/1236/2020 JUDGMENT DATED: 06/01/2022

filed by the appellants, who are owner and driver of the offending vehicle, held to be responsible for payment of compensation to the claimants by judgment and award dated 10.01.2014 passed by Motor Accidents Claims Tribunal (Main), Panchamahals at Godhra in M.A.C.P. No.1132 of 2007.

2. The short facts of the case are here as under:-

2.1 It is the case of the claimant that on 16.04.2007, he was riding Motorcycle bearing registration No. GJ-17-M-6187. When he reached at the place of occurrence, the appellant No.2 herein - Driver of Car bearing registration No. GJ-17-N-6780 came from opposite side in a rash and negligent manner and with excessive speed, dashed with the motorcycle driven by the claimant. The claimant sustained severe injuries. It is further averred in the claim petition that accident occurred due to the rash and negligent driving on the part of the driver of car bearing registration No. GJ-17-N-6780, who is appellant No.2 herein.

2.2 On account of the said accident, the claimant has sustained permanent partial disablement and also spent amount for the medical treatment, medicines, transportation, attendants, special diet, etc. and hence, claimed Rs.3,00,000/- as compensation under various heads with interest at the rate of 24% per annum from the date of filing of the claim petition till its realization from the opponents, jointly and severally.

2.3 Pursuant to the filing of the claim petition, the respondents therein were served with the notices and appellants - original opponent Nos.1 and 2 appeared through an advocate. Respondent No.3 - Insurance Company, of the vehicle owned by appellant No.1 herein, appeared in the Tribunal and filed its written statement at Exh.14. However, on conclusion of evidence and hearing the parties, the learned Tribunal dismissed the claim petition against the respondent

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No.3 therein - Insurance Company on the ground that registration certificate of the vehicle bearing registration No. GJ-17-N-6780 was not produced before the Tribunal. The Tribunal has also recorded that the original claimant produced the copy of policy vide Mark 18/3, whereas Insurance Company also produced the same policy vide Exhibit-30. However, since no registration certificate of the vehicle involved in the accident is produced, the claim against Insurance Company was rejected as Tribunal was not able to conclude whether the involved vehicle is insured with the opponent No.3 or not.

3. Heard learned advocates for the appearing parties. Mr. Kushal A. Desai, learned advocate for the applicant submitted that the Car involved in the accident was purchased on 27.06.2006 and the insurance coverage was up to 26.06.2007. At the time of obtaining the first policy for a new vehicle, registration number was awaited and therefore, it is not reflected in the insurance policy. He has further submitted that engine number and chassis number of the offending vehicle is very much mentioned in the insurance policy. He has further submitted that the accident in the present case took place on 16.04.2007. Though registration certificate may be available at that time, it could not be produced for unavoidable circumstances and under an impression that since engine number and chassis number of the vehicle is mentioned in the insurance policy, based on that coverage, claim application could be determined. However, he has further submitted that for production of Vehicle Registration Certificate by way of additional evidence, under Order XLI Rule 27 of the Code of Civil Procedure, 1908, an application is already filed vide Civil Application No.1 of 2021 in First Appeal No.1236 of 2020. Drawing attention of the Court to the registration certificate annexed with the aforesaid application for additional evidence along with the copy of insurance policy, he submitted that registration number as also engine number and chassis number is reflected and on comparison thereof

C/FA/1236/2020 JUDGMENT DATED: 06/01/2022

with the insurance policy, it can very well be ascertained that the insurance policy produced by the Insurance Company at Exh.30 as also Mark 18/3 produced by the claimants is for the very same vehicle involved in the accident bearing registration No. GJ-17-N-6780.

4. Mr. Maulik J. Shelat, learned advocate for the respondent No.1 herein - Insurance Company, submitted that they have already verified at their end and confirmed that insurance policy which is produced, is for the motor vehicle bearing registration No. GJ-17-N-6780, and therefore, he has no objection if application for additional evidence is allowed and vehicle registration certificate is read into the evidence as undisputed. Hence, Civil Application No.1 of 2021 is hereby allowed and disposed of, for doing substantial justice.

The documents like Registration certificate, for which there is no dispute either by the Insurance Company or by the claimant, it is hereby admitted to the evidence without formal proof thereof.

5. Considering the ground of rejection of a claim of the claimants holding appellants - driver and owner of the offending vehicle liable for compensation for want of production of registration certificate, which would reflect the engine number and chassis number along with registration number of the offending vehicle, would no more survive. Mr. Maulik J. Shelat, learned advocate for the Insurance Company has also conceded that the said insurance policy, as ascertained, is of the very same offending vehicle bearing registration No. GJ-17-N-6780 and therefore, the owner can be indemnified for the compensation awarded for an accident as covered under the claim petition. Hence, the impugned judgment and award is modified so far as it exonerates Insurance Company, dismissing the claim against it, by holding owner, driver and Insurance Company jointly and severally liable for the compensation awarded by the Tribunal. So far as amount of compensation determined, there is no dispute by anyone. Insurance

C/FA/1236/2020 JUDGMENT DATED: 06/01/2022

Company which was exonerated from indemnifying the claim only on the ground of non-production of registration certificate so as unable to compare the engine number and chassis number of the offending vehicle, is hereby, in view of allowing application for production of additional evidence, is modified to the aforesaid extent.

6. Over and above that, since learned advocates for the appearing parties have consented for reducing the rate of interest which is awarded at the rate of 9% per annum to be 7.5% per annum. The impugned judgment and award is also required to be interfered with to that extent also. In view thereof, the owner, driver and Insurance Company is jointly held responsible to pay the amount of compensation with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization. Insurance Company is directed to deposit the aforesaid amount within a period of 8 weeks from the receipt of the certified copy of the present judgment.

7. Mr. Nishit A. Bhalodi, learned advocate for the original claimant submitted that since the accident is of the year 2007 and claim petition is decided in the year 2014, no fruitful purpose would be served directing investment of the major part of the compensation as claimant is awaiting for it since long. Therefore, Tribunal may permit the original claimant to withdraw 50% of the amount deposited, pursuant to this judgment after ascertaining identity through A/c Payee cheque. Rest of the amount shall be invested in a Fixed Deposit receipt for a period of 5 (Five) years only. The original claimant is permitted to draw periodical interest thereon. No any loan or advance or encashment of it shall be permitted without the prior permission of the Tribunal.

Appeal is allowed to the aforesaid extent. Connected civil applications stand disposed of accordingly.

(UMESH A. TRIVEDI, J.) Raj S. Dhobi