United India Insurance Company ... vs Heirs Of Deceased Dharmesh ...
2022 Latest Caselaw 4893 Guj

     C/FA/3863/2012                               JUDGMENT DATED: 20/05/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3863 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 COMPANY LIMITED
                            Versus
HEIRS OF DECEASED DHARMESH INDUGANPAT UTEKAR BHIMABHAI &
                           1 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 1
RULE SERVED BY DS for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 20/05/2022

                             ORAL JUDGMENT

1. The present first appeal under Section 173 of the Motor Vehicles Act is preferred by the Insurance Company - original opponent No. 2 being aggrieved and dissatisfied by the judgment and award passed in Motor Accident Claim Petition No. 929 of 2002 by

C/FA/3863/2012 JUDGMENT DATED: 20/05/2022

the Motor Accident Claim Tribunal, Vadodara on 01.10.2012, by which the Tribunal has awarded Rs.1,86,000/- with 9% interest per annum from the date of the claim petition to be paid the claimant by the opponent No.1. The Tribunal has further directed the Insurance company - opponent No. 2 to pay the said i.e. Rs.1,86,000/- to the claimant first and it would be open for the insurance company to recover it from opponent No.1. As such, the Tribunal has exonerated the Insurance company from the liability to pay the amount of compensation.

2. The brief facts of the case are as under :

2.1 The claimant is the father of the deceased - Dharmesh Induganpat Utekar. On 21.4.2002, the deceased was returning from his service and when he was going on the VIP Road near Rajivnagar on bicycle, at that time, one tempo bearing registration No. GJ-6-W- 9487 came in rash and negligent manner and dashed with the deceased. Due to that, the deceased received serious injuries and ultimately, he succumbed to the injuries. Therefore, the claim petition is filed by the father of the deceased to get the compensation of Rs.1,50,000/- with interest.

2.2 It is the case of the claimant in the claim petition that the deceased was earning Rs.2,000/- per month by serving in a Grain Shop and he was aged only 25 years at the time of accident. Therefore, the claim petition is filed to get compensation of Rs.1,50,000/-.

2.3 The Tribunal has issued notices to the opponents. Opponent No. 2 - Insurance Company has filed its written statement at Exh. 7, by denying the averments made in the claim petition. The Tribunal,

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after perusing the pleadings of the parties, has framed the issues at Exh. 19 for its determination.

2.4 Thereafter, the Tribunal has proceeded further and claimant has filed his affidavit at Exh.16, where the claimant was cross examined by the other side. The Claimants had also produced documentary evidence i.e. a complaint at Exh. 41, copy of the Panchnama of scene of offence at Exh.42, inquest panchnama at Exh.43 and a copy of the Postmortem Report of the deceased at Exh.44. Thereafter, opponent No.2 - the Insurance Company has examined its witness - Mr. Vinubhai Makwana at Exh.36 and witness Mr. Mohmmad Hanif at Exh.25. The Insurance- company had also produced documentary evidence i.e. Insurance Policy of the vehicle - Tempo at Exh. 37.

2.5 After hearing the arguments of the rival parties, the Tribunal has decided the claim petition by awarding compensation as noted above.

2.6 Hence, this petition by the Insurance company before this Court.

3.1 Learned advocate Mr. Palak Thakkar for the appellant Insurance - Company has submitted that the Tribunal has committed gross error in not properly considering that there is no liability of the Insurance-company since the Tribunal has come to the conclusion that only Opponent No. 1 is liable to pay the compensation, however the Tribunal has erred in giving direction to the insurance company to pay and recover the amount of compensation, which is not erroneous, when the Insurance company has been exonerated by the Tribunal. He has further submitted that such direction given by the

C/FA/3863/2012 JUDGMENT DATED: 20/05/2022

Tribunal is totally perverse, erroneous and is required to be set aside and accordingly, this appeal is required to be allowed. He has relied upon the judgment of this Court rendered in First Appeal No. 3345 of 2011 dated 3.12.2021, reported in 2021(0) AIJEL- 243478, whereby, this Court has found that direction to pay and recover cannot be passed in such cases.

3.2 Learned advocate Mr. Thakkar for the insurance company has further submitted that the driver of the Vehicle was not holding valid driving licence and therefore, the Insurance company cannot be held liable. He has also submitted that in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Savitridevi and others, reported in 2012(4) SCALE 111, the appellant is liable to pay the compensation under Section 166 of the Act and order passed by the Tribunal with regard to that, is required to be set aside. He has submitted that though the Insurance - Company has taken defense under Section 140 of the Act, in view of Sections 147, 147(2), 149 and 149(2) of the Motor Vehicles Act on the ground that in view of the breach of terms and conditions of the policy, the liability of the Insurance- Company cannot be fastened by the Tribunal.

3.3 Therefore, he prayed to allow the present appeal and in any case if the Court is not convince, then appropriate direction may be passed in view of the Judgment of the Hon'ble Apex Court in the case of Oriental India Insurance Company Limited versus Nanjappan reported in 2004(13) SCC 224 about the recovery procedure.

4.1 Per contra, Mr. Makbul Mansuri, learned advocate for the original claimant has submitted that this judgment which is cited at

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the bar by Mr. Thakkar, learned advocate for the insurance company, is contrary and it is helpful to the claimant, as this Court, while deciding First Appeal No. 3345 of 2011, has ultimately directed that the Insurance Company can pay the compensation to the claimant and recover from the owner of the vehicle - tortfeasor(s). He has submitted that in the present case, the Tribunal has discussed about the direction in its judgment, at length and has given direction for pay and recover.

4.2 He has further submitted that the Tribunal has dealt with the contentions about the driving licence also. He has submitted that the driver - Amar Narendrabhai Marwadi was holding driving licence to drive auto-rickshaw and the RC Book is also produced on record at Exh.24 to show that the vehicle involved in the accident was Auto - Rickshaw - D- Van, which means Light Goods Vehicle. He has further submitted that driver and owner of the vehicle are the same person. He also submitted that the licence produced at Exh.27 shows that the holder of the licence viz., Amar Marwadi was authorized to drive Non Transport Vehicle and on the said basis, the Tribunal has found that the owner-cum-driver has driven the goods vehicle, even though he was not holding licence for the same. In view of the Judgment in case of Mukund Dewangan versus Oriental Insurance Co. Ltd., reported in AIR 2017 SC 3668, the issue is now settled. Even as per the judgment of the Hon'ble Supreme Court, the controversy about the driving transport vehicle by the person who is holding non transport licence, can also be considered as valid driving licence and therefore, he has submitted that the present appeal deserves to be dismissed as the Tribunal has not committed any error in passing the order of pay and recover. Therefore, he prayed to dismiss the present Appeal.

C/FA/3863/2012 JUDGMENT DATED: 20/05/2022

5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

6.1 I have considered the rival submissions made by the rival parties. I have also perused the record and proceedings of the Tribunal. I have considered the impugned judgment and order passed by the Tribunal. The Tribunal has discussed at length in the judgment at Para Nos. 11.1 and 11.2 about the pay and recover and I found that the Tribunal has given cogent and convincing reasons for the same. The Tribunal has passed the order regarding pay and recover, otherwise, in view of the judgment in case of Mukund Dewangang (supra), which is referred to the larger Bench, which is still holding the field. Therefore, in that view of the judgment, the Insurance - Company is also liable to pay the amount of compensation jointly and severally, but since the Tribunal has protected the interest of the Insurance - Company by directing that the amount of compensation be given to the claimant and then to recover from the owner of the vehicle, I found that there is no error committed by the Tribunal by directing the insurance company to pay and recover, as in absence of any other appeal from the claimant, such findings of pay and recover is just and proper and in view of the absence of cross objection or appeal filed by the claimant, it is not proper to modify the direction of the Tribunal by which the Tribunal

C/FA/3863/2012 JUDGMENT DATED: 20/05/2022

has exonerated the Insurance Company from its liability. I found that it is proper to dismiss the present appeal as meritless.

6.2 With regarding to the submissions made by the learned advocate Mr. Thakkar for the Insurance company qua resorting to the direction given in the judgment of the Hon'ble Apex court in the case of Nanjappan (supra) about the recovery procedure, it is permissible under the law for recovery of the amount from the owner of the vehicle after paying amount to the claimant as directed by the Tribunal.

6.3 Accordingly, the present appeal is required to be dismissed.

7. In view of above, the following order is passed.

7.1 The present appeal is dismissed, with no order as to costs.

7.2 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, in favour of the claimant, by account payee cheque, by following due procedure and after proper verification.

7.3 Record and Proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE