Gujarat High Court
Reliance General Insurance ... vs Kiritkumar Kalyansinh Rathod on 28 April, 2023
Bench: Rajendra M. Sareen
C/FA/2065/2018 JUDGMENT DATED: 28/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2065 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/FIRST APPEAL NO. 2065 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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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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RELIANCE GENERAL INSURANCE COMPANY LTD
Versus
KIRITKUMAR KALYANSINH RATHOD & 2 other(s)
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR S R DABHI(3840) for the Defendant(s) No. 1
MR Y M BRAHMBHATT(6602) for the Defendant(s) No. 1
NOTICE SERVED BY DS for the Defendant(s) No. 2
SERVED BY AFFIX(N) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 28/04/2023
ORAL JUDGMENT
1. Heard learned advocate Mr. Rathin P. Raval for the
appellant. Perused the record. The appellant herein is insurer
C/FA/2065/2018 JUDGMENT DATED: 28/04/2023
of the vehicle in question which is involved in the accident.
Whereas respondent No. 1 is original claimant and respondent
No. 2 and 3 are driver and owner of the vehicle being auto
rickshaw No. GJ 23 U 751, which was involved in accident
and insurer by the appellant. Respondent No.1 - original
claimant has preferred Motor Accident Claims Petition No.1508
of 2009 before the Motor Accident Claims Tribunal (Aux.) at
Kheda @ Nadiad claiming an amount of Rs.2,00,000/- towards
compensation because of injuries received by him in vehicular
accident. As such, the tribunal has awarded Rs.1,12,700/- with
proportionate cost and interest at the rate of 9% per annum
from the date of the claim petition till its realization.
2. It is the case that when respondent No.1 - original
claimant was travelling in such rickshaw on 17.10.2008, the
rickshaw was driven rashly and negligently and in excessive
speed, at that time one Tata Sumo car came in full speed and
both the vehicles were collided with each other and as a
result, claimant sustained serious injuries including fracture.
The vehicle in question was passenger auto rickshaw and,
therefore, appellant - insurance company has contended that
since the driver of the insured vehicle was not having any
driving licence to drive motor vehicle and therefore, insurance
company is not liable to pay compensation.
3. The dispute is only regarding breach of policy condition
and appellant has not challenged the award on any other
issue, this Court has not interfered in quantum of
compensation awarded to the claimant.
C/FA/2065/2018 JUDGMENT DATED: 28/04/2023
4. Therefore, the only issue remains is that driver was not
having permission to ply such passenger rickshaw. Learned
advocate for the appellant has contended that the driver of the
vehicle had been issued a commercial insurance policy, as he
was driving a transport vehicle and that driver was not having
valid and effective driving licence and therefore, it was a
fundamental breach of a policy. However, considering the
smallness of the amount and considering the observations of
the tribunal, it is the case of invalid driving licence. As such
this issue is kept open and is not fully held by this Court to
be treated as precedent.
5. Though not having a valid driving licence, is good reason
for denying the liability of insurance company considering the
settled legal position including following decisions, it is now
clear that in such cases when there is an award in favour of
the claimants, it would be appropriate to direct the insurance
company first to pay the awarded amount with liberty to
recover such amount, which it has paid as per the the award,
from there insured i.e. owner of the vehicle in question. The
principal is now very well known as pay and recover.
(1) National Insurance Co. Ltd. vs. Challa Bharathamma &
Ors. reported in AIR2004 SC 4882;
(2) National Insurance Co. Ltd. vs. Baljit Kaur & Ors.
reported in (2004) 2 SCC 1;
(3) Judgment dated 06.03.2018 in Civil Appeal No.2103 of
2018 between Singh Ram vs. Nirmala;
(4) Judgment and order dated 27.03.2018 in Civil Appeal
No.3315 of 2018 between U.P.S.R.T.C. vs. National
C/FA/2065/2018 JUDGMENT DATED: 28/04/2023
Insurance Co. Ltd.
(5) Judgment and order dated 17.05.2018 in Civil Appeal
No.2253 of 2018 between Amrit Paul Singh & Ors. vs.
TATA AIG General Insurance Co. Ltd. & Ors.
6. In view of the foregoing discussion, it would be
appropriate to direct the insurance company to first pay the
awarded sum to the respondent No.1 - origianl claimant and
then to recover the paid awarded sum from the driver and
owner of the vehicle involved as per the law laid down in
para 26 of Manager, National Insurance Co. Ltd. Vs. Saju P.
Paul reported in 2013(2) SCC 41.
7. In view of above facts and circumstances and decisions
cited herein above, it would be appropriate to allow this
appeal partly by modifying the impugned award so for as to
allow the appellant to recover the amount that might have
been paid by it pursuant to such award from owner of the
vehicle being respondent No.2 herein. It is made clear that for
the purpose insurance company may not have to initiate fresh
litigation since owner has failed to come forward both before
the tribunal as well as before this Court. Therefore, insurance
company is free to directly execute such award against owner.
Appeal is partly allowed to aforesaid extent and disposed of
accordingly.
8. In view of disposal of main appeal, Civil Application does
not survive and disposed of accordingly
C/FA/2065/2018 JUDGMENT DATED: 28/04/2023
9. Record and proceedings if any called for be sent back to
the tribunal.
(RAJENDRA M. SAREEN,J)
DRASHTI K. SHUKLA
