Gujarat High Court

Hdfc Ergo General Insurance ... vs Paluben Bhimabhai Rathod on 1 August, 2023

Bench: Gita Gopi

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      C/FA/219/2020                                  ORDER DATED: 01/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 219 of 2020

                                   With

               CIVIL APPLICATION (FOR STAY) NO. 1 of 2019

                                     In

                      R/FIRST APPEAL NO. 219 of 2020
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            HDFC ERGO GENERAL INSURANCE COMPANY LTD
                             Versus
                    PALUBEN BHIMABHAI RATHOD
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR NABIL BLOCH ADVOCATE FOR MR ASHOK H TRIVEDI(3665) for the
Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 01/08/2023

                              ORAL ORDER

1. The Insurance Company has challenged the

judgment and award dated 04.09.2019 passed by the

Motor Accident Claims Tribunal (Auxi.), Jamnagar

in MACP No.416 of 2012.

2. The grounds inter alia raised are that

the learned Tribunal erred in overlooking the

pleadings and evidence on record, and has not

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properly appreciated the oral evidence of the

appellant's officer recorded at Exh.64. The

learned Tribunal ought to have appreciated that

the owner-cum-driver of the insured rickshaw was

not holding valid license to drive auto rickshaw,

and the learned Tribunal has further erred in not

appreciating the RTO Certificate, Exh.53 in

relation to the driving license of the insured

rickshaw driver, and has overlooked the

provisions of law. Further, the ground raised is

to the effect that on the date of accident i.e.

on 30.05.2012, there was no valid permit and the

transport passenger rickshaw was plying on the

public place without any permit, which has been

affirmed by the R.T.O. Certificate, Exh.68

supported by the oral evidence of the R.T.O.

officer, Exh.66.

3. Mr. Maulik J.Shelat, learned advocate

for the appellant submitted that the factum of no

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permit, on the date of accident, was raised

before the Tribunal and was also proved. A

witness from R.T.O. office, Alpesh Khimjibhai

Devra was examined at Exh.68, who had deposed

that the Rickshaw No.GJ-10-W-394, was not holding

transport permit from 12.10.2012 to 11.10.2017,

and has further deposed that involved auto

rickshaw was transferred in the name of Hanifsha

Valisha Shekh - opponent no.1, driver-cum-owner,

on 28.03.2012, where the accident took place on

30.05.2012.

3.1 Advocate Mr. Shelat relying on the

judgment of Amrit Paul Singh & Anr. Vs. Tata AIG

General Insurance Company Ltd. & Ors., reported

in AIR 2018 SC 2662, submitted that it is a

bounden duty of the owner of the vehicle to prove

by way of leading material evidence on record

that he was holding permit on the date of

accident. Mr. Shelat submitted that the Tribunal

in the impugned matter has gone by way of

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assumption and such assumption is only on the

basis of cross-examination of the R.T.O., who has

stated that when the vehicle gets transfer,

necessary permit, R.C. Book, Insurance Policy,

Fitness Certificates are verified, and thereafter

as per rules vehicle gets transferred.

3.2 Advocate Mr. Shelat submitted that on

the date of transfer whether the owner was

holding a valid permit is for him to prove, since

the assumption cannot be made only on the basis

of rules and procedures admitted by the R.T.O.

Officer, when the document is on record that the

auto rickshaw no.GJ-10-W-394 was holding

transport permit from 12.10.2012 to 11.10.2017,

thus, the said permit, so issued is only after a

period of five months from the date of accident;

thus, that fact itself could lead to an inference

that on 30.05.2012, there was no valid permit.

4. Advocate Mr. Nabil Bolch for Advocate

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Mr. Ashok H. Trivedi for the respondent no.1,

submitted that the grounds which has been raised

are between the owner of the vehicle and the

Insurance Company. The Tribunal has permitted the

claimant to recover the amount from opponents. He

stated that the Insurance Company has already

deposited the money, and, thus, urged for

disbursement of the amount.

5. Heard Mr. Maulik J. Shelat, learned

advocate for the appellant and Advocate Mr. Nabil

Bolch for Advocate Mr. Ashok H. Trivedi for the

respondent no.1. The compensation amount has been

granted of Rs.1,40,800/- to the claimant, which

is under challenge. The owner and driver of auto

rickshaw is opponent no.1. The Tribunal has

observed that opponents have been duly served

with notice. Here, in the present appeal too, the

respondent no.2 has been served, but he has not

preferred to appear before this Court.

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6. The facts of the case suggests that on

30.05.2012 at about 8:00 a.m., when applicant was

at Kalavad from village Mota Panchdevda for

purchasing medicine, and while she was crossing

the road to go to clinic of Doctor Joshi, which

is nearby to S.T. Depot, Kalavad, the driver of

auto rickshaw bearing No.GJ-10-W-394, came in

excessive speed and in rash and negligent manner

and dashed her; as a result, she sustained severe

injuries. The claimant was taken to Civil

Hospital Kalavad for primary treatment, and

thereafter at the hospital of Doctor Chovatiya,

and subsequently to the hospital of Doctor Vora,

where she was admitted from 31.05.2012 to

06.06.2012. The complaint was lodged against the

driver of auto Rickshaw at Kalawad Police

Station.

7. The learned Tribunal while considering

the negligence aspect has taken into

consideration the F.I.R. and panchnama produced

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at Exh.35 and 36, which revealed that the auto

rickshaw no.GJ-10-W-394 was involved in the

accident, and the learned Tribunal was of the

opinion that, had the driver taken care in

driving, then the entire accident could have been

avoided; thus, the Tribunal considered sole

negligence of the driver of the auto rickshaw.

7.1 While dealing with the liability aspect,

the learned Tribunal had considered the affidavit

filed by the Assistant Manager of Insurance

Company at Exh.64, certificate vide Exh.53 of the

R.T.O. regarding the driving license of the

driver of auto rickshaw, and had observed that

the license was not for transport vehicle. The

R.T.O. witness Harish Bholabhai deposed vide

Exh.52 that the driver of the said auto rickshaw

was holding non-transport auto rickshaw driving

license at the time of accident, where in the

cross-examination at page-2, he had admitted that

the driver had come driving transport auto

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rickshaw and it has been noted that at the time

of the accident, auto rickshaw was driven without

passenger.

8. The Insurance Company had contended

before the Tribunal that the auto rickshaw was

not having transport permit at the time of

accident for which R.T.O. witness Alpesh

Khimjibhai Devra had been examined at Exh.66, and

he had deposed that the auto rickshaw no.GJ-10-W-

394 was holding the transport permit from

12.10.2012 to 11.10.2017. Admittedly the vehicle

was on the road on 30.05.2012.

9. Section 66 of the M.V. Act, is regarding

the provision for necessity of permits, and the

section, thus, clarifies that no owner of a motor

vehicle shall use or permit the use of the

vehicle as transport vehicle in any place whether

or not such vehicle is actually carrying any

passengers or goods except in accordance with the

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condition of a permit granted or countersigned by

a Regional or State Transport Authority or any

prescribed authority authorizing him the use of

the vehicle in that place in the manner in which

the vehicle is being used. Thus, the section

makes it clear that even if there is no passenger

in the vehicle, the transport vehicle cannot be

plied on the road without any valid permit, and

the authorization of the permit by the Regional

Officer or the State Transport Authority has to

be proved by owner himself.

10. The learned Tribunal has erred in

assuming the issuance of permit, where actually

that fact was required to be proved by the owner

of the vehicle. The R.T.O. Officer was examined,

who deposed that the rickshaw driver was holding

the permit only from 12.10.2012 to 11.10.2017.

This reasoning is supported by the observation in

Amrit Paul Singh & Anr. case, wherein the Hon'ble

Supreme Court has observed that exception to the

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necessity for permit section 66 are to be pleaded

and proved. It was observed that, it cannot be

taken aid for seeking absolution from liability;

use of vehicle in the public place without a

permit is a fundamental statutory infraction,

where after observing the judgment of National

Insurance Co. Ltd v. Swaran Singh and others,

reported in AIR 2004 SC 1531, and Lakshmi Chand

Vs. Reliance General Insurance, reported in AIR

2016 SC 315, the Hon'ble Apex Court was of the

view that the principles laid down in both the

judgments would not be applicable, where the

insurance company had taken the plea that the

vehicle in question had no permit, and nothing

had been brought on record by the insured to

prove that he had a permit of the vehicle, and,

in that situation, the Apex Court has laid down

that the onus cannot be cast on the insurer, and,

therefore the Tribunal as well as the High Court,

directed the insurer to pay the compensation

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amount to the claimants with interest with the

stipulation that insurer shall be entitled to

recover the same from the owner and driver, and

the said directions were in consonance with the

principles stated in Swaran Singh & Ors. case

appeartaiining to pay and recover principle.

11. In the present impugned matter, the

learned Tribunal has erred in not considering the

provision of section 66 of the M.V. Act, where it

is explicitly provided that even in case, where

the transport vehicle are plied on the road

without any passenger, mandatory requirement of

the permit of transport vehicle cannot merely be

assumed, where the same has to be specifically

proved by the owner by leading evidence that he

had been authorized by R.T.O. Officer to ply the

vehicle on road, and he had valid permit on the

date of accident.

12.            In       the       result,           following                   the





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observations of Amrit Paul Singh & Anr. Vs. Tata

AIG General Insurance Company Ltd. & Ors., the

operative part of the order of Tribunal requires

modification.

13. Since Rs.1,40,800/- has been ordered to

be paid to the claimant at the rate of 9%

interest from the date of the claim petition till

realization from the opponent, and as submitted

by Advocate Mr. Shelat for the Insurance Company

that the amount as per award has already been

deposited by the Insurance Company and when the

Insurance Company cannot be fastened with the