Gujarat High Court

Hdfc Ergo General Insurance Company Ltd vs Vakhli @ Vakhiben Ramanbhai Rathva on 1 December, 2023

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     C/FA/2837/2019                               ORDER DATED: 01/12/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2837 of 2019

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           HDFC ERGO GENERAL INSURANCE COMPANY LTD
                             Versus
              VAKHLI @ VAKHIBEN RAMANBHAI RATHVA
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 2,3
ADVOCATE NOTICE SERVED for the Defendant(s) No. 2,3
CHETANKUMAR K SHAH(7364) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                              Date : 01/12/2023

                               ORAL ORDER

1. This appeal is filed under Section 173 of the Motor Vehicles

Act at the instance of Insurance Co. challenging the judgment and

award dated 06.12.2019 passed by the Motor Accident Claims

Tribunal (Auxi.), Panchmahal at Halol in MACP No.2061 of 2017

(Old MACP No. 465 of 2013). By the said judgment and award, the

Tribunal has partly allowed the claim petition preferred by the

present respondent No.1 under Section 166 of the Motor Vehicles

Act, whereby awarded compensation of an amount of Rs.93,360/-

together with interest @ 8% p.a. from the date of filing of the claim

petition till its realization as well as with proportionate costs. The

original opponents including present appellant are directed to be

held jointly and severally liable and are directed to deposit the said

amount of compensation with the Tribunal. The Tribunal has also

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further permitted the claimant for withdrawal of 30% of such

amount, which is permitted to be in cash through A/c. Payee

Cheque and remaining 70% amount is directed to be invested in

any nationalized bank in the Fixed Deposit Receipt for a period of

5 years. The original claimant is permitted to receive periodical

interest accrued thereon.

2. In the original claim petition, it is contended by the claimant

that on 16.10.2012 at around 3 hours, in afternoon, while she was

traveling with one co-passengers in Rickshaw Chhakdo bearing

registration No. GJ-17U-4739 from Ghoghamba to Virpura,

because of the rash and negligent driving of the respondent No.2 -

original opponent No.1 driver lost his control over the vehicle,

which resulted in the accident. It is further contended that because

of the vehicle having turned turtle, the original claimant sustained

grievous injuries along with fracture. It is further contended that

she was immediately admitted in a private Orthopedic hospital at

Halol, where she had been treated for a long duration. It is further

contended that because of aforesaid injuries, she sustained

permanent partial disability and had spent huge amounts towards

medical treatment, medicines, transportation, attendant expenses,

special diet etc. The original claimant has raised the claim for an

amount of Rs.2,50,000/- towards such compensation under

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various heads, which came to be registered as MACP No.2061 of

2017 (Old MACP No.465 of 2013) before MACT, Panchamahals at

Halol.

3. In the aforesaid claim petition, the driver - Rohitkumar

Hasmukhbhai Parmar of the offending vehicle was joined as

opponent No.1 and Dineshbhai Chandubhai Rathwa as owner of

the said offending vehicle. At the time of accident, the said vehicle

was insured with HDFC Ergo General Insurance Co. Ltd. and was

joined as opponent No.3 in the said claim petition.

3.1 The summons were duly served upon the aforesaid

opponent Nos.1 and 2 and had appeared before the Tribunal. The

opponents have contested the claim petition by tendering the

common written statement vide Exhibit 10 thereby denying the

facts alleged in the claim petition. It was contended by the

opponent No.1 driver that there was no negligence in driving the

said vehicle, but in fact in order to save the goat, which suddenly

came into the way, it lost control over the vehicle and the vehicle

turned turtle, which ultimately, resulted into the accident.

3.2 The opponent No.3 Insurance Co. had also contested the

claim petition by submitting a written statement vide Exhibit 17

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denying the fact alleged in the claim petition. The dispute was also

raised with regard to the age of the claimant, income, nature of

occupation as contended and the injuries and negligence issues

were also raised. The Insurance Co. had raised specific defense

and had disputed their liability by contending that on the date of

accident, the opponent No.1 driver was not holding a valid license

and permit. The opponent Insurance Co. had also submitted an

application to the RTO office seeking relevant details, wherein it

had clearly transpired that the opponent Nos.1 and 2 had

committed clear cut breach of terms and conditions of insurance

policy. Hence, the Insurance Co. had specifically raised defense

that they were not liable to pay any compensation to the original

claimant and had urged to exonerate them from the liability.

3.3. The Tribunal, considering the aforesaid submissions made

by the respective parties, proceeded to decide the issues, which

were framed vide Exhibit 15. The Issues framed were as under :

1. Whether it is proved that the claimant sustained injuries on account of rashness or negligence in driving on the part part of the driver of the vehicle involved in the accident?

2. What amount, if any, the claimant is entitled to by way of

compensation and from which of the opponents?

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3. What order and award?

3.4 While deciding the point of negligence, the Tribunal on the

touchstone of preponderance of probability after taking into

consideration the documentary evidence led by the original

claimant, more particularly, the deposition of the claimant (Exhibit

23), spot panchnama (Exhibit 41), charge-sheet counter, which

was brought on record vide Exhibit 43, proceeded to answer the

issue No.1 in affirmative. The Tribunal noticed that the opponent

No.1 being driver of the said offending vehicle had failed to step

into witness box and therefore considering the evidence laid by the

claimant, concluded that the opponent No.1 was negligent in

driving the vehicle.

3.5 While considering the issue of quantum, applying the formula

of multiplier as settled by the Hon'ble Supreme Court in the case

of Sarla Verma Vs. Delhi Transport Corporation and Anr.

reported in 2009(6) SCC 121 and taking into consideration the

various documentary evidence, held the original claimant liable for

the amount of compensation of Rs.93,360/- under the various

heads.








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      C/FA/2837/2019                                 ORDER DATED: 01/12/2023

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                                                          Amounts of
           Sr.                                            compensatio
                       Particulars
           No.                                            n.
                                                          ( Rs.)
           1.          Future loss of income              63,360/-
           2.          Pain, shock and suffering          15,000/-
                       Expenses of medicines, medical
           3.                                               3,000/-
                       treatment
           4.          Actual loss of income                 6,000/-
                       Transportation, special diet and
           5.                                                6,000/-
                       attendance charges
                       Total                              93,360/-

3.6    Lastly, the Tribunal has taken into consideration the issue of

liability, as raised by the Insurance Co. reflected in its written

statement (Exhibit 17) and the deposition of the competent officer

(Exhibit 38 ) attached to the Insurance Co., and proceeded to

discard the aforesaid evidence by noticing that the claimant, who

had entered into the witness box on behalf of the Insurance Co.

was not having any personal information regarding the alleged

accident. The Tribunal further noticed that the said witness had

admitted in the cross-examination that he had never inquired about

the status of driving license of the opponent No.1. Thus, the

Tribunal considered the fact that the policy produced on record

vide Exhibit 34 covers the date of accident and therefore, the

claimant being third party, the opponents were held jointly and

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severally liable to pay the award amount of compensation with

interest and proportionate costs.

4. Being aggrieved and dissatisfied with the aforesaid reasons

assigned by the Tribunal, the Insurance Co. has approached this

Court in appeal mainly challenging the judgment impugned on the

ground of issue of liability. Noticing the grounds raised by the

Insurance Co., this Court by order dated 11.07.2019 had issued

Notice for final disposal. While issuing the Notice by way of interim

relief, this Court had stayed the judgment impugned on condition

of deposit of the entire amount of award with proportionate cost

and interest before the Tribunal. It has transpired that the learned

advocate Mr. P.M. Dave had entered appearance on behalf of the

respondent No.3, the owner of the vehicle, however, in absence of

any Vakalatnama the matter was progressed for hearing. Note was

moved for withdrawal of appearance, which came to be granted by

this Court by order dated 28.08.2020. Though a fresh notice for

final disposal was issued, which has been duly served, the

respondents have chosen not to contest the present appeal.

5. Mr. Maulik Shelat, learned advocate on record, has

submitted before the Court that the award amount was deposited

with the Tribunal and as per direction of the Tribunal, the

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disbursement and investment of the amount of compensation in

favor of the present respondent No.1, the claimant was directed by

this Court as reflected in order dated 28.08.2020. According to the

learned advocate, the amount invested in the Fixed Deposit

Receipt was permitted to be renewed from time to time till disposal

of the first appeal and the Fixed Deposit Receipt is retained by the

Registry of the Tribunal. The matter was taken up for hearing in

absence of respondent Nos.2 and 3 being owner and driver of the

offending vehicle, who in spite of service of notice, have chosen

not to engage any lawyer. Notice issued upon the original claimant

was awaiting confirmation of service of notice.

6. At the outset, the learned advocate for appellant had

appraised the grounds raised in the appeal and has submitted that

the Insurance Co. is in appeal for limited purposes seeking

direction of pay and recovery against the owner of the offending

vehicle. In such circumstances, considering the issue involved, the

matter progressed for final adjudication in absence of the original

claimant. On 08.11.2023, the matter was finally heard and directed

to be notified for order on 10.11.2023.

7. During the course of hearing, the Learned advocate for the

appellant has invited my attention to the reasons assigned by the

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Tribunal, while dealing with the issue of liability. Learned advocate

has submitted that the Tribunal committed serious error by not

deciding the issue of driving license though specifically raised and

proved by the appellant Insurance Co. It was submitted that the

driver of the offending vehicle was not holding license as on date

of the accident. According to him, the license expired on

12.04.2012. Copy of deposition of the legal assistance Mr. Tejas

Jashwantbhai Shah, who has been examined as witness by the

appellant - Insurance Co. has been placed on record to contend

that the appellant had raised specific defense about the license

and lack of permit. While contradicting the observations of the

Tribunal, learned advocate has placed reliance upon certificate

issued by the RTO Office, which has been placed on record vide

Exhibit 37. It was submitted that admission of the aforesaid

witness in cross-examination about no details with regard to

holding of license or permit being sought for from the owner of the

vehicle, bears no significance in light of aforesaid documentary

evidence Exhibit 37, wherein it clearly transpires that the owner of

the vehicle was not holding permit as on the date of the accident.

8. Learned advocate has placed reliance upon the judgment of

the Hon'ble Supreme Court in the case of Amrit Paul Singh Vs.

TATA AIG General Insurance Co. Ltd. reported in AIR 2018

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Supreme Court 2662 to submit that use of vehicles in public

places without permit amounts to fundamental statutory infraction.

In such cases, the Insurance Co. cannot be held to pay the

compensation to the claimant. It was further submitted that in fact,

the principle of pay and recovery would be applicable in facts of

the case. He, therefore, urged this Court to modify the direction

issued by the Tribunal with a liberty to the appellant Insurance Co.

to recover the amount paid to the claimant by filing separate

Execution Petition. Reliance was placed on the judgment of the

Coordinate Bench's order dated 01.08.2023 passed in First Appeal

No.219 of 2020 and allied matters, whereby in the similar set of

facts, the appeal preferred by the Insurance Co. was allowed,

whereby the order of Tribunal came to be modified permitting the

recovery of amount of compensation from the owner of the vehicle

by filing Execution Petition in accordance with law. Learned

advocate therefore, submitted to pass a similar order in the

present appeal.

9. Having heard the learned advocate for the Insurance Co.

and having perused the record and proceedings as well as the

judgment and award impugned, the limited question, which arises

for consideration of this Court in the present appeal is the issue of

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liability qua the Insurance Co. Considering the evidence of the

original claimant as well as evidence of the Assistant Legal Officer,

who has been examined as witness by the Insurance Co.,

undoubtedly, the issue of driving license as well as lack of permit

was specifically raised. Copy of the RC Book has been brought on

record vide Exhibit 42, which goes to suggest that the opponent

No.2 was the owner of the offending vehicle as on the date of

accident. Copy of the insurance policy has also been brought on

record vide Exhibit 34, which is issued in the name of opponent

No.2 by the opponent No.3 Insurance Co. Noticing the period of

policy covered, it covers the date of the present accident. Copy of

the driving license of the opponent No.1 has been brought on

record at Mark 19/12. However, the same has not been proved by

the original claimant. As against that, the witness of the Insurance

Co. was cross-examined by the claimant, who has fairly submitted

before the Tribunal that no inquiry was made about holding of

driving license by the driver. In such circumstances, the Tribunal

has proceeded to fix the liability of the opponent No.1 driver by

applying principle of preponderance of probability given benefit of

doubt to the original claimant. So far as the issue of the existence

of the permit is concerned, no reasons have been assigned by the

Tribunal. There has been total negligence and non-application of

mind by the Tribunal on such specific defense raised by the

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Insurance Co. The Tribunal has failed to deal with the

documentary evidence, more particularly, certificate issued by the

RTO office vide Exhibit 37, wherein it has clearly reflected that the

owner of the vehicle did not hold any permit on the date of

accident. In the opinion of this Court, the Insurance Co. has been

successful in rebutting the evidence of the claimant insofar as the

existence of a permit of the offending vehicle is concerned.

10. In light of the aforesaid evidence, the lack of permit as on the

date of accident amounts to fundamental statutory infraction, which

could not be ignored by the Tribunal, more particularly, while issue

of liability of the Insurance Co. is specifically raised. At this stage, it

would be relevant to consider the observations of the Hon'ble

Supreme court in the case of Amrit Paul (Supra), paras 22 and 23.

"22. The Court held that when the intention of the legislature is quite clear to the effect that a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there was evidence on record that the respondent No. 2, plied the vehicle without the insurance in violation of the statutory provision contained in Section 146 of the Act, the High Court could not have mulcted the liability on the financier and finally, the financer was absolved of the liability.







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23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had

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directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle."

11. In light of the aforesaid legal position and the evidence

recorded, in the facts of the case, the Insurance Co. has

successfully brought on record the evidence to establish the fact

that the owner of the vehicle had committed breach of the

mandatory requirement of permit of the transport vehicle. It was for

the owner of the vehicle to bring on record some evidence to

dispute the aforesaid material being placed on record by the

Insurance Co.. The existence of a permit for a transport vehicle

could not be assumed. In fact, it was for the owner to prove the

aforesaid fact by leading evidence that he has been authorized by

the RTO to ply the vehicle on the road and he was holding valid

permit on the date of accident. In absence of any contradictory