National Insurance Company ... vs Patel Maganhbai Keshubhai Devda
2023 Latest Caselaw 7355 Guj

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     C/FA/3653/2010                               JUDGMENT DATED: 05/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3653 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA
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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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    NATIONAL INSURANCE COMPANY LIMITED THROUGH AUTHORISED
                           SIGNAT
                            Versus
          PATEL MAGANHBAI KESHUBHAI DEVDA & 1 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR DIPAK H SINDHI(5710) for the Defendant(s) No. 2
MR HRIDAY BUCH(2372) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 05/10/2023

                             ORAL JUDGMENT

1. This appeal is filed under section 173 of the Motor Vehicles Act,

1988 by the National Insurance Company Limited, assailing the judgement and award dated 28.04.2010, in Claim Petition No.91 of 2004, passed by the Claim Tribunal, Morbi by which the Tribunal,

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C/FA/3653/2010 JUDGMENT DATED: 05/10/2023

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holding liable the Insurance Company to pay the amount of compensation and awarded the sum of amount Rs.2,90,000/- with interest at the rate of 7.5% per annum.

2. The facts in brief are that on 03.04.2004 the respondent original

claimant upon riding Hero Honda bike was going from Morbi to Mitana and while reaching at the place of accident the rickshaw in question came from opposite direction being driven by its driver in a rash and negligent manner and given a dash to the bike as a result the claimant sustained multiple fracture injuries resulting into permanent partial disablement. Initially, FIR was being filed against unknown Chhakdo rickshaw and later on, the involvement of the rickshaw was found by the police and accordingly, the driver of the rickshaw came to be chargesheeted. The claimant sought compensation by preferring Claim Petition before the Tribunal at Morbi joining the owner and insurance company of the vehicle. The learned Tribunal, after considering the evidence on record, vide its judgement and award dated 30.04.2010 did not consider the defence of the Insurance Company and the company was held liable to pay the amount of compensation.

3. Being aggrieved with the judgement and award, the appellant

Insurance is before this Court.

4. Mr. Maulik Shelat, learned counsel appearing for the insurance

company, has contended that the Tribunal materially erred in not exonerating the insurance company from its liability to pay compensation as the driver of the loading rickshaw was not holding valid and effective driving licence to drive the transport vehicle as there was no endorsement to that effect was made on the license by

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the authority concerned. Before the Tribunal, by examining, the officer of the Regional Transport Office (Natwar Thakersinh) Exh.59 and the copy of the licence Exh.60, the appellant insurance company has discharged their onus to prove that the vehicle in question was transport vehicle and driver did not possess valid licence to drive the vehicle. In such circumstances, Mr.Shelat submitted that the learned Tribunal failed to appreciate the said facts and overlooked the evidence and fastened the liability of the insurance company, which findings are not sustainable in law and deserves to be set aside.

5. In view of the aforesaid contention, Mr. Shelat prays that the

insurance company may be exonerated from its liability to pay the amount of compensation as the insurance company succeeds in establishing the fact that the insured has violated the terms and conditions of the policy and in the alternate, the insurance company may be permitted to recover the amount from the owner of the vehicle.

6. On the other hand, Mr.Nishant Lalakia, learned counsel appearing

for the original claimant has contended that the claimant being a third party, is entitled to recover the amount from the insurance company and, therefore, the learned tribunal, has rightly fastened the liability on the insurance company to pay the amount of compensation.

7. Having heard the learned counsel for the respective parties and on

perusal of the material placed on record, the issue, which falls for my determination is as to whether the insurance company can disown its liability on the ground that the driver although duly

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licence to drive LMV vehicle but there was no endorsement in the licence to drive commercial vehicle.

8. This appeal is filed on two grounds, first, on the issue of

negligence as the Tribunal did not appreciate that the accident in question was the result of negligence on the part of both the drivers and despite of these facts, the driver of the loading rickshaw was held negligent. On this issue, the learned Tribunal, after considering the oral evidence of the injured claimant and material and documentary evidence, came to the conclusion that the injured evidence is believable on the aspect of allegation of negligence being against the rickshaw driver. The Tribunal while, holding the rickshaw driver negligent, raising the adverse inference against him held that if he could have examined, then he may throw light on the issue of negligence and substantiate the allegation of negligence made by the claimant. Thus, therefore, in absence of evidence of the rickshaw driver, the Tribunal, based on the available evidence on record, determine the issue of negligence against the driver of the rickshaw. In such circumstances, this Court does not find any perversity or arbitrariness in the findings recorded by the Tribunal and the same do not warrant any interference.

9. So far as, defence of driving licnece as raised above is concerned,

the issue is not res integra. The claimant injured is the third party so far as opposite vehicle is concerned. It is beneficial to refer the judgement of the Apex Court in the case of National Insurance Co. Ltd. vs Swaran Singh and others, (AIR 2004 SC 1531), wherein thethe Apex Court categorically held that mere absence, fake or

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invalid DL for driving at relevant time are not themselves defence available to the Insurance Companies against the third parties. It was further observed that to avoid the liability towards the insured, the Insurance Company has to prove that the owner, insured was guilty of negligence and failed to exercise reasonable care in the matter fulfilling the condition of the policy regarding use of vehicle by duly licence. In the case of Mukund Dewangan vs. Oriental Ins. Co.Ltd., (2017 ACJ 2011), the Apex Court held that the LMV as defined would include a class of transport vehicle as per the weight prescribed in section 2 (21) of the Act and, therefore, no separate endorsement on the licence is required to drive a transport vehicle.

10. In light of the settled position of law, and considering the peculiar

facts and circumstances of the present case, the insurer appellant failed to establish the fact that the 'breach' was committed by the insured. Unless and until the breach is not established, the insurance company cannot escape from its liability to pay the amount of compensation. Thus, therefore, merely, adducing the evidence of RTO, is not sufficient to establish the breach of the policy condition as nothing brought on record to show that the insured was having knowledge about the licence possessed by the driver and despite of this, he permitted the driver to drive the vehicle. Thus, the present appeal fails on two counts, one is onus having not been discharged by the Insurance company that there was a breach of policy condition by the insured and as per the judgement of the Apex Court in Mukund Dewangan (supra) the unladen weight of the vehicle exceeds 7,500 kgs. and in that view of the matter, no separate endorsement on the licence is required to

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drive the transport vehicle of light motor vehicle class.

11. For the reasons recorded, the present appeal is failed and dismissed

accordingly. R & P be immediately sent to the Tribunal. The Tribunal shall disburse the entire amount with accruing interest if any to the claimant herein. Decree be drawn accordingly.

(ILESH J. VORA,J) SUDHIR