Gujarat High Court
New India Assurance Co Ltd, ... vs Sangeetaben Somiyal Vasava on 26 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/5049/2010 JUDGMENT DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5049 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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NEW INDIA ASSURANCE CO LTD, REGISTERED OFFICE 87, MAHATMA
Versus
SANGEETABEN SOMIYAL VASAVA & 6 other(s)
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR NV GANDHI(1693) for the Defendant(s) No. 6,7
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 26/09/2023
ORAL JUDGMENT
1. This appeal is filed under section 173 of the Motor Vehicles Act,
1988 by the New India Assurance Company Limited, assailing the
judgement and award dated 14.10.2009, in Claim Petition No.23 of
2007, passed by the Claim Tribunal, Vyara at Surat by which the
Tribunal overruling the objection of the defence of driving licence
NEUTRAL CITATION
C/FA/5049/2010 JUDGMENT DATED: 26/09/2023
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awarded the amount of compensation in favour of respondent
original claimants.
2. On 19.10.2006 deceased Somiyal aged about 24 years met with an
accident when his rickshaw, wherein he was travelling was
overturned. The widow and minor children had filed Claim
Petition, claiming compensation of Rs.7,00,000/- against the
owner and Insurance Company of the offending rickshaw. The
Claim Tribunal vide its judgement and order dated 14.10.2009,
passed an award of Rs.5,76,000/-, with interest.
3. The appellant Insurance Company being aggrieved with the
findings on the issue of liability, has preferred the present appeal.
4. Mr. Sunil Parikh, learned counsel appearing for and on behalf of
the Insurance Company, disputed the findings, fastening of the
liability of the Insurance Company. He submitted that the driver of
the rickshaw did not possess the valid licence as in the licence
issued by the authority, no endorsement was found to drive a
commercial vehicle and, therefore, there is a violation of the terms
of the policy and Insurance Company cannot be held liable to pay
the amount of compensation.
5. On the other hand, Mr. Hiren Modi, learned counsel appearing for
the original claimant supported the findings on the issue of liability
and submitted that the deceased was third party and, therefore, so
far as third party is concerned, the Insurance Company cannot
escape from its liability to pay the amount of compensation. He
would further submit that the sufficient reasons, fastening the
liability of the Insurance Company assigned by the Tribunal and,
therefore, the Tribunal has not committed any error while directing
the Insurance Company to pay the amount of compensation for and
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C/FA/5049/2010 JUDGMENT DATED: 26/09/2023
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on behalf of the owner of the vehicle.
6. Having heard the learned counsel for the respective parties, and on
perusal of the records, the issue arise for determination is as to
whether the driver of the vehicle did not possess a valid licence and
Insurance Company is exempted from liability.
7. On the very limited issue, this appeal is filed by the Insurance
Company. The driver of the rickshaw was having the driving
licence to drive LMV vehicle. The deceased was travelling in the
rickshaw and considering the policy conditions, he would fall
under the term, " third party". On the issue of driving licence the
Apex Court in the case of National Insurance Co.Ltd vs. Swaran
Singh and others, AIR 2004 SC 1531, the Apex Court categorically
held that mere absence, fake or 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
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.
8. In light of the settled position of law, and considering the peculiar
facts and circumstances of the present case, the issue of liability as
raised hereinabove having not been proved and established and the
learned Tribunal has not committed, any error while fastening the
liability on the appellate Insurance Company.
9. For the reasons recorded, the present appeal is failed and dismissed
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C/FA/5049/2010 JUDGMENT DATED: 26/09/2023
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accordingly. Decree be drawn accordingly.
(ILESH J. VORA,J)
SUDHIR
