Gujarat High Court
Icici Lombard General Insurance ... vs Ramjibhai Khetabhai Aal on 26 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/3135/2011 JUDGMENT DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3135 of 2011
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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ICICI LOMBARD GENERAL INSURANCE CO. LTD
Versus
RAMJIBHAI KHETABHAI AAL & 1 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2
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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 ICICI Lombard General Insurance Company Limited,
assailing the judgement and award dated 08.07.2011 in Claim
Petition No.52 of 2009, passed by the Claim Tribunal at Morbi,
Rajkot.
2. On 13.12.2008, the respondent claimant Kanji Gadhiya met with
NEUTRAL CITATION
C/FA/3135/2011 JUDGMENT DATED: 26/09/2023
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an accident as the rickshaw in which he was travelling along with
his goods, turned turtle on account of negligence of the driver. The
Claim Tribunal, after considering the evidence adduced by the
claimant awarded a sum of Rs. 94,200/- towards the total amount
of compensation.
3. The Insurance Company-appellant aggrieved with the said
judgement and award has preferred the present appeal on the
ground that the Tribunal, has erroneously fastened the liability of
the Insurance Company, despite the evidence that the driver of the
rickshaw was not having a valid and effective licence to drive the
vehicle.
4. Mr. Vibhuti Nanavati, learned counsel appearing for and on behalf
of the Insurance Company has submitted that the judgement and
award is against the evidence and settled position of law. The
sitting capacity of the vehicle as per the R.C. Book only one person
and therefore, the risk of the claimant, as a third party, is not
covered either statutorily or contractually. He further submitted
that the licence possessed by the driver of the vehicle was to drive
non-transferred vehicle and, therefore, there is violation of the
provision of section 14 of the MV Act, 1988 and, Rule 18 of the
Gujarat Motor Vehicles Rules, 1989.
5. In the aforesaid contention, the learned counsel Mr. Nanavati
submitted that the impugned judgement and award has been passed
contrary to the statutory provisions, so far as liability to pay the
amount is concerned and, therefore, the Insurance Company may
be exonerated from its liability.
6. Though served, none appears for the respondents herein.
7. Having heard the learned counsel for the appellant Insurance
Company, the issue arise is as to whether the Tribunal is justified
in passing the judgement and award, directing the Insurance
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C/FA/3135/2011 JUDGMENT DATED: 26/09/2023
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Company to pay the amount of compensation.
8. The factum of accident, quantum and involvement of the vehicle
are not in dispute.
9. Before the Tribunal, the Insurance Company neither led oral
evidence or produced the documentary evidence to establish that
the claimant was travelling in the rickshaw without goods. Thus,
therefore, it is evident that the claimant was travelling in the
rickshaw along with the goods as pleaded in the petition. IN such
circumstances, when the person is travelling in the rickshaw along
with the goods, the Insurance Company shall be statutorily liable to
pay the amount of compensation.
10. So far as the issue of driving licence is concerned, the respondent
claimant being a passenger of the rickshaw is treated to be third
party. 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.
11. 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
NEUTRAL CITATION
C/FA/3135/2011 JUDGMENT DATED: 26/09/2023
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learned Tribunal has not committed, any error while fastening the
liability on the appellate Insurance Company.
12. For the reasons recorded, considering the smallness of the amount
and the compliance of the statutory provision, the appeal deserves
to be dismissed and accordingly it stands dismissed. Decree to be
drawn accordingly.
(ILESH J. VORA,J)
SUDHIR
