Gujarat High Court
Hdfc Ergo General Insurance Co Ltd vs Nanjibhai Khanabhai Makwana on 27 June, 2024
NEUTRAL CITATION
C/FA/4641/2019 ORDER DATED: 27/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4641 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 4641 of 2019
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 1 of 2020
In R/FIRST APPEAL NO. 4641 of 2019
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HDFC ERGO GENERAL INSURANCE CO LTD
Versus
NANJIBHAI KHANABHAI MAKWANA & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR CHIRAG B AYDI(13146) for the Defendant(s) No. 5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR. MAULIK M SONI(7249) for the Defendant(s) No. 5
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/06/2024
ORAL ORDER
ORDER IN CIVIL APPLICATION (FOR PRODUCTION OF
ADDITIONAL EVIDENCES) NO. 1 of 2020:
1. Heard learned advocates for the parties.
2. By way of this application for production of additional
evidence, the copy of the extract of driving licence of one
Rajkishor Shah S/o Janak Shah is sought to be produced. In
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that licence the endorsement is that Transport Vehicle
M/HMV Regid chassis goods W.E.F. 25/05/2000.
3. Considering the averments made in the application and
considering the submissions made at the bar by the rival
parties, it transpires that the issue involved in the present
appeal is regarding that the driving licence was not in
existence on the date of accident. The accident has occurred
on 10.03.2013 and it is the say of the present applicant that
the driving licence was taken with starting date of
12.03.2013, therefore, the Insurance Company could not have
been saddled with the liability to pay the amount.
4. Considering the aforesaid aspects and considering the
fact that the requirement under the provisions of Order 41
Rule 27 of the Civil Procedure Code, 1908, is satisfied. In
the facts and circumstance of the present case and in the
interest of justice, the permission to produce such document
is required to be granted.
5. Hence, prayer made in para 6(b) of the present
application is allowed.
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ORDER IN FIRST APPEAL NO.4641 of 2019:
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
opponent No.5, being aggrieved and dissatisfied with the
impugned judgment and award dated 03.12.2018 passed by
the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad
in Motor Accident Claim Petition No.656 of 2013.
2. Brief facts of the case are as under:
2.1 On 10/03/2013, deceased was going as pillion rider on
motorcycle. When motorcycle reached near spot of accident, at
that time Truck insured by appellant collided with
motorcycle. Hence the accident occurred. As a result thereof,
the deceased received fatal injuries. The claimant is legal
heirs of deceased and he has filed the present claim petition.
2.2 Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
appeal has been preferred before this Court.
3. Heard learned advocate Mr. Rathin P. Raval for the
appellant and learned advocate Mr. G.C.Mazmudar for the
respondent No.3 - Insurance Company and learned advocate
Mr. Nishit Bhalodi for the respondent No.1.
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4. Learned advocate Mr. Rathin Raval has submitted that
it is undisputed fact that the on the date of accident i.e.
10.03.2013, the licence which is now on record, was not in
existence. He has further submitted that the concerned
tribunal has not considered this aspect in proper perspective
as though the Insurance Company has pleaded in the written
statement about such contention but has not led any evidence
to prove their defence in accordance with law. He has
submitted that the tribunal has committed error in coming to
the conclusion that the original opponent Nos.3, 4 and 5 are
jointly and severally liable. He has further submitted that, at
present, he is not praying any relief against the original
opponent Nos.1 and 2 who were exonerated by the tribunal.
He has submitted that in view of the judgment of Division
Bench of this Court in the case of National Insurance Co.
Ltd. Vs. Smitaben WD/O Bhogilal Jiagjivandas Gadhia and
Ors. rendered in First Appeal No.2214 of 1999, more
particularly relying on Para 7 of that judgment, at least
order for pay and recover can be passed in the present case,
by directing the appellant - Insurance Company to pay and
recover from the owner of the vehicle. He has therefore
submitted that appropriate order may be passed considering
the observations made by the Division Bench of this Court.
4.1 He has further submitted that the question being a
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pure question of law, it can be agitated at the stage of
appeal also, and therefore, he prays to allow the present
appeal by granting suitable relief in the facts and
circumstance of the present case. He has not raised any
other contention on any other issue, more particularly, when
the aspect of quantum is concerned.
5. Learned advocate Mr. Mazmudar has submitted that the
original opponent Nos.1 and 2 in the claim petition were
already exonerated and if that order continues without any
fastening liability on original opponent Nos.1 and 2, he has
no objection if submission made by learned advocate Mr.
Raval for the appellant is accepted, by passing the order of
pay and recover, the amount should be paid by the appellant
- Insurance Company and thereafter, such amount can be
recovered by the vehicle insured by the appellant - Insurance
Company, original opponent Nos.3 and 4 in the claim
petition. He has submitted that otherwise, the findings of the
tribunal is just and proper, which is based on the evidence
available on the record and therefore, no interference is
called for by this Court.
6. Learned advocate Mr. Bhalodi has submitted that the
tribunal has not committed any error in passing the
impugned judgment and award. He has further submitted
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that the Hon'ble Apex Court in the case of Kempaiah Vs.
S.S. Murthy reported in 2018 (12) SCC 706 has made certain
observations, more particularly, in paras 10 to 12 of that
judgment, regarding the issue of existence of driving licence
of the driver of the offending vehicle on the date of accident.
He has submitted that considering the said judgment,
suitable directions may be granted without disturbing any
other part of the impugned judgment and award and
therefore, he has submitted that appeal is required to be
dismissed, however, Court may pass appropriate order after
considering the submissions made at the bar.
7. I have considered the rival submissions made at the
bar. It is not in dispute that the accident has taken place on
10.03.2013, the Insurance Company could not produce the
driving licence, but thereafter, after tribunal has passed the
order, insurance company could have obtained the copy of the
driving licence, whereby, it is found that the driving licence
was taken with starting date of 12.03.2013 and accident has
occurred on 10.03.2013. Even from perusal of written
statement filed by the Insurance Company, it transpires that
the insurance company has taken stand to this extent that
the licence of the driver of the Truck was not in existence
on the date of accident, however, insurance company has not
made any effort to prove the case thereafter by examining
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any witness from the concerned RTO or producing the
documentary evidence. Therefore, considering the judgment of
the Division Bench of this Court in the case of National
Insurance Co. Ltd. Vs. Smitaben WD/O Bhogilal Jiagjivandas
Gadhia and Ors. rendered in First Appeal No.2214 of 1999,
more particularly, relevant paras 7 to 9 are reproduced as
under:
"7. We are conscious that such a pointed ground was not raised
by the Insurance Company before the Tribunal either in the
defence statement or in any other manner during the course of
hearing of the claim petition. However, from the facts on record,
we find that the question presented before us is a pure question
of law and therefore can be allowed to be raised for the first
time at the appellate stage.
8. Counsel for the appellant Insurance Company taking us
through the insurance policy submitted that the policy taken by
the State Government, owner of the vehicle, was an Act policy
and contained no further liability to cover any further risk on
the Insurance Company. It was pointed out that the policy
covered liability to third parties. Our attention was drawn to the
general exceptions which, inter alia, provided that the Insurance
Company shall not be liable in respect of any claim arising out
of any contractual liability and further that the same would also
not include any liability except so far as it was necessary to
meet the requirements of the Motor Vehicles Act. The exception
also apply in case of death arising out of and in course of
employment of a person in the employment of the insured.
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9. Our attention was drawn to the provisions contained in section
147 of the Act to contend that in terms of proviso to sub-section
(1) of section 147, statutory liability of the Insurance Company
would not cover any liability in respect of death or bodily injury
sustained by an employee arising out of and in course of the
employment other than one arising under the Workmen
Compensation Act, 1923."
7.1 The Division Bench has observed in the said judgment
that contention regarding the pure question of law can be
also raised at the stage of first appeal. In the present case,
though the present appellant has not taken the detailed
contention and has failed to prove its case by leading
evidence, but, in written statement, the contention is taken
regarding the non-existence of driving licence.
7.2 The judgment of the Hon'ble Apex Court in the case of
Kempaiah (supra), relevant paras 10 to 12 are reproduced as
under:
"10. Insofar as the liability of the insurer is concerned, we have
noticed the evidence of RW-1 Mumtaz Sheerin (Annexure-P4), who
at the relevant point of time was an administrative officer of the
respondent-Insurer. The relevant part of the evidence of the said
witness on the point of the driving licence of the driver of the
offending transport vehicle is as follows :
"I submit that accused driver had licence to drive non transport
vehicles upto 29.07.2018. But, his licence to drive transport
vehicle expired on 26.09.2007. The same was renewed on
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23.09.2008. There was no valid licence to drive transport vehicle
on 10.09.2008, the date of accident."
11. In National Insurance Co. Ltd. v. Swaran Singh1, this Court
has, inter alia, observed as follows:
"(iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving licence of the driver, as contained in
sub-section (2)(a)(ii) of Section 149, has to be proved to have
been committed by the insured for avoiding liability by the
insurer. Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant time, are
not in themselves defences available to the insurer against either
the insured or the third parties. To avoid its liability towards
the insured, the insurer has to prove that the insured was guilty
of negligence and failed to exercise reasonable care in the matter
of fulfilling the condition of the policy regarding use of vehicles
by a duly licensed driver or one who was not disqualified to
drive at the relevant time." [Para 110(iii)]
12. In paragraph 110(viii) of the report in Swaran Singh (supra),
it has been also held that the same would be the position in
case the driver of the offending vehicle had a learner's licence.
The ratio of the law laid down by this Court in Swaran Singh
(supra) is in consonance with the object behind the enactment of
the Motor Vehicle Act, 1988. Taking into account the same and
the decision of this Court in Swaran Singh (supra), we are of
the view that in the facts of the present case the insurer-
respondent No. 2 (Oriental Insurance Company Ltd.) should be
directed to satisfy the award as enhanced by us and thereafter
would be at liberty to recover the said amount from the owner
of the lorry (transport vehicle). In doing so we have also taken
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note of the fact that the respondent No. 1 (S.S. Murthy), the
owner of the vehicle, despite service of notice has chosen not to
appear before this Court."
7.3 Considering the fact that, now, pursuant to the order
passed in the connected Civil Application for production of
additional evidence, the driving licence of the driver of the
Truck is available on the record. On perusal of such licence,
it transpires that the starting date of licence is 12.03.2013
and the accident has occurred on 10.03.2013, and therefore,
on the date of accident, the driving licence was not in
existence. However, the insurance company has failed to
discharge its burden before the tribunal by producing the
copy of licence or by leading proper evidence by examining
the RTO or any person who could throw some light about
the existence of the driving licence. But, now the fact
remains that on the date of accident, the driving licence was
not in existence and it is also undisputed that the insurance
company has taken insurance of the Truck, the insurance
company cannot shrug away its liability to pay the amount
of compensation as the vehicle is insured by the insurance
company. However, in the facts and circumstances of the
present case, at the time of accident, it is now coming on
record that the driving licence was not in existence and
therefore, breach of condition of the insurance policy is found
and therefore, in the facts and circumstances of the present
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case, it is appropriate to direct the insurance company to pay
the entire awarded amount to the claimant/s and thereafter,
it is open for the insurance company to recover the amount
from the owner of the Truck - Pradipmal Fakirbhai Patel.
7.4 Therefore, taking recourse of the principle of "Pay and
Recover", it is directed that the insurance company shall pay
the entire awarded amount with cost and interest to the
claimant/s and thereafter, it is open for the Insurance
Company to recover the amount from the owner of the Truck
- Pradipmal Fakirbhai Patel.
8. With above directions, the impugned judgment and
award is modified to the aforesaid extent without any further
modification in the impugned judgment and award. The
present appeal is partly allowed to the aforesaid extent with
no order as to costs.
9. The amount deposited by the insurance company which
is lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, shall be paid to the claimant/s by
way of account payee cheque or by way of RTGS within a
period of four weeks from today, after due verification by the
tribunal.
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10. Accordingly, the present appeal is disposed of.
11. In view of the order passed in the First Appeal,
connected Civil Application (For Stay) No.1 of 2019 does not
survive and the same stands disposed of accordingly.
(SANDEEP N. BHATT,J)
SLOCK BAROT
