Gujarat High Court
Iffco Tokio General Insurance Co Ltd vs Bhaguntadevi Munshilal Sisodiya on 10 September, 2024
NEUTRAL CITATION
C/FA/2046/2019 JUDGMENT DATED: 10/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2046 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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IFFCO TOKIO GENERAL INSURANCE CO LTD
Versus
BHAGUNTADEVI MUNSHILAL SISODIYA & ORS.
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Appearance:
MR TANMAY B KARIA(6833) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 4,5
NOTICE UNSERVED for the Defendant(s) No. 1,2,3
REFUSED SERVED (N)(10) for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 10/09/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant - Insurance
Company under Section 173 of the Motor Vehicles Act, being
aggrieved by and dissatisfied with the judgment and award
dated 15.7.2017 passed by the Motor Accident Claims
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Tribunal (Aux.), Gandhidham-Kachchh in Motor Accident
Claim Petition No.163 of 2011, by which, the Tribunal has
partly allowed the claim petition by awarding Rs.4,36,500/-
with 7.5% p.a. interest to be paid to claimant/s, by holding
opponents liable, jointly and severally.
2. The facts of the present appeal are as under :
2.1 The claimants filed the claim petition stating that the
deceased-Rajput @ Gambhir Munshilal was going on 29.4.2011
in the afternoon around twelve o' clock by sitting in chhakdo
rickshaw no.GJ.12X.8424 from Mandvi to Bhuj, at that time,
when he reached near Shiv Paras Mandir, at that time, the
chhakdo turned turtle and the deceased came below the
chhakdo and he died. Therefore, the claim petition is filed by
the claimants for compensation.
2.2 The notices were served to the opponents. Opponent
no.3-insurance company has filed written statement denying
the contents of the claim petition. The issues were framed by
the Tribunal. Oral as well as documentary evidence were led
before the Tribunal. After hearing the submissions made by
the rival parties, the Tribunal has partly allowed the claim
petition(s) and awarded compensation as noted above.
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2.3 Hence, the insurance company has filed the present
appeal before this Court.
3. Learned advocate for the appellant - Insurance
Company has assailed the impugned judgment and award on
the ground that the insurance company should have been
exonerated from paying the compensation as the driver of the
rickshaw No.GJ.12X.8424 was not holding licence at the time
of accident and thus there is breach of the conditions of the
policy; that though the appellant had given by pleading
notice to forward/produce the driving licence of the driver-
respondent no.4 at the time of accident and also discovery
application filed by the appellant company to respondent
nos.4 and 5 to produce and prove the permit and the said
notice was served to the respondent nos.4 and 5-original
owner and driver of the offending rickshaw, they have not
replied to the same nor they have produced the licence and
thus, adverse inference should have been drawn against the
driver that he was not holding driving licence and therefore
should have exonerated the insurance company. He further
submitted that the owner was not holding valid and effective
permit to ply the vehicle on the road and thereby willfully
handed over the vehicle to the driver and thereby also
committed breach of terms and conditions of the policy. He,
therefore, submitted that though the said contentions are
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taken before the learned Tribunal by the appellant, the
learned Tribunal has not considered the same and held the
insurance company liable to pay the compensation. He,
therefore, prayed to allow this appeal.
4. Though served, none appears for the respondents.
5. I have considered the submissions made by the
respective parties. I have perused the record and proceedings.
I have gone through the impugned judgment and award
passed by the Tribunal. I have also considered the pleadings
of the parties before the Tribunal.
6. The only contention raised in this appeal is that the
driver was not holding valid licence on the date of accident
and the owner was not having valid permit to ply the same
and therefore the appellant-insurance company should have
been exonerated from payment of liability. For considering the
same, if the written arguments submitted before the learned
Tribunal by the appellant-insurance company are seen, it has
taken a specific contention before the learned Tribunal that
the driver was not holding a valid licence to drive any type
of vehicle at the time of accident and that inspite of the
notice given by the appellant-insurance company to the owner
and driver to produce the licence and inspite of service of
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the same, the same is not complied with. Further, the vehicle
was used for the purpose of transporting the passengers and
the applicant and opponent nos.1 and 2-driver and owner
have not submitted valid and effective permit of the said
vehicle and inspite of giving by pleading notice to produce
the same, the same is not done. The owner and driver who
could have rebutted the same have not appeared and led
evidence to disprove the same. Therefore, this shows, that
there is breach of condition of the policy and the insurance
company should be exonerated from payment of compensation
in view of the judgment of Amrit Paul Singh and another V/
s TATA AIG General Insurance Co.ltd. Reported in 2018(3)
T.A.C.1 (SC).
7. However, as the manifest object of the provisions of the
MV Act is to ensure that the party, who suffers injuries due
to the use of the motor vehicle, and may be able to get the
damages for the injuries sustained/death and the claimants
cannot suffer for the technicalities of whether the
owner/insurance company should pay the amount. Therefore,
in view of the ratio laid down by the Hon'ble Apex Court in
number of cases, the appellant-insurance company shall first
pay the amount of compensation to the claimant/s and then
it shall have the right to recover the same from the driver-
owner of the vehicle involved in the accident by resorting to
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appropriate remedies available under the law.
Therefore, in view of the above, this appeal is required
to be partly allowed.
8. In view of above, the following order is passed.
8.1 The present appeal is disposed of with a modification in
the impugned judgment and award dated 15.7.2017 passed by
the Motor Accident Claims Tribunal (Aux.), Gandhidham-
Kachchh in Motor Accident Claim Petition No.163 of 2011 to
the extent that the appellant-insurance company shall first
pay the amount of compensation to the claimant/s and then
it shall have the right to recover the same from the driver-
owner of the vehicle involved in the accident by resorting to
appropriate remedies available under the law.
8.2 Thereafter, the entire amount deposited/lying with the
Tribunal and/or in the FDR, pursuant to the order of this
Court if any, shall be disbursed to the claimant/s, along with
accrued interest thereon if any, by account payee cheque,
after proper verification and after following due procedure,
within a period of six weeks from today.
8.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
