Gujarat High Court

Oriental Insurance Company Ltd Thro' ... vs Bharvad Khengarbhai Karmanbhai on 18 September, 2024

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                              C/FA/1306/2012                                      JUDGMENT DATED: 18/09/2024

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                  R/FIRST APPEAL NO. 1306 of 2012
                                                               With
                                                  R/FIRST APPEAL NO. 1307 of 2012

                        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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                        ORIENTAL INSURANCE COMPANY LTD THRO' AUTHORISE SIGNATORY
                                                 Versus
                                  BHARVAD KHENGARBHAI KARMANBHAI & ORS.
                        ==========================================================
                        Appearance:
                        MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
                        MS AMRITA AJMERA(5204) for the Defendant(s) No. 1
                        RULE SERVED for the Defendant(s) No. 2
                        RULE UNSERVED for the Defendant(s) No. 4
                        ==========================================================

                            CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                          Date : 18/09/2024

                                                         ORAL JUDGMENT

1. The present appeals are filed by the appellant -

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Insurance Company under Section 173 of the Motor Vehicles

Act, being aggrieved by and dissatisfied with the judgment

and award dated 21.10.2011 passed by the Motor Accident

Claims Tribunal (Main), Surendranagar in Motor Accident

Claim Petition No.336 of 2005 and 196 of 2005, by which,

the Tribunal has partly allowed the claim petitions by

awarding the compensations as mentioned in the judgment

and award, by holding opponents liable, jointly and severally.

2. The facts of the present appeal are as under :

2.1 The claimants filed the claim petitions stating that on

20.9.2004, the claimant/s were going on chhakdo rickshaw

no.GJ.13T.8415 with his household goods by deciding the fare

from Lakhtar to Ghalvana, at that time, the chhakdo

rickshaw driver drove his rickshaw in rash and negligent

manner and when they reached the place of incident, the

tractor no.GJ.13B.6614 came from opposite and it was also

driven in a rash and negligent manner and dashed with the

chhakdo rickshaw, due to which, the accident occurred and

the claimant/deceased sustained serious injuries. Therefore,

the claim petitions were filed by the claimants for

compensation.

2.2 The notices were served to the opponents, the written

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statements were filed, 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.

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

mainly on the ground that the insurance company is not

liable to pay the amount of compensation in view of the fact

that the fact that the driver of tractor in question was not

holding valid and effective driving licence to drive the insured

tractor and therefore the insured-owner of the vehicle has

committed a serious breach of law and condition of policy by

consciously allowing driver to drive the tractor without

licence. He, therefore, submitted that the insurance company

should have been exonerated from the payment of

compensation. He, therefore, prayed to allow these appeals.

4. Per contra, learned advocate for the claimant/s has submitted that the learned Tribunal has not erred in passing

the impugned judgment and award and has considered the

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settled legal position at the time of awarding the

compensation. Further, as the offending vehicle was insured

with the appellant-insurance company on the date of accident,

it cannot shirk from its responsibility to pay the amount to

the claimant/s. She submitted that, however, as there was

breach of condition of policy and law, in view of the various

judgments of the Hon'ble Apex Court, the learned Tribunal

has passed the order of `pay and recover', protecting the

interest of the claimants and also securing the interest of the

insurance company, which is just and proper and therefore,

she prayed to dismiss these appeals.

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 ground raised in these appeals is that the

insurance company should have been exonerated from

payment of compensation and that the learned Tribunal has

erred in passing the order of `pay and recover'. In this

regard, if the discussion by the learned Tribunal is perused,

it is observed that only on the basis of the fact that the

driver of the tractor was not holding valid driving licence,

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the insurance company cannot be exonerated from the

payment of compensation and the order of pay and recover

should be passed in view of the judgment in case of Ram

Babu Tiwari V/s United India Insurance Company Limited and others reported in 2009(1) GLR page 545 and Zehru Nisa 2008 ACJ-1928, wherein the driver was holding the licence to drive a heavy vehicle and he was driving a light

vehicle and it was believed that in the case of fatal injury

case, at the time of accident, the driver was not holding a

valid and effective licence and therefore there is no liability

of the insurance company but the insurance company shall

first pay the amount of compensation to the claimant/s and

then recover the same from the owner-driver of the vehicle.

Further, it is observed in paragraph 37 that therefore if the

order of pay and recover is passed in this case, then it will

be just and proper and thus passed the said order.

7. The negligence is decided by the learned Tribunal, the

issue of not having valid licence raised by the insurance

company is also dealt with and thereafter the conclusion is

arrived at that the said contention is valid and there is

breach of terms of the policy and law as there is no valid

licence and thereafter considering the various judgments of

the Hon'ble Apex Court, the order of pay and recover is

passed.

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8. 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. Though the

insurance company is not liable to pay the amount and

exonerated from the liability, as the vehicle is insured with

the insurance company, the insurance company herein firstly

shall pay the awarded amount of compensation to the

applicants 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, in view of the ratio laid down by the Hon'ble Apex

Court in number of cases and also in the judgments relied

on by learned advocate for the appellant/s-claimant/s. The

said order is already passed by the learned Tribunal, which

is not required to be interfered with.

9. In the judgment in the case of Shivaraj V/s

Rajendra and another reported in 2018 ACJ 2755, the

Hon'ble Apex Court has held in paragraph 10 as under:

"10. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance

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company to pay the compensation amount to the claimant(appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this court in National Insurance Co.Ltd. V.Swaran Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh Kumar Singh, 2017 ACJ 1031 (SC). In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2, Appellant may, therefore, succeed in getting relief of direction to respondent No.2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."

Therefore, in view of the above, these appeals are

required to be dismissed.

10. In view of above, the following order is passed.

10.1 The present appeal is dismissed.

10.2 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

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verification and after following due procedure, within a period