Gujarat High Court
Anitaben W/O Tejash Rameshbhai Parekh vs Israrali Nawabali Saiyed on 24 September, 2024
NEUTRAL CITATION
C/FA/2689/2021 ORDER DATED: 24/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2689 of 2021
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ANITABEN W/O TEJASH RAMESHBHAI PAREKH & ORS.
Versus
ISRARALI NAWABALI SAIYED & ORS.
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Appearance:
MR NILESH PANDYA FOR MR PARTH D PATEL(9754) for the
Appellant(s) No. 1,2,3,4
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
NOTICE SERVED BY DS for the Defendant(s) No. 1,2,5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/09/2024
ORAL ORDER
1. Heard learned advocate Mr.Nilesh Pandya for and on
behalf of learned advocate Mr.Parth Patel appearing for the
appellants, learned advocate Mr.Palak Thakkar appearing for
respondent No.4 and learned advocate Ms.Kirti S. Pathak
appearing for respondent No.3. Though served, remaining
respondents did not remain present.
2. This appeal under Section 173 of the Motor Vehicle Act,
1988 challenges the judgment and award passed by the Motor
Accident Claim Tribunal (Aux.) and 2nd Additional Sessions
Judge, Anand in M.A.C.P. No.358 of 2012 whereby learned
Tribunal was pleased to grant total compensation of
Rs.32,83,000/- with interest at the rate of 9% p.a. from the date
of the petition till realization by exonerating the Insurance
Companies being respondent No.3 and respondent No.4.
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3. The brief facts of the case are as under.
3.1 The claimant filed claim petition under Section 166 of the
Motor Vehicle Act for recovery of compensation of Rs.90 Lakhs
for death of deceased in alleged vehicular accident which
occurred on 23.03.2012, alleging that deceased died due to rash
and negligent driving on the part of drivers of offending vehicles.
Learned Tribunal exonerated respondent No.3 on the ground
that claimant has not produced driving licence of respondent
No.1 driver of vehicle. Learned Tribunal also exonerated
respondent No.4 - Insurance Company because deceased was
owner of the vehicle. Hence, the present first appeal.
4. Noticeably this is a case where two vehicles namely vehicle
bearing Registration No.GJ-1-CX-7614 and new vehicle Maximo
Mini Van. The vehicle bearing Registration No.GJ-1-CX-7614
was owned by respondent No.2 - Rangrej Babubhai Vahidbhai.
The policy of the said vehicle has been taken from Reliance
General Insurance Company Limited. The Maximo Mini Van was
owned by deceased Tejashkumar Rameshbhai Parekh. At the
time of accident, it was driven by respondent No.5 - Mukesh
Gordhanbhai Solanki. The insurance of the said vehicle has been
purchased from respondent No.4 - Iffco Tokio General Insurance
Company Limited. It is apt to note that exonerating two
Insurance Companies learned Tribunal reached to the
conclusion that since the petitioner has not produced licence of
respondent No.1 i.e. the driver of the vehicle bearing No.GJ.-1-
CX-7614, it is a breach of terms and conditions of the policy and
it led to exoneration of Reliance General Insurance Company
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C/FA/2689/2021 ORDER DATED: 24/09/2024
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Limited. As far as exoneration of respondent No.4 - Iffco Tokio
General Insurance Company Limited is concerned, it is observed
by learned Tribunal that the deceased was the owner of the
Maximo Mini Van and he cannot claim compensation from his
own Insurance Company. However, while observing so, learned
Tribunal fastened the liability on his own driver to pay the
compensation.
5. Let me refer para 17 of the judgment which is the reason to
exonerate respondent No.3 - Reliance General Insurance
Company Limited, the insurer of vehicle bearing Registration
No.GJ.-1-CX-7614 :
"17. Now so far as liability of the opponent No.3
insurance company is concerned, in the present case
applicants have not produced copy of driving licence of
the opponent No.1 driver of the vehicle and therefore this
is a breach of terms and conditions of insurance policy.
Therefore, opponent No.3 insurance company is
exonerated from the liability."
6. I may also refer to para 18 of the judgment which are
reasons stated to exonerate respondent No.4 Insurance
Company but fastened liability on respondent No.5 - driver of
Maximo Mini Van which reads as under :
"18. It is pertinent to note that the deceased was
owner of the vehicle car involved in the accident and
therefore, I agree with the ld. Advocate for the
opponent No.4 insurance company that being owner
of the vehicle applicants and deceased are not third
party for the opponent No.4, because the police
produced on record is simple policy of indemnity i.e.
contract of insurance with terms and conditions to
indemnify the deceased against claims of
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C/FA/2689/2021 ORDER DATED: 24/09/2024
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compensation made by third party against him.
Therefore, in view of the above discussion, it is
admitted fact that the deceased was owner of the
vehicle and therefore, deceased and applicants are
not third party of the opponent No.4 insurance
company, hence, opponent No.4 is exonerated from
the liability."
7. I see no logic, fathom and rationality in the finding of the
learned Tribunal to exonerate respondent No.3 on the ground
that since the petitioner has not produced the copy of the licence
it is a breach of terms and conditions of the policy lead to
exonerate Reliance General Insurance Company Limited. A
complete absurd and illogical finding has been recorded by
learned Tribunal to exonerate Insurance Companies. A lot more
can be observed in this regard. However, since the request has
been made by learned advocate appearing for the other side to
remand the matter for fresh hearing, this Court restrains itself
from passing any observation.
8. As far as joining of respondent Nos.4 and 5 is concerned,
the driver and insurer of Maximo Mini Van owned by deceased
Tejash Parekh is concerned, learned advocate Mr.Nilesh Pandya
in his utter fairness submitted that no claim petition can be filed
against the driver of the vehicle owned by the deceased involved
in the road accident. It is not permissible to file claim petition
against his own driver and the Insurance Company for the death
of the owner for the vehicle owned by the deceased involved in
the accident, in purview of Motor Vehicle Act. Therefore, learned
advocate Mr.Nilesh Pandya submits that once the matter is
remanded to the learned Tribunal, respondent Nos.4 and 5 shall
be deleted from the cause-title. In view of the above submissions,
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C/FA/2689/2021 ORDER DATED: 24/09/2024
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respondent Nos.4 and 5 are treated to be deleted from the
original claim petition as well.
9. For the foregoing reasons without entering into further
merit, keeping all the contentions of both parties herein open,
the impugned judgment and award is quashed and set aside and
the matter is remanded to the learned Tribunal to be decided
afresh on its own merits. Both parties are permitted to lead
evidence, if they so desire. The matter is placed before Motor
Accident Claims Tribunal (Main), Anand and it is expected to be
disposed of within three months without being influenced by
earlier finding or any observations made hereinabove on merit.
10. The present first appeal stands disposed of, accordingly.
(J. C. DOSHI, J)
GAURAV J THAKER
