Gujarat High Court
Hdfc Ergo General Insurance Company Ltd vs Kalavatiben W/O Prabhubhai Vijaji ... on 1 April, 2025
NEUTRAL CITATION
C/FA/4165/2023 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4165 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HDFC ERGO GENERAL INSURANCE COMPANY LTD
Versus
KALAVATIBEN W/O PRABHUBHAI VIJAJI VAVLIYA & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
KAASH K THAKKAR(7332) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/04/2025
ORAL JUDGMENT
1. Heard learned advocate Ms. Kirti Pathak for the
appellant and learned advocate Mr. K. K. Thakkar for
respondent Nos.1 to 4. Though served, none appeared
for and on behalf of the respondent Nos.5 to 8. Perused
the record.
2. The challenge in the present appeal is by the original
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opponent No. 3 - Insurance Company challenging the
judgment and award dated 1.4.2023 passed by learned
Motor Accident Claims Tribunal (Aux), Tharad at
Banaskantha in M.A.C.P. No.520 of 2018.
3. The facts in brief of the case are as under:
* On 25.12.2016, deceased was a pillion rider
on motorcycle No.GJ-8-AS-2664 which was driven by
Pratanpbhai Dungarbhai. When they reached near the
place of accident, tractor bearing registration No.GJ-8AJ-
3663 driven by driver of the said vehicle in a rash and
negligent manner dashed with the motorcycle.
Resultantly, deceased sustained serious injuries and
succumbed.
* Claimants being the legal heirs of the
deceased filed Claim Petition being MACP No.520 of 2018
before learned Motor Accident Claims Tribunal (Aux),
Tharad for a compensation of Rs.4,62,833/- with interest
@ 12% pa under Section 163A of the M.V. Act, 1988 from
the opponents. Opponents were served with summons.
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* Opponent No.1 - owner of the tractor
appeared but did not file Written Statement. Opponent
No.2 - owner of motorcycle appeared and filed Written
Statement at Exh.14. The claim petition was resisted by
Insurance Company - respondent No.4 by filing Written
Statement at Exh.22 and denied its liability. After framing
of issues, claimant No.1 submitted examination-in-chief
at Exh.26 and produced FIR, Panchnama, PM report and
documents to substantiate income of deceased.
* After considering the evidence, learned
Tribunal partly allowed the claim petition by directing
opponents to pay an amount of Rs.4,36,167/- to the
claimants with interest @ 9% p.a. with proportionate cost
from the date of application till realisation.
* Being aggrieved and dissatisfied with the
impugned judgment and award, the Insurance Company -
appellant has filed the present appeal.
4. Learned advocate for the appellant submits that on the
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date of accident, the driver of motorcycle was not
holding an effective driving license and, thereby, the
owner of motorcycle has committed breach of the terms
and conditions of the policy. In support of his contention,
he has submitted that the application under Order - 16,
Rule 1 of the Code of Civil Procedure, 1908 was filed
vide Exh.32. Pursuant to the said application, summons
came to be issued to the RTO, Palanpur and PSI of
Tharad Police Station. Both the witnesses though
served, did not remain present for deposition. Exh.41
which is the oral deposition of the Officer of the
insurance company has deposed that as per the terms
and conditions of the policy, a person driving a vehicle
must possess valid and effective driving license under
the head of driver clause which reads as under:
"Any person including the insured:
Provided that a person driving holds an
effective driving licence at the time of the
accident and is not disqualified from holding
or obtaining such a licence. Provided also
that the person holding an effective
learner's license may also drive the vehicle
when not used for the transport of
passengers at the time of the accident and
that such a person satisfies the
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requirements of Rule 3 of the Central Motor
Vehicles Rules, 1989."
5. It is further submitted that there is a clear breach of
terms and conditions of the policy, insurance company
cannot be fastened with the liability to pay
compensation to the claimants. It is further submitted
that charge-sheet which is filed against the driver of the
tractor indicates that the accident has occurred due to
sole negligence on the part of the driver of the tractor,
however,learned tribunal has erred in holding all
opponents jointly and severally liable to pay
compensation. It is also submitted that in absence of the
effective driving license to driver motorcycle, insurance
company ought to have been exonerated.
6. Per contra, learned counsel for the respondent
supported the impugned judgment and award and
submitted that even if there is a breach of terms and
conditions of the policy by the owner of the motorcycle,
the claimants may not be deprived off the right to claim
compensation. It is submitted that dispute of the breach
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of terms and conditions of the policy is between insured
and insurer of vehicle and the claimants being 3 rd party
may not be deprived off the legitimate right to claim
compensation. The law is well settled on the question of
not having valid and effective driving license of the
driver of offending vehicle. It is submitted that the
insurance company has to first pay the compensation
and, thereafter can recover the amount of compensation
from the owner and driver of the motorcycle.
7. I have considered the submissions canvassed by learned
advocates for the respective parties and perused the
Record and Proceedings. It appears that the accident
has occurred because of the rash and negligent driving
of the driver of the tractor. The vehicle being the tractor
is not insured vehicle. The question which has been
raised by learned advocate for the appellant that the
despite the application under Order 16 Rule 1 of the
Code seeking issuance of witness summons to the RTO
Officer, Palanpur and the PSI, Tharad Police Station, who
has investigated into the complaint, did not remain
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present. The oral deposition of the Officer of the
insurance company at Exh.48 has in clear terms
admitted that he has not inquired about the fact that the
driver of motorcycle was not having a valid driving
licence. When he has not made any attempts to inquire
from the RTO office despite the fact that the notice of
witness summons was issued vide Exhs.34 and 35,
thereafter, the insurance company did not pursue the
matter for further adjudication and allowed the
proceedings to proceed further in absence of the
concerned witnesses.
8. The only limited question which is under consideration is
when the driver of the motorcycle was not holing valid
driving licence, can the insurance company be saddled
with liability to pay compensation? The concept of pay
and recover is not alien to the claim petition. When the
insurance company is heavily relied upon the fact of not
holding valid driving license, first of all, insurance
company has to pay the compensation to the claimants
and, thereafter, can recover such amount of
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compensation from the owner and driver of motorcycle.
For the dispute of non-holding valid and effective driving
license, claimants being 3rd party could not be deprived
of compensation. Learned tribunal after considering the
evidence has considered the deposition of witness
Raimal Mavji at Exh.39. Such witness has deposed that
the accident has occurred because of sole negligence of
driver of the tractor.
9. The principle of pay and recovery under the Motor
Vehicles Act, 1988 mandates that an insurance
company must first pay compensation to the 3rd party
claimant and subsequently recover the amount from the
owner of the offending vehicle even in cases where
there are violation of policy conditions. This principle is
designed to protect the rights of 3 rd party victims in
motor vehicle accident. The principle of pay and
recovery serves as a protective measure for 3 rd party
claimants in motor vehicle accidents ensuring they
receive compensation promptly while allowing the
insurers to recover the amount from the vehicle owners
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in cases of policy violation.
10. Considering the aforesaid principle, the first appeal is
partly allowed accordingly. The insurance company
shall first pay compensation to the appellant and
thereafter can recover the amount of compensation
from the owner and driver of the motorcycle by
resorting to a legal remedy which is available under
the law.
11. Record & Proceedings, if any, be sent back to the
concerned Tribunal / Court. No order as to costs.
(D. M. DESAI,J)
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