The New India Assurance Co. Ltd vs Jinkiben W/O Bhurabhai Rathva ...
2025 Latest Caselaw 2983 Guj

Gujarat High Court

The New India Assurance Co. Ltd vs Jinkiben W/O Bhurabhai Rathva ... on 12 February, 2025

                                                                                                             NEUTRAL CITATION




                              C/FA/3909/2024                                  ORDER DATED: 12/02/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 3909 of 2024

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                                      THE NEW INDIA ASSURANCE CO. LTD.
                                                    Versus
                               JINKIBEN W/O BHURABHAI RATHVA (DELETED) & ORS.
                      ==========================================================
                      Appearance:
                      MS E.SHAILAJA(2671) for the Appellant(s) No. 1
                      NISHIT A BHALODI(9597) for the Defendant(s) No. 2,3,4
                      NOTICE SERVED for the Defendant(s) No. 6,7,8
                      NOTICE UNSERVED for the Defendant(s) No. 5
                      ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                          Date : 12/02/2025
                                                            ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 26.06.2024 passed by the Motor Accident Claims Tribunal, Panchmahals in Motor Accident Claim Petition No.167 of 2018.

2. Brief facts of the case are as under:

2.1 The brief fact of the present appeal is such that on 07.10.2017, deceased Bhurabhai was going by driving Tanker bearing No.GRQ-7409 of opponent No.4 and when he reached near the place of accident, one Truck bearing No.GJ-10-TV-5297 came in rash and negligent manner and dashed with the tanker.

As a result, the accident took place and deceased sustained severe injuries and succumbed to the injuries. Therefore, offence

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to that effect is registered before the Javaharnagar Police Station vide FIR being I-C.R.No.69 of 2017. The legal heirs of the deceased have filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.20,00,000/-. The learned Tribunal vide impugned judgment and award dated 26.06.2024 has granted compensation to the tune of Rs.5,10,000/-. Hence, the present appeal.

3. The solitary contention raised by the appellant in this appeal is that learned Tribunal erred in not considering the defense of the Insurance Company that driver of Truck No.GJ- 10-TV-5297 was not holding valid and effective driving licence at the time of road accident. Learned advocate Ms.E. Shailja appearing for the Insurance Company refer to para 22 and 23 of the impugned judgment and award and submitted that since Insurance Company has based defense of valid and effective driving licence on in the written statement and breach of Rule 3 of the Central Motor Vehicle Rules, duty is cast upon the claimant to prove that driver of offending vehicle was holding valid and effective driving licence on the day of accident. Upon above submission, learned advocate submits to allow the appeal.

4. Per contra, learned advocate Mr.Bhalodi submits that in view of Rule 211 of the Gujarat Motor Vehicle Rules, the claimant is not required to plead and produce the licence of the driver of offending and it is duty of Insurance Company to prove that driver of offending vehicle was not holding valid and effective driving licence and it was within the knowledge of the owner and yet owner of the vehicle has permitted the driver to

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drove the vehicle on public place. He would further submit that learned Tribunal in para 22 and 23 has succinctly discussed this issue to negate the contention raised by the Insurance Company. Upon above submissions, he would submit to dismiss the appeal.

5. Having heard learned advocates for both sides, at the outset, what could be noticed that Insurance Company in its written statement has raised contention that driver of offending vehicle was not holding valid and effective driving licence and it is breach of Rule 3 of the Central Motor Vehicle Rules. Since the driver was not holding valid and effective driving licence at the time of accident, it is fundamental breach of the terms and conditions of the policy. The legal position is well established that the claimant is merely to establish his case on touchstone of preponderance of probabilities and standard of proof beyond reasonable doubt cannot be applied by tribunal while dealing with the motor accident cases. In Mathew Alexander vs. Mohammed Shafi and another - 2023 (13) SCC 510, the Hon'ble Supreme Court has held as under :

"9. *** A holistic view of the evidence has to be taken into consideration by the Tribunal and strict proof of an accident caused by a particular vehicle in a particular manner need not be established by the claimants. The claimants have to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be applied while considering the petition seeking compensation on account of death or injury in a road traffic accident. To the same effect is the observation made by this Court in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013) 10 SCC 646 which has referred to the aforesaid judgment in Bimla Devi."

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6. Rule 211(5) of the Gujarat Motor Vehicle Rules expects from the claimants to append the FIR, medical certificate or pm report or death certificate and certificate regarding ownership and insurance of particular vehicle involved in the claim petition. Apart from that claimant is not required to append any other papers along with claim petition. Insurance Company who raised the contention that driver of the offending vehicle was not holding valid and effective driving licence and yet owner permitted the driver to ride the vehicle, burden is lying upon the Insurance Company to prove such facts.

7. In Rishi Pal Singh vs. New India Assurance Company Limited - 2022 ACJ 1868, the Hon'ble Apex Court after referring to above judgments, in para 10 held as under :

"10. The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver."

8. This Court in case of Raval Rameshbhai Somabhai and others vs. Dipeshkumar Babubhai Patel and others, being First Appeal No.2759 of 2024, after referring to judgment of Rishi Pal Singh (supra), held in para 12 as under :

"12. In view of the above, it is the liability of the Insurance Company to prove that the owner of the vehicle despite having knowledge that the driver is unlicenced permitted the driver to drive the vehicle. The

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duty of the owner is to verify only driving skill of the driver of the offending vehicle. In present case, the Insurance Company has failed to establish that the driver of the offending vehicle did not have skill to drive the offending vehicle."

9. At this juncture, I may refer to the findings arrived at by learned Tribunal in para 22 and 23 as under :

"22. Now, in order to decide whether the Insurance Company is liable to indemnify the liability of driver and owner of the errant vehicle?, as the Opponent No.3 - Insurance Company has raised contention that the driver of the errant vehicle - Opponent No.1 was not holding any kind of effective valid license with specific endorsement for the particular type of vehicle involved in the accident and driver was not eligible to get the license as per RTO rules at the time of the accident. The driving license of the Opponent No.1 is not produced on record.

23. One Mr. Shantilal Damor, of the Insurance Company has examined vide Exh.33. During the examination-in- chief, it is stated that Hussain Ibrahim Sandhi who was driving the Truck No. GJ-10 TV-5297 did not have valid and effective driving license to drive Truck at the time of accident i.e. on 07.10.2017 and, further stated that applicant did not produce valid driving license of Opponent No.1 i.e. Hussain Ibrahim Sandhi. Thus, the Opponent No.2 - Mr. Yunus Ibrahimbhai Arandia had willfully violated terms and conditions of the policy and therefore, this Opponent No.3 is not liable to pay any compensation to the claimants. During the cross- examination, it is admitted that the notice has not been given to the owner to produce the Driving License. It is admitted that the deceased is third party for Insurance Company. Also, looking to the FIR and Charge-sheet, particularly the sections under which the Opponent No.1 i.e. driver of the Truck has been chargesheeted, there is no such sections i.e. Section : 3 and 181 of M. V. Act are implicated in the Charge-sheet which related to not having the Driving License at the time of driving the Truck, so, it is presumed that the driver of the Truck i.e. Opponent No.1 was having valid and effective driving license at the time of driving the Truck."

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10. The Insurance Company raised the contention that the driver of the offending vehicle was not holding valid and effective driving licence but it did nothing to prove the same except raising contention in written statement. What could be noticed that neither driver or owner of the vehicle responded to the service of claim petition and raised contention. Insurance Company did nothing to secure evidence of driver. Learned Tribunal went further and also examined chargesheet filed against driver of truck and observed that since there is absence of offence punishable under Section 3 and 181 of the Motor Vehicle Act, 1988 charge against driver of truck, it could be presumed that driver of truck was holding driving licence. Learned Tribunal Ms.Shailja failed to prove any other evidence to prove the case. Learned Tribunal has therefore rightly fastened liability upon the Insurance Company to pay the compensation and there is no need to interfere with the impugned judgment and award.

11. In view of above reasons, the appeal sans merit and deserves no consideration. It is, accordingly, dismissed. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.

(J. C. DOSHI, J) GAURAV J THAKER