United India Insurance Co. Ltd vs Laxmiben Wd/O Rajubhai Ramanbhai ...
2025 Latest Caselaw 2254 Guj

Gujarat High Court

United India Insurance Co. Ltd vs Laxmiben Wd/O Rajubhai Ramanbhai ... on 30 January, 2025

                                                                                                               NEUTRAL CITATION




                              C/FA/2050/2024                                   ORDER DATED: 30/01/2025

                                                                                                                undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2050 of 2024

                      ================================================================
                                     UNITED INDIA INSURANCE CO. LTD.
                                                   Versus
                        LAXMIBEN WD/O RAJUBHAI RAMANBHAI HALPATI (TALAVIYA) & ORS.
                      ================================================================
                      Appearance:
                      MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
                      NOTICE SERVED for the Defendant(s) No. 1,2,4
                      NOTICE UNSERVED for the Defendant(s) No. 3
                      ================================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 30/01/2025

                                                               ORAL ORDER

1. The present First Appeal, under Section 173 read with Section 166 of the Motor Vehicles Act, 1988, is preferred by the appellant - United India Insurance Co. Ltd., being aggrieved and dissatisfied with the judgment and award dated 05.10.2023 passed by the Motor Accident Claims Tribunal (Main), Navsari in Motor Accident Claim Petition No.1 of 2018.

2. Brief facts of the case are as under:

2.1 The brief facts of the present appeal are such that on 04.09.2017, at about 19.00 hrs., the deceased Rajubhai Ramanbhai Halpati (Talaviya) was going to his village Ashtgam via National Highway No.8 and at that time, while he was passing through Khadsupa over bridge and mounting the over bridge, at that time, the respondent No.3 had come with his container, driving in a rash and negligent manner and in a

NEUTRAL CITATION

C/FA/2050/2024 ORDER DATED: 30/01/2025

undefined

manner to endanger human life and dashed the deceased and the deceased sustained head injury and he died on the spot.

3. Learned advocate Mr. Palak Thakkar for the appellant Insurance Company assailed the impugned judgment and award on the ground that the learned Tribunal erred in passing the order of pay and recover in the case where it is proved on record that the driver of the offending vehicle was not holding valid and effective driving license, therefore, he would submit that the appeal may be allowed on the ground that the driver of the offending vehicle was not holding valid and effective driving license on the date of road accident and therefore, the Insurance company may be exonerated from the liability of payment of compensation.

4. Respondents - original claimants are served, but they have chosen not to remain present before the Court.

5. I have heard learned advocate Mr. Thakkar and also perused the Record & Proceedings. At the outset, I may refer to the discussion of the learned Tribunal. The reasoning given by the learned Tribunal under the head 'Liability', which is reproduced hereunder :

"It has been held in the issue no.1 that, the accident has taken place due to negligence on the part of the opponent no.1. It appears from the R.C.Book of the offending truck No.MH.46.BB.1507, placed on record below Exh.31, the opponent no.2 was the owner of the said truck at the time of accident. The Insurance Policy of truck No.MH.46.BB.1507 has been placed on record below Exh.35, which shows policy period 16.03.2017

NEUTRAL CITATION

C/FA/2050/2024 ORDER DATED: 30/01/2025

undefined

to 15.03.2018. The accident occurred on 04.09.2017. Therefore, the offending vehicle was insured with the opponent no.3 on the date of accident.

Ld.Adv.Mr.D.N.Mistry, appearing for the opponent no.3Ins.Co. has submitted that the driver of offending vehicle was not holding valid and effective driving licence at the time of accident. The Ld.Adv. for the opponent no.3 has produced the Extract of Driving Licence of the opponent no.1, issued by Transport Department, Government of Rajasthan, below Exh.49, which shows that the opponent no.1 was holding LMV license at the time of accident and therefore, he was not eligible to drive the truck. Under this circumstances the Opponent No.3 is not liable to pay any compensation to the applicants and the claim petition deserves to be dismissed.

Therefore, looking to the aforesaid document, it clearly appears that the opponent no.1 was not holding a valid and effective driving license at the time of accident and he was not eligible to drive the truck. Therefore, it is proved that the opponent no.1 committed the breach of the terms and conditions of the Policy and therefore, the opponent no.3 is not liable to pay compensation to the applicants.

Ld.Adv.Mr.M.M.Patel, appearing for the applicants has submitted that, so far the point of invalid driving license of the opponent no.1 is concerned, he has relied upon the decision rendered by the Hon'ble Apex Court reported in (2004) 3 S.C.C. 297 (National Insurance Co.V/s. Swaran Singh & Others), wherein, it has been held that the Insurance Companies are, however, with a view to avoid their liability must not only establish the available defense

(s) raised in the said proceeding but must also establish 'breach' in the part of owner of the vehicle, the burden of proof would be on them.

"110. Mere absence, fake of invalid driving license or disqualification of the driver for driving at the relevant time are not in themselves defense available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insured has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time..."

NEUTRAL CITATION

C/FA/2050/2024 ORDER DATED: 30/01/2025

undefined

It appears from the evidence on record that the opponent no.1 was not holding a valid driving licence at the time of accident. However, the deceased is third party and not holding valid driving license was not a cause of an accident. At this stage, decision of the larger bench of Kerala High Court rendered in the case of Pareed Pillai S/O Abdulkhader Vs. Oriental Insurance Co. Ltd., dated 09/10/2018, reported in 2018 SCC online, Kerala, 3542 is required to be referred, wherein, it has been held that, non possession of valid fitness certificate for a vehicle constitutes fundamental breach of insurance policy, entitling the insurer to exercise pay and recover option in compensation cases arising out of accidents caused by such vehicle. No decision of our Hon'ble High Court has been pointed out to this Tribunal by either of the parties. Having regard to the aforesaid, the opponent no.3Insurance Company is required to be exonerated with a stipulation that the Insurance Company shall satisfy the award at first instance and thereafter, recover it from the driver and owner of the offending vehicle bearing Truck No.MH.46 BB 1507 by filing execution petition, i.e. the opponent no.1 and 2.

Therefore, the opponent nos.1 and 2 are liable to make the payment of compensation to the claimant."

6. What appears that he learned Tribunal has raken the assistance from the judgment of the Hon'ble Apex Court in case of National Insurance Company vs. Swaran Singh & Others, reported in (2004) 3 SCC 297. After believing that the driver of the erring vehicle was not holding valid and effective driving license, hence, Insurance Company was not liable to pay any amount. But, since the claimant is the third party, the Insurance Company to satisfy the award at the first instance and to recover the same from the owner of the offending vehicle.

7. In Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, the Hon'ble Apex Court has reiterated the

NEUTRAL CITATION

C/FA/2050/2024 ORDER DATED: 30/01/2025

undefined

principles laid down in case of Putappa & Ors. vs. Rama Naik & Anr., Civil Appeal No.4397 of 2016, order dated 02.04.2018. the Apex Court observed that: "However, we are of the considered opinion, the High Court should have directed to invoke the principle of 'pay and recover' conferring the right on the insurer to realise the amount from the owner and the driver."

8. In view of above, according to this Court, learned Tribunal has not committed any error after believing that the driver of the offending vehicle was not holding valid and effective driving license on the day of accident and thereby exonerated the Insurance Company but, directed them to satisfy the award at the first instance and to recover the amount from the owner by executing the judgment and award.

8.1 Appeal deserves no merits and required to be rejected, accordingly rejected.

8.2 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(J. C. DOSHI,J)

Dolly