Gujarat High Court
Swarupji Khengarji Pir Alias Dada ... vs Mubarak Harun Jat on 31 January, 2025
NEUTRAL CITATION
C/FA/3071/2022 ORDER DATED: 31/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3071 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 3071 of 2022
With
R/FIRST APPEAL NO. 3072 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 3072 of 2022
With
R/FIRST APPEAL NO. 653 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 653 of 2020
With
R/FIRST APPEAL NO. 2403 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2403 of 2022
==========================================================
SWARUPJI KHENGARJI PIR ALIAS DADA KHENGARJI PIR
Versus
MUBARAK HARUN JAT & ORS.
==========================================================
Appearance:
MR NILESH M SHAH(780) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
MS JEMINI S PATEL(10140) for the Defendant(s) No. 1,2,4
RULE NOT RECD BACK for the Defendant(s) No. 3
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/01/2025
COMMON ORAL ORDER
1. Since all four First Appeals filed u/s 173 of the Motor
Vehicles Act, 1988 (in short "the Act") arise out of selfsame
accident having judgment and award in different M.A.C.P. being
MACP No.31 to 34 of 2012 filed u/s 163-A of the Act and partly-
allowing the petitions by judgments and award dated 18.12.2018
and 20.12.2018 passed by the learned MACT (Aux), Kutch at
Bhuj, they are being disposed of by this common order.
NEUTRAL CITATION
C/FA/3071/2022 ORDER DATED: 31/01/2025
undefined
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on
15.09.2011, deceased persons were returning in Bolero Jeep
No.GJ-10-V-3195 and when they reached near the place of
accident, the vehicle got punctured and therefore, the deceased
persons stood at the side of vehicle, at that time, opponent No.1
came driving Scorpio car No.GJ-12-AE-2406 in rash and
negligent manner and dashed with Bolero jeep. As a result, the
accident took place and deceased persons sustained severe
injuries and succumbed to the injuries. The legal heirs of the
deceased have filed aforestated claim petitions under Section
166 of the Motor Vehicle Act, 1988 claiming compensation. The
learned Tribunal vide impugned judgments and award dated
18.12.2018 and 20.12.2018 has granted compensation to the
claimants. Hence, the present appeals.
3. Learned advocate Mr.Nilesh Shah who is appearing for the
owner of the errant vehicle argued that learned Tribunal without
discussing issue of breach of terms and conditions of the policy
straightaway jumped to pass the order of pay and recover.
Learned advocate Mr.Shah takes this Court through para 8, 8.1
and 8.2 of the impugned judgment and award and submits that
at no point of time learned Tribunal has decided the issue of
liability, breach of terms and conditions of the policy and yet
without discussing any evidence on record, believed that there is
breach of terms and conditions of the policy and passed the
order of pay and recover. Therefore, he submits to allow these
appeals.
NEUTRAL CITATION
C/FA/3071/2022 ORDER DATED: 31/01/2025
undefined
4. Per contra, learned advocate Ms.Kirti Pathak appearing for
Iffco Tokio General Insurance Company Limited submits that
written statement has been filed by the Insurance Company
wherein a categorical defense was raised that licence of the jeep
driver was cancelled. She would further submit that statement of
jeep driver recorded by the police is also on the same line. She
would submit that though there no discussion o the issue by the
learned Tribunal, perhaps it is in the mind of the learned
Tribunal that since jeep driver was not holding licence, it is a fit
case to pass order of pay and recovery. Therefore, she submits
not to disturb such finding arrived at by the learned Tribunal
which is honoured by the Insurance Company. Upon above
submissions, she would submit to dismiss all the appeals.
5. Learned advocate Mr.Nanavati for Shriram General
Insurance Company Limited would submit that they are insurer
of Jeep No.GJ-10-V-3195 and after detailed discussion, learned
Tribunal has exonerated the driver, owner and insurer of vehicle
No.GJ-10-V-3195 from liability to pay the compensation and
such finding is neither challenged by driver, owner or insurer of
vehicle No.GJ-12-AE-2406 nor by the original claimants. In
these given facts, she has nothing to argue except to confirm the
said finding.
6. At the outset, let me refer para 8, 8.1 and 8.2 of the
impugned judgment and award which reads as under :
"8. So far as liability of compensation is concerned,
admittedly, the accident occurred on account of
negligence on the part of the driver of offending Scorpio
No.GJ-12-AE-2406. The claimant has produced the copy
of the insurance policy at Mark 7/7 wherein the policy
NEUTRAL CITATION
C/FA/3071/2022 ORDER DATED: 31/01/2025
undefined
was effective and valid at the time of the accident. The
insured has taken the policy of private Car policy
wherein he has taken the additional premium for P.A. to
passenger of Rs.405/-.
8.1 As per the latest decision of United India Insurance
Co. Ltd. vs. Sunil Kumar, reported in 2018 (2) GLR 1011
wherein the Hon'ble Supreme Court has held that,
"Section 163a and 170 - Accident claim - Held, it is not
open for insurance company to raise any defence of
negligence of victim in claim proceedings under section
163A - Provision of Sec. 163A based on concept of no
fault liability.
Hence, as per the above decision, the Insurance
company is not taken any defence of victim negligence.
But at this stage, it is kept in mind that, the Tribunal has
to see the conditions of respective policy. If the claimant/
deceased has breached any condition of policy, then the
Insurance Company may be exonerated from his
liability.
8.2 Looking to the observations made in the case of
National Insurance Company Ltd. vs. Swaran Singh and
others, reported in AIR 2004 SC 1531, paragraphs
Nos.105(ix) and (x), it becomes clear that Tribunal can
pass an order whereby insurer can be directed to first
pay amount of compensation in favour of the claimant
and after the payment is made, insurer can recover the
same from the owner/driver of the offending vehicle. It is
nowhere mentioned by Hon'ble Apex Court in the
Swaran Singh's (supra) that Tribunals are not
empowered to pass an order of pay and recover. In view
of the above referred discussion and ratio laid down by
Hon'ble Apex Court in the case of Swaran Singh (supra),
insurance company is directed to first pay amount of
compensation in favour of the claimant and thereafter,
insurance company can recover the amount of
compensation from the owner and/or driver of the
offending vehicle."
7. This Court does not find any discussion made by learned
Tribunal to pass the order of pay and recover except making
NEUTRAL CITATION
C/FA/3071/2022 ORDER DATED: 31/01/2025
undefined
reference to the judgment of Swaran Singh (supra), but how the
judgment of Swaran Singh (supra) would be helpful to the learned
Tribunal in passing the order of pay and recover has not been
discussed by the learned Tribunal. None of the evidence led by
either party is discussed by learned Tribunal in this regard. The
order as far as liability issue is concerned is found totally cryptic
and non-reasoned order. If there is a breach of the terms and
conditions of the policy, learned Tribunal is expected to discuss it
in evidence, which has not been done and therefore, the
impugned judgment and award as far as issue of liability and
passing order of pay and recover is concerned, it is totally non-
speaking order and passed without applying the mind. Therefore,
the impugned order to recover the amount after paying at first
instance deserves to be set aside and matter is remanded back to
the learned Tribunal for fresh consideration on issue of liability.
In par 8.3 of the impugned order, learned Tribunal passed the
order permitting the claimants to recover the amount of
compensation jointly and severally from opponent Nos.1 and 2.
So complete self contradictory order has been passed by the
learned Tribunal. Para 8.3 is reproduced as under :
"8.3 As the driver of the Scorpio was negligent for this
accident as it is discussed in above para No.6 onwards,
the opponent Nos.1 and 2 are jointly and severally liable
to pay compensation to the claimant. It is hereby ordered
that the opponent No.3 and 4 are exonerated from his
liability to pay compensation."
8. At this juncture, it is needless to state that issue of
exonerating the driver, owner and insurer of Jeep No.GJ-10-V-3195
is not questioned by any of the party and hence, it attains finality
and deserves to be maintained. It is, accordingly, maintained.
NEUTRAL CITATION
C/FA/3071/2022 ORDER DATED: 31/01/2025
undefined
9. For the reasons stated hereinabove, the following order is
passed :
9.1 All four First Appeals are allowed in the aforesaid terms.
Order of pay and recovery passed by the learned Tribunal is
quashed and set aside. All claim petitions are placed before the
learned Motor Accident Claim Tribunal (Main), Kutch at Bhuj for
fresh decision that whether there is sufficient evidence to believe
that there is breach of the terms and conditions of the policy and
if that is so, whether order of pay and recover can be passed in
given facts and circumstance of the case. Both contesting parties
i.e. owner and insurer of vehicle No.GJ-12-AE-2406 are given
liberty to lead evidence with regard to liability as well as breach
of terms and conditions of the policy.
9.2 Learned Tribunal shall decide the matter as early as possible
and preferably within nine months from the date of receipt of
copy of this order.
9.3 The statutory amount deposited by the owner of the
offending vehicle shall remain till final fresh disposal of the claim
petitions and subject to outcome of the decision.
9.4 Both parties shall remain present before the learned
Tribunal on 14.02.2025. Registry is directed to send back the
record and proceedings to the concerned Tribunal before
14.02.2025. Connected Civil Applications are disposed of.
(J. C. DOSHI, J)
GAURAV J THAKER
