Gujarat High Court
Reliance General Insurance Co Ltd vs Mulchand Kunchand Khuha on 19 November, 2025
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C/FA/1180/2022 JUDGMENT DATED: 19/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1180 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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RELIANCE GENERAL INSURANCE CO LTD
Versus
MULCHAND KUNCHAND KHUHA & ANR.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 19/11/2025
ORAL JUDGMENT
[1.0] This appeal has been preferred by the appellant-original
opponent No.2 - Reliance General Insurance Co. Ltd. against the
judgment and award dated 31.03.2021 passed by the learned Motor
Accident Claims Tribunal (Auxi.), at Rajula, District Amreli (for short
referred to as "learned Tribunal") in Motor Accident Claim Petition
No.10 of 2016 filed under Section 166 of the Motor Vehicles Act,
1988 (for short referred to as "MV Act") wherein the learned
Tribunal has partly allowed the claim petition of respondent No.1
and awarded compensation of Rs.3,20,880/- with interest at the
rate of 8.5% per annum from the date of the claim petition.
[2.0] Heard learned advocates for the respective parties. Though
served, none appears for respondent No.2.
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[3.0] The brief facts of the present claim petition are that the
accident took place on 30.03.2016, when the respondent No.1 -
original claimant was coming from Mahuva to Rajula in his Alto Car
and reached between village Victor and Dataradi at about 8.30 p.m.,
from the opposite direction, driver of Truck No.GJ-04-X-6410 came
with full speed and dashed with the car of the original claimant
pursuant to which the original claimant sustained serious injuries on
face and head and on other parts of the body. In this regard, a
complaint was lodged with Marine (Pipavav) Police Station bearing
I-CR No.15/2016.
[4.0] Learned advocate Ms. Kirti Pathak appearing for the
appellant has submitted that the learned Tribunal has materially
erred in not appreciating the defence of fabricated license raised by
the insurance company though it was proved by the appellant -
insurance company that the driver of Truck No.GJ-04-X-6410 was
not holding valid and effective license, which was produced at
Marks 5/5 and 5/6 and in light of the said document, insurance
company ought to have been exonerated. Further, the insurance
company had also examined one Devangbhai Bhikhubhai Parikh,
Legal Manager and employee of the appellant - insurance company
vide Exh.24 and established that the driver of the offending Truck
namely Ajitkumar Sudarshan Yadav was driving the Truck without
any driving license and thus has breached the terms and conditions
of the insurance policy. Hence, she has requested to allow the
appeal.
[4.1] She has alternatively submitted that in the event of passing
an order of Pay and Recover, as the owner failed to step into the
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witness box, though served and has not disclosed the fact about
license though he is duty bound and thus, the insurance company
has proved the defence. Hence, she has requested to pass an order
of Pay and Recover the amount of compensation from the owner of
the offending vehicle. She has relied on the decision of the Hon'ble
Supreme Court in the case of Pappu and Others vs. Vinod Kumar
Lamba and Another reported in (2018) 3 SCC 208 and argued that
if the offending vehicle is driven by unauthorized person or having
no any valid or effective driving license, then the insurance
company is required to be exonerated and said defence is available
to the insurance company which is already pleaded and proved by
the insurance company.
[5.0] Learned advocate Mr. Nishit Bhalodi appearing for the
original claimant has opposed the appeal on the ground that the
original claimant is a third party who has nothing to do with the fact
as to whether the driver of offending vehicle was holding valid and
effective license or not. He has further submitted that the learned
Tribunal has properly appreciated the evidence and no any evidence
is produced before the learned Tribunal with regard to the fact that
the license was fake and defence is also not proved. Hence, original
claimant is entitled to get the compensation as awarded by the
learned Tribunal. Hence, he has requested to dismiss the present
appeal.
[6.0] As the appellant - original opponent No.2 has not challanged
the impugned judgment and award on the ground of quantum of
compensation or on any other ground but only the question of
"fabricated license" of the driver of offending vehicle Truck is
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raised, present appeal is considered in narrow compass.
[7.0] Having heard learned advocate appearing for the respective
parties and perusing the evidence on record, it appears that on the
date of accident, the driver of the offending vehicle was having no
any valid or effective license. In order to prove the said defence, the
insurance company has examined one Devangbhai Parikh, Legal
Manager of appellant - insurance company at Exh.24, who has
stated that the offending Truck was being driven by the driver
Ajitkumar Yadav, at the time of accident, without holding valid and
effective license and thus, he has committed breach of terms and
conditions of the insurance policy. If we peruse the evidence of
said witness, more particularly his cross-examination, it appears
that he has stated that he was not having the personal knowledge
about the evidence as he is serving with the appellant - insurance
company only since last 3 years and has further admitted that he
cannot give opinion regarding the driving license and he has further
stated voluntarily that he cannot say as to whether the driving
license was fake or not. Further, he has admitted that neither he
nor his company has given any notice to the driver or the owner of
the offending Truck to produce the driving license.
[7.1] Perusing the said evidence, the learned Tribunal come to the
conclusion that merely production of document or evidence at
Mark 5/2 would not be helpful as the insurance company has failed
to prove that on the date of accident, Ajitkumar Yadav - driver of
the offending vehicle Truck was not having any valid or effective
license. To prove the said fact, the insurance company has not led
any reliable evidence from the office of the Regional Transport
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Office (RTO) or elsewhere. In view of above, merely to plead in the
written statement itself would not amount to defence and he who
asserts has to prove the fact and in absence of any material to
establish that the driver of the offending vehicle was not holding
valid and effective license on the date and time of accident, the
insurance company cannot be exonerated and learned Tribunal has
rightly saddled the insurance company with the liability to pay the
compensation and no error is committed by the learned Tribunal.
[7.2] So far as the authority relied on by the learned advocate for
the appellant - insurance company in the case of Pappu and Others
(Supra) is concerned, the defence is available to the insurance
company but at the same time, burden to prove the defence is also
on the insurance company and in the said authority it is clarified as
to how the burden of proof is to be established and rebutted.
Herein, in the case on hand, the insurance company has pleaded in
the written statement that on the date of accident, no effective or
valid driving license was there and thus there is a fundamental
breach of the policy condition, which is required to be proved by
the insurance company by leading evidence. If the insurance
company succeeds in establishing the said defence then the
insurance company is entitled to be exonerated or to get the order
of Pay and Recover from the owner of the vehicle. In absence of any
such evidence, the authority relied on by the learned advocate for
the appellant woule not avail any assistance to the appellant and
hence, no case for passing of order of Pay and Recover is made out.
[7.3] Even otherwise, in case of fake driving license, owner of
vehicle can, under no circumstances, have any duty to make an
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inquiry with regard to genuineness of driving license and mere fact
that the driving license was fake per se would not absolve the
insurer. In this regard, reference is required to be made to the
decision of the coordinate Bench of this Court in the case of
Reliance General Insurance Co. Ltd. vs. Somabhai Chaganbhai
Parmar reported in 2024 (2) GLR 1371 and decision of the Hon'ble
Supreme Court in the case of Rishi Pal Singh vs. New India
Assurance Co. Ltd. reported in 2022 ACJ 1868 wherein it has been
held that the owner of the vehicle is expected to verify the driving
skills of the driver before appointing him and once he is satisfied
with that the driver is competent to drive the vehicle, he is not
expected to verify the genuineness of the driving license of the
driver. In this regard, reference is required to be made to the
decision of the Hon'ble Supreme Court in the case of Iffco Tokio
General Insurance Co. Ltd. vs. Geeta Devi and Ors. reported in
2023 SCC OnLine SC 1398.
[8.0] In wake of aforesaid conspectus, the impugned
judgment and award passed by the learned Tribunal do not call for
any interference by this Court and the appeal fails in view of the
fact that the appellant - insurance company has failed to prove the
fundamental breach of the terms and conditions of the insurance
policy which can lead to exoneration of the insurance company and
hence, present First Appeal stands dismissed.
[9.0] The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimant after fixing apportionment, if not
already fixed, by account payee cheque / NEFT / RTGS, after proper
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verification and after following due procedure.
[9.1] While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
[9.2] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
