Satishbhai Natubhai Baria vs Sartanbhai Gulsinh Rathva on 20 January, 2026

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                             C/FA/441/2020                                         JUDGMENT DATED: 20/01/2026

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 441 of 2020

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

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                                    Approved for Reporting                         Yes           No

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                                                SATISHBHAI NATUBHAI BARIA
                                                          Versus
                                             SARTANBHAI GULSINH RATHVA & ANR.
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                       Appearance:
                       MR KK THAKKAR(2834) for the Appellant(s) No. 1
                       MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 2
                       MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 2
                       SERVED BY RPAD (N) for the Defendant(s) No. 1
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                         CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

                                                               Date : 20/01/2026

                                                               ORAL JUDGMENT

1. The captioned appeal is filed against the impugned judgment and award dated 07.09.2019, passed by learned Motor Accident Claims Tribunal (Auxiliary), Panchmahals at Halol in MACP No.2618/2017, whereby the learned Tribunal had partly allowed the claim petition and awarded a sum of Rs.2,91,525/- along with interest at the rate of 9% per annum from the date of filing of claim petition till its realization. While fastening the liability, the learned Tribunal has exonerated the insurance company from satisfying the impugned judgment and award.

2. Being aggrieved and dissatisfied with the impugned judgment and

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award, the appellant herein challenged the impugned judgment and award on the ground that the insurance company was exonerated from satisfying the award.

3. At the outset, Mr. K.K. Thakkar, learned counsel for the appellant submitted that the claimant is a third party and he sustained the injuries owing to the negligence of driver-cum-owner of Chhakdo Rickshaw bearing registration no.GJ.17.TT.8273. He further submitted that being a third party, the learned Tribunal could have directed the insurance company to first satisfy the award and thereafter, recover the same from the driver-cum-owner of the said Chhakdo Rickshaw. In support of his contention, learned counsel for the appellant placed the reliance upon the judgment of Hon'ble Apex Court rendered in the case of National Insurance Company Ltd. Vs. Swaran Singh & Ors., reported in 2004 (1) G.L.H. 691, Mani Venkatesh S/O Palpandrum Vs. M/s. ICICI Lombard General Insurance Co. Ltd. & Ors., passed in Civil Appeal No.8526 of 2018, Singh Ram Vs. Nirmala, reported in 2018 ACJ 1264 and New India Assurance Co. Ltd. Vs. Manjit Kaur, reported in AIR 2004 SC 2864.

4. On the other hand, Mr. Rushang D. Mehta, learned counsel appearing on behalf of respondent no.2/insurance company vehemently submitted that at the time of accident, the driver-cum-owner of the Chhakdo Rickshaw bearing registration no.GJ.17.TT.8273 was not holding the valid driving license to drive the said Chhakdo Rickshaw. He further submitted that in order to prove its defense, the insurance company has examined the driver-cum-owner of Chhakdo Rickshaw at Ex.35. In his examination-in-chief, he has admitted that at the time of accident, he was not having a valid driving license to drive the said

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Rickshaw. In view of the evidence available on record, the learned Tribunal has rightly exonerated the insurance company from satisfying the award. Learned counsel for respondent no.2/insurance company further submitted that even otherwise, this Court has no power to pass the order of pay and recover and only the Hon'ble Apex Court can pass such order in exercise of its power under Article 142 of the Constitution of India. In support of his contention, learned counsel for respondent no.2 placed the reliance upon the judgment rendered by the Coordinate Bench in First Appeal No.1278/2010, titled as "National Insurance Company Versus Laxmiben Ramanbhai Patel 2 other(s)", whereby in the similar facts and circumstances, the Coordinate Bench has exonerated the insurance company from satisfying the award. Learned counsel for respondent no.2/insurance company also placed the reliance upon the judgment of Hon'ble Apex Court rendered in the case of Balu Krishna Chavan Vs. The Reliance General Insurance Company Limited and Ors., reported in 2023 (1) TAC 130. Placing the reliance upon the aforesaid judgment, learned counsel for the insurance company submitted that the present appeal deserves to be rejected.

5. Having considered the submissions of the learned counsels for the parties and having gone through the record, it is to be noted that considering the controversy involved in the present case and for the sake of brevity of the judgment, the facts narrated in the petition and the written statement are not reproduced herein. It is not in dispute that at the time of accident, the driver-cum-owner of the Chhakdo Rickshaw was not having the valid driving license to drive the said Chhakdo Rickshaw. Now, in these facts and circumstances as to whether the order of pay and recover can be passed by this Court. It has been argued on behalf of the appellant that the offending vehicle was duly

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insured by respondent no.2 at the relevant point of time. The insurance policy of the vehicle is also proved at Exh.36. Perusal of the policy transpires that the said policy commenced with effect from 21.11.2014 and valid till midnight of 20.11.2015. The accident in question occurred on 09.04.2015. Thus, at the time of accident, the vehicle was duly insured by the respondent no.2/insurance company. In case of Swaran Singh (supra), the Hon'ble Apex Court in para no.108(x) has held as under:-

"108(x) Where on adjudication of claim under the Act, the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub- section (3) of Section 168 of the Act, The insurer fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal."

6. Further in case of Singh Ram (supra), the Hon'ble Apex Court where the insured did not hold the valid driving license at the time of accident, in para 8 observed as under:-

"8 In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away

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from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge."

7. The issue as to whether the learned Tribunal can pass the order of pay and recover or the question falling for consideration before the Hon'ble Apex Court as to whether the High Court was right in observing that only Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India, can pass the order of pay and recover even in respect of third party claims. The Hon'ble Apex Court in Mani Venkatesh (supra) observed as under:-

"---The issue raised in this appeal is squarely covered by the decision of this Court rendered in the case of Shamanna & Anr. Vs. The Divisional Manager, The Oriental Insurance Company Ltd. & Ors., reported in (2018) 9 SCALE 456. Since the issue is covered by the aforesaid judgment, the impugned judgment passed by the High Court is set aside and the appeal is allowed. The first respondent/insurance company shall pay the compensation amount along with the accrued interest within a period of six weeks from today and the insurance company shall recover the same from the owner or the driver of the vehicle as held in Oriental Insurance Company Ltd. Vs. Shri Nanjappan & Ors., reported in (2004) 13 SCC 224."

8. Now, coming to the case on hand, there is no iota of doubt that

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the learned Tribunal or the High Court is vested with the power to issue the direction to the insurance company to first satisfy the award and then recover the same from the owner and the driver of the offending vehicle. So far as the judgment relied upon by the learned counsel for the insurance company rendered in the case of Laxmiben Ramanbhai Patel (supra) delivered by the Coordinate Bench of this Court is not in consonance with the judgment delivered by the Full Bench of Hon'ble Supreme Court rendered in the case of Swaran Singh (supra), Singh Ram (supra) and Division Bench of Hon'ble Apex Court rendered in the case of Mani Venkatesh (supra), therefore, the captioned appeal deserves to be allowed and accordingly, the impugned judgment is modified to the aforesaid extent. The insurance company shall deposit the awarded amount along with interest within a period of six weeks from today. After satisfying the award, the insurance company shall be at liberty to recover the same from the owner-cum-driver of the offending Chhakdo Rickshaw by way of filing the execution petition before the learned Tribunal concerned.

9. Upon depositing of said amount, the learned Tribunal shall disburse the said amount to the original claimant after deducting deficit of Court fee, if any, after due verification. The amount, if any, lying deposited with the registry of this Court, the same shall be transmitted to the learned Tribunal concerned forthwith. No order as to costs.

10. Record & Proceedings, if any, be sent back to the learned Tribunal concerned.

(MOOL CHAND TYAGI, J) HARSHIT