Iffco Tokio General Insurance ... vs Surendra (2023:Rj-Jd:28031)
2023 Latest Caselaw 6793 Raj

Citation : 2023 Latest Caselaw 6793 Raj
Judgement Date : 4 September, 2023

Rajasthan High Court - Jodhpur

Iffco Tokio General Insurance ... vs Surendra (2023:Rj-Jd:28031) on 4 September, 2023

Bench: Madan Gopal Vyas

[2023:RJ-JD:28031]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2099/2018 Iffco Tokio General Insurance Company Limited, Iffco House, Nehru Place, New Delhi Through Its Authorized Representative.

----Appellant Versus

1. Surendra S/o Phularam Vishnoi, Batwari (Rotu), Tehsil Jayal, District Nagaur. Presently Residing At Opposite Government I.t.i., Shastri Nagar, Nagaur.

2. Makbool S/o Mohammad Ramjaan, Vyapariyon Ka Mohalla, Befor Gandhi Chowk, Nagaur. (Driver)

3. Imran S/o Late Noor Mohammad, Loharpura, Nagaur.

         (Owner)
                                                                 ----Respondents


For Appellant(s)           :    Mr. Jagdish Vyas
For Respondent(s)          :    Mr. Lal Singh Rathore, for respondent
                                nos. 2 & 3


           HON'BLE MR. JUSTICE MADAN GOPAL VYAS
                                 Judgment
04/09/2023

The present civil miscellaneous appeal has been preferred by

the Appellant-Insurance Company under Section 173 of the Motor

Vehicles Act, 1988 against the judgment and award dated

30.04.2018 passed by the learned Motor Accident Claims Tribunal,

Nagaur (hereinafter referred to as the learned Tribunal) in Claim

Case No. 19/2015 (CIS No. 71/2015) whereby the learned

Tribunal partly allowed the claim petition and awarded Rs.

37,100/- as compensation.

2. Briefly stated, the facts in a nutshell giving rise to the

present appeal are that on 02.11.2014, the injured Surendra

(claimant-respondent no. 1 herein) was hit by an auto-rickshaw

bearing registration no. RJ 21 PA 2198 which was being driven by

one Makbool (respondent no. 2 herein). Claimant-respondent no.

[2023:RJ-JD:28031] (2 of 4) [CMA-2099/2018]

1 received injuries which resulted into his permanent disablement.

A claim petition was filed, inter alia claiming compensation to the

tune of Rs. 48,91,000/-. The learned Tribunal partly allowed the

claim petition and awarded Rs. 37,100/- as compensation to the

claimants while holding the Appellant-Insurance Company and

respondent nos. 2 and 3 (driver and owner) jointly and severally

liable.

3. Learned counsel appearing for the Appellant-Insurance

Company submits that the learned Tribunal has not considered the

material available on record and has wrongly passed the

impugned judgment and award holding that the appellant-

Insurance Company too is liable to indemnify the award amount in

addition to respondent Nos 2 & 3. It is further submitted that as

per the policy document, the insurance policy covers the use of

vehicle only under a valid permit. It is submitted that at the time

of the accident, the auto-rickshaw did not have any valid permit

and thus, there was a violation of policy condition. The learned

Tribunal has not given any finding on the fact that whether the

auto-rickshaw had any valid permit or not at the time of the

accident. Hence, the judgment and award passed by the learned

tribunal is contrary to law and cannot be sustained. Lastly, it was

prayed that the judgment and award passed by the learned

Tribunal may be quashed and set aside and the Appellant-

Insurance Company be exonerated from its liability. In support of

his contentions, learned counsel relied upon the judgment of

Hon'ble Supreme Court in Amrit Paul Singh & Anr. v. Tata AIG

General Insurance Company Ltd & Ors. reported in (2018) 7

SCC 558.

[2023:RJ-JD:28031] (3 of 4) [CMA-2099/2018]

4. Per contra, learned counsel for the respondents no. 2 & 3

opposed the prayer made by the learned counsel for the appellant-

Insurance Company. It was submitted that the judgment and

award passed by the learned Tribunal is well reasoned and thus,

warrants no interference.

5. I have heard the arguments advanced by the parties and

perused the impugned judgment and material available on record.

6. In para 19 of the impugned judgment, the learned Tribunal

gave a finding that as per the statements of witness of Appellant-

Insurance company, there was no violation of any policy condition.

In para 18, however, it has been mentioned that the witness-

Wasim Khan in his chief-examination has categorically stated that

at the time of accident, the vehicle did not have any valid permit

and thus the insurance company cannot be held liable. However,

nothing has been brought on record by the insured to suggest that

the auto-rickshaw had a valid permit at the time of accident. In

such circumstances, it is not just and proper to fasten the liability

to pay the compensation on the Appellant-Insurance Company.

7. In Amrit Paul Singh (supra), the Hon'ble Supreme Court,

considering similar aspect of the matter, has applied the principle

of 'pay and recover' and has directed the insurance company to

pay the compensation and recover the same from owner and

driver of the offending vehicle. The relevant portion of the

aforesaid judgment is reproduced here as under:

"24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have

[2023:RJ-JD:28031] (4 of 4) [CMA-2099/2018]

been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 : (2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and other cases pertaining to pay and recover principle."

8. In view of the above discussion, the present appeal is

allowed. The impugned judgment and award dated 30.04.2018

passed by the learned Tribunal in Claim Case No. 19/2015 (CIS

No. 71/2015) is modified to the extent that the Appellant-

Insurance Company shall pay the compensation to the claimants

and thereafter shall be at liberty to recover the same from the

respondent nos. 2 & 3.