Gujarat High Court
The United India Insurance Company ... vs Dashrathsinh Dolubha Jadeja on 6 August, 2024
NEUTRAL CITATION
C/FA/3116/2022 ORDER DATED: 06/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3116 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2022
In R/FIRST APPEAL NO. 3116 of 2022
With
R/FIRST APPEAL NO. 3117 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2022
In R/FIRST APPEAL NO. 3117 of 2022
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THE UNITED INDIA INSURANCE COMPANY LIMITED
Versus
DASHRATHSINH DOLUBHA JADEJA & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR AB MUNSHI(1238) for the Defendant(s) No. 2,3
MR PREMAL S RACHH(3297) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 06/08/2024
COMMON ORAL ORDER
ORDER IN CIVIL APPLICATIONS:-
Considering the averments made in the application and taking into account the submissions made at the bar, the present applications, which are filed for production of addition evidence, are allowed.
ORDER IN FIRST APPEALS:-Page 1 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024
NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined
1. This First Appeals are filed by the appellant-insurance company under Section 173 of the Motor Vehicles Act, 1988 (`MV Act' for short), being aggrieved and dissatisfied with the judgment and award dated 28.10.2021 passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP Nos.129 of 2014 and 130 of 2014, whereby the claim petition of the claimant/s was partly allowed and the original opponents were ordered to pay the amount of compensation of Rs.1,28,521/- and Rs.19,06,100/- along with proportionate costs and interest thereon at the rate of 9% p.a. from the date of filing till realization.
2. The brief facts leading to filing of this appeal are such that on 16.06.2013 at 9.30 a.m. in the morning the deceased and injured persons namely, Dolubha and Dashrathsinh were returning from T.P.S. Sikka to Mungni on Motorcycle, where applicant-Dashrathsinh was driving Motorcycle and deceased Dolubha was sitting as a pillion rider in the Motorcycle, when they reached near Mungni village, the applicant-
Dashrathsinh had parked his Motorcycle on left side, even though the Opponent No.1 drove his vehicle Hydro Crane bearing Registration No.GJ-6-AB-8196 and came from wrong side with an excessive speed and in negligently manner and put human life endanger and caused an accident, resulting into the grave accidental injuries to the applicants; deceased Page 2 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined Dolubha succumb to the said vehicle injuries and accident occurred due to sole negligence on the part of opponent No.1. In this connection the offence registered which carries crime Registration No. 162 of 2013 in Panch "B" Police Station against the driver-opponent No.01. Therefore, the applicants have filed the present Claim Petition claiming compensation from the Opponents herein that is driver, owner and Insurance Company of Hydro Crane.
3. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above and by making liable all the parties. 3.1 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant for enhancement. 3.2 Heard learned advocates for the respective parties. 4.1. Learned advocate for the appellant/s in respective appeals has submitted that the Tribunal has committed error in passing the impugned judgment and award. It is submitted that the appellant insurance company is not liable to pay compensation as the driver of Crane did not have Page 3 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined valid license to drive the vehicle on the date of accident. Furthermore, it is submitted that the Tribunal has not considered the fact the driver of crane did not have valid license to drive the crane on the date of accident. Therefore as per various authorities of the Hon'ble Supreme Court, the insurance company had no liability to pay any compensation; The driver only had LMV license to drive the LMV type vehicles. It is submitted that the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Respondent:
Vidhyadhar Mahariwala and Ors. reported in AIR 2009 SC 208, whereby it has been held that "Motor Vehicle s Act, 1988-S. 173 Insurer liability driver did not have valid licence on date of occurrence held, insurer will have no liability in that case claimant can recover amount from respondent no.
2-appeal allowed." Hence it is quite clear that only the owner has responsibility to pay the compensation as there is breach of provisions of law. It is submitted that Sec. 3 of the Motor Vehicles Act herein referred as "Act" states that "(1) No person shall drive a motor vehicle in any public place unless he holds a effective driving license issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motorcab or motorcycle] hired for his own use or rented under any scheme made under sub-section (2) of section 74 unless his driving license specifically entitles him to do so." Therefore on this ground Page 4 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined alone the claim petition should have been dismissed qua the appellant. It seems that the contention was raised by the appellant. However the license copy was inadvertently not filed with the Ld. Tribunal. The appellant may move a separate application to produce the license on record. Even otherwise the award of the Ld. Tribunal is arbitrary, illegal, unjust and deserve interference by this Hon'ble Court. He, therefore, submitted that this appeal be allowed on the point of negligence.
5. Per contra, learned advocates for the respondents have submitted that the award of the learned Tribunal is just and proper and there is no need of any interference by this Court. They submitted that the learned Tribunal has calculated the quantum on the basis of the principles laid down in the various judgments of the Hon'ble Apex Court and, therefore, there is no need for interference of this Court in the impugned judgment and award. Even on the point of negligence, the learned Tribunal has relied on the oral and documentary evidence produced before it and came to the conclusion that the truck driver was negligent in driving the vehicle. In nutshell, they submitted that the impugned judgment and award is just and proper and therefore, this appeal may be dismissed.
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6. I have gone through the record and proceedings called for from the learned trial Court and also perused the impugned judgment and award.
7. It transpires that in the present case, learned advocate for the appellant has raised objection on the ground of negligence aspect only.
8. A reference to the following decisions would be fruitful at this stage:
A. In the case of Shamanna v. Oriental Insurance Co.
Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case Page 6 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that : (SCC p. 226, para 8) "8. ... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if Page 7 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined the dispute between the insurer and the owner was the subject- matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer." B. In the case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, it is held in paragraphs 11 to 16 as under:
"11. In reply, the learned counsel for the respondents (insurance companies) supported the impugned order and contended that no case is made out to interfere in the impugned judgment. It was his submission that once it is held and rightly that the insurance company is not liable because the victims were travelling in the offending vehicle as "gratuitous passengers", there did not arise any occasion to pay the awarded sum to the claimants by the insurance company and nor the principle "pay and recover" could be applied against the insurance company in such circumstances thereby making them liable to pay the awarded sum to the claimants.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellants (claimants).
13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent 3) to pay the awarded sum to the appellants and then to recover the Page 8 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.
14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two-
Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] , National Insurance Co. Ltd. v. Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] , National Insurance Co. Ltd. v. Kaushalaya Devi [National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467] , National Insurance Co. v. Roshan Lal [National Insurance Co. Ltd. v. Roshan Lal, (2017) 4 SCC 803] and National Insurance Co. Ltd. v. Parvathneni [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] .
15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 :
(2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [Saju P. Paul v.
National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" Page 9 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024
NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under :
(Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
***
26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 :
2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver Page 10 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
C. In the judgment in the case of Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755, the Hon'ble Apex Court has held in paragraph 10 as under:
"10. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the claimant(appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this court in National Page 11 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined Insurance Co.Ltd. V.Swaran Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh Kumar Singh, 2017 ACJ 1031 (SC). In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2, Appellant may, therefore, succeed in getting relief of direction to respondent No.2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
9. I have considered the following submissions of learned advocate for the appellant insurance company, as under:
"It is submitted that the appellant insurance company is not liable to pay compensation as the driver of Crane did not have valid license to drive the vehicle on the date of accident. Furthermore, it is submitted that the Tribunal has not considered the fact the driver of crane did not have valid license to drive the crane on the date of accident. Therefore as per various authorities of the Hon'ble Supreme Court, the insurance company had no liability to pay any compensation; The driver only had LMV license to drive the LMV type vehicles. It is submitted that the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Respondent: Vidhyadhar Mahariwala and Ors. reported in AIR 2009 SC 208, whereby it has been held that "Motor Vehicle s Act, 1988-S. 173 Insurer liability driver did not have valid licence on date of occurrence held, insurer will have no liability in that case claimant can Page 12 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined recover amount from respondent no. 2-appeal allowed."
Hence it is quite clear that only the owner has responsibility to pay the compensation as there is breach of provisions of law. It is submitted that Sec. 3 of the Motor Vehicles Act herein referred as "Act" states that "(1) No person shall drive a motor vehicle in any public place unless he holds a effective driving license issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motorcab or motorcycle] hired for his own use or rented under any scheme made under sub-section (2) of section 74 unless his driving license specifically entitles him to do so." Therefore on this ground alone the claim petition should have been dismissed qua the appellant. It seems that the contention was raised by the appellant. However the license copy was inadvertently not filed with the Ld. Tribunal. The appellant may move a separate application to produce the license on record."
10. I have also considered the decision of the Hon'ble Apex Court in the case of Khenyei vs New India Assurnace Co. Ltd.& Ors. reported in 2015 (9) SCC 273, with respect to the pay and recover.
11. In view of the overall, I am of the opinion that in the present case, the principle of "Pay and Recover" is required to be invoked. The appellant - insurance company shall firstpay the entire awarded amount of compensation awarded Page 13 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024 NEUTRAL CITATION C/FA/3116/2022 ORDER DATED: 06/08/2024 undefined by the Tribunal along with enhanced amount, and thereafter, recover the same from other tort-feasor(s).
12. In view of the above, the present appeals are allowed to the aforesaid extent.
13. The impugned judgment and award dated 28.10.2021 passed by the Motor Accident Claims Tribunal (Aux.), Jamnagar in MACP Nos.129 of 2014 and 130 of 2014 are modified to the aforesaid extent.
14. The appellant - insurance company shall first pay the entire awarded amount of compensation awarded by the Tribunal along with enhanced amount, and thereafter, recover the same from other tort-feasor(s).
15. Rest of the award remains as it is. Modified decree be drawn accordingly.
16. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 14 of 14 Downloaded on : Tue Aug 13 20:32:59 IST 2024