Gujarat High Court
Jayminkumar Naginbhai Zala vs Girishbhai Budhabhai Sodha on 18 September, 2024
NEUTRAL CITATION
C/FA/3598/2023 ORDER DATED: 18/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3598 of 2023
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JAYMINKUMAR NAGINBHAI ZALA
Versus
GIRISHBHAI BUDHABHAI SODHA & ORS.
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Appearance:
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/09/2024
ORAL ORDER
1. The present appeal is filed by the appellant - claimant under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 29.7.2020 passed by the Motor Accident Claims Tribunal (Aux.), Kheda in Motor Accident Claim Petition No.101 of 2021, by which, the Tribunal has partly allowed the claim petition by awarding Rs.3,45,080/- with 7.5% p.a. interest to be paid to claimant/s, by the opponent nos.1 and 2 and the opponent no.3-insurance company was exonerated.
2. The facts of the present appeal are as under :
2.1 The claimants filed the claim petition stating that on 29.7.2020, the applicant/claimant was travelling by motorcycle Page 1 of 6 Uploaded by U. SRILATHA(HC00185) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:42:11 IST 2024 NEUTRAL CITATION C/FA/3598/2023 ORDER DATED: 18/09/2024 undefined and at 12.15 p.m., when he reached the place of incident, at that time the rickshaw which was owned and driven by the opponent no.1 came on wrong side as well as in rash and negligent manner and dashed with the motorcycle by which the claimant was going; due the claimant suffered injuries.
Therefore, the claim petition is filed for compensation. 2.2 The notices were served to the opponents, written statement was filed, issues were framed by the Tribunal. Oral as well as documentary evidence were led before the Tribunal. After hearing the submissions made by the rival parties, the Tribunal has partly allowed the claim petition(s) and awarded compensation as noted above. 2.3 Hence, the claimant has filed the present appeal before this Court.
3. Learned advocate for the appellant/claimant has raised the only ground in this appeal that the learned Tribunal exonerated the opponent no.3-insurance company on the ground that the driver of the rickshaw was not having valid licence to drive the rickshaw as the driving licence produced before the learned Tribunal was for driving motorcycle. He submitted that as the injured-claimant was a third party, as Page 2 of 6 Uploaded by U. SRILATHA(HC00185) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:42:11 IST 2024 NEUTRAL CITATION C/FA/3598/2023 ORDER DATED: 18/09/2024 undefined the rickshaw was insured with the insurance company and the policy was in existence on the date of accident, therefore the insurance company should have been ordered to pay the compensation and then it can recover the amount from the owner of the vehicle. He, therefore, submitted to allow the appeal by modifying the impugned judgment and passing the order of `pay and recover'.
3.1 In support of his submissions, he relied on the judgments in the cases of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, United India Insurance Co. Ltd., versus Pappu reported in 2012 ACJ 870 and the judgment dated 22.4.2022 passed in First Appeal No.1477 of 2015 .
4. Per Contra, learned advocate for the insurance company has submitted that the learned Tribunal has not erred in passing the impugned judgment and award, however, he prayed to pass appropriate order in the facts and circumstances of the present case.
5. I have considered the submissions made by the respective parties. I have perused the record and proceedings. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings of the parties before the Tribunal.
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6. The negligence and quantum are not challenged in this appeal. The only point raised is to pass the order of `pay and recover'. In this regard, the insurance company has examined its officer vide Exh.27, wherein in cross- examination, he has admitted that the injured-claimant was third party. Further, the insurance company has not examined the owner. Therefore, as per the avoidance clause, after paying the compensation to the claimant, insurance company can recover the same from owner. As the manifest object of the provisions of the MV Act is to ensure that the party, who suffers injuries due to the use of the motor vehicle, and may be able to get the damages for the injuries sustained/death and the claimants cannot suffer for the technicalities of whether the owner/insurance company should pay the amount. Though the insurance company is not liable to pay the amount and exonerated from the liability, as the vehicle is insured with the insurance company, the insurance company herein firstly shall pay the awarded amount of compensation to the applicants and then it shall have the right to recover the same from the driver-owner of the vehicle involved in the accident by resorting to appropriate remedies available under the law, in view of the ratio laid down by the Hon'ble Apex Court in number of cases and also in the judgments relied on by learned advocate for the Page 4 of 6 Uploaded by U. SRILATHA(HC00185) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:42:11 IST 2024 NEUTRAL CITATION C/FA/3598/2023 ORDER DATED: 18/09/2024 undefined appellant-claimant.
7. 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 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)."
Therefore, in view of the above, this appeal is required to be partly allowed.
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8. In view of above, the following order is passed. 8.1 The present appeal is partly allowed. 8.2 The impugned judgment and award dated 29.7.2020 passed by the Motor Accident Claims Tribunal (Aux.), Kheda in Motor Accident Claim Petition No.101 of 2021 is modified to the extent that the insurance company shall first pay the amount of compensation to the claimant/s and then it shall have the right to recover the same from the driver-owner of the vehicle involved in the accident by resorting to appropriate remedies available under the law. 8.3 The insurance company shall deposit the entire awarded amount with interest and proportionate costs before the concerned Tribunal within a period of four weeks from today. Thereafter, the entire amount deposited/lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant/s, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks thereafter. 8.4 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 6 of 6 Uploaded by U. SRILATHA(HC00185) on Fri Sep 20 2024 Downloaded on : Mon Sep 23 20:42:11 IST 2024