Gujarat High Court
Heirs Of Decd Manubhai Zandurbhai ... vs Husainbhai Bhikhabhai on 11 August, 2025
NEUTRAL CITATION
C/FA/4451/2022 JUDGMENT DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4451 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE Sd/-
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Approved for Reporting Yes No
No
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HEIRS OF DECD MANUBHAI ZANDURBHAI GUJARIYA BAYABEN
MANUBHAI GUJARIYA
Versus
HUSAINBHAI BHIKHABHAI & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 11/08/2025
ORAL JUDGMENT
[1] The present First Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988'), being aggrieved and dissatisfied with the judgment and award dated 02.08.2019 passed by the 3rd Additional District Judge & M.A.C.T (Auxi.), Una, in M.A.C.P. No.733 of 2012 (veraval-Old MACP No.152/2009).
[2] By the said judgment and award, though the Tribunal has partly allowed the claim petition preferred by the present appellant - original claimant under Section 163A of 'the Act, Page 1 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined 1988', holding the appellant - original claimant entitled to recover an amount of Rs 2,92,500/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its actual realization with proportionate costs from the opponent Nos.1 and 2, however, has exonerated the opponent No.3 Insurance Company from its liability to pay such amount of compensation.
[3] The appellant - original claimant is also aggrieved by the quantum of compensation being determined on lower side. Hence, the present appeal at the instance of original claimant.- the appellant herein.
[4] In order to appreciate the controversy involved in the present appeal, appropriate would be to consider the manner in which the accident was alleged to have been occurred on 08.12.2007. The deceased was on his way to reach Kodinar by driving Bajaj Scooter bearing registration No.GJ-38-GUT-1950. It was contended before the Tribunal that the deceased was driving the said vehicle with moderate speed and on correct side of the road by following the traffic rules and regulations. However, one Hero Honda Motorcycle bearing registration No.GJ-11-JJ-3359, driven by original opponent No.1, in rash and negligent manner, dashed with the vehicle of the deceased, thus, resulting into the accident. The deceased had sustained fatal injuries and unfortunately, succumbed to such injuries. At the time of the accident, the deceased was aged about 50 years and was earning his livelihood by doing labour work and as contractor. Thus, the heir and legal representative of the deceased - original claimant Page 2 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined has approached before the Tribunal by preferring claim petition under Section 163A of 'the Act, 1988', which was registered as M.A.C.P.No.733 of 2012 (Veraval-Old MACP No.152/2009) before the M.A.C.T. & 3rd Additional District Judge at Una, District- Gir Somnath.
[5] The notice issued by the Tribunal was reported to have been duly served upon opponent Nos. 1 and 2 being the driver and owner of the vehicle - Hero Honda motorcycle, who have submitted their reply at Exhibit 27. The original opponent No. 3 being the Insurance Company of the second vehicle involved had also appeared before the Tribunal and had submitted their reply at Exhibit-48. The Insurance Company had raised specific defence that the driver of the vehicle involved was not holding valid and effective driving licence and have, thereby, disputed their liability.
[6] Noticing the object of 'the Act, 1988' and the scope of Section 163A of 'the Act 1988', the Tribunal had proceeded to examine the claim petition by holding that the application preferred under Section 163A is substantive in nature. Though the appellant-original claimant is not required to establish the negligency of the driver of the vehicle involved and such inquiry is foreign to the proceedings under Section 163A of 'the Act, 1988', however, so far as the amount of compensation is concerned, the same has to be in terms of the structural formula. The Tribunal, therefore, considering the foundational facts of the case, had determined the loss of dependency benefits to the tune of Rs. 2,88,000/- by considering schedule-II Page 3 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined appended to the provisions of Section 163A of 'the Act, 1988'. The Tribunal had further awarded an amount of Rs.2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate and has accordingly determined the total amount of compensation to the tune of Rs. 2,92,500/- with interest at the rate of 9% p.a. from the date of filing of claim petition till its actual realization.
[7] Having determined the total amount of compensation, the Tribunal, while considering the issue of liability, noticed that the advocate for the driver of the vehicle involved has submitted a pursis at Exhibit-53, wherein he had disclosed that the original opponent No.1-driver of the vehicle involved was not holding the driving licence at the time of accident. The Tribunal, having noted the aforesaid declaration, took into consideration the settled legal position, as relied upon by referring to the decision of this Court in the case of New India Insurance Co. Ltd. Vs. Harishbhai Dayabhai Bharaniya in R/First Appeal No.1909 of 2015, and had drawn conclusion that as the driver of the tort feasor was not holding any licence at all, the Insurance Company is required to be exonerated from its liability to pay the amount of compensation. Thus, while allowing the claim petition preferred under Section 163A of 'the Act 1988', though the claimants were held entitled to recover total amount of compensation of Rs 2,92,500/- with interest at the rate of 9% per annum from the date of filing of claim petition to its realization, the original opponent No.3- Insurance Company was exonerated from its liability to pay compensation.
Page 4 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined [8] Learned advocate Mr. Hemal Shah has appeared on behalf of the appellant - original claimant. The Coordinate Bench while considering the submissions of learned advocate for the appellant that the defence of no driving licence could not have been raised against the appellant and appropriate order of pay and recovery could have been passed by the Tribunal, vide order dated 21.02.2023 had admitted the appeal. The matter was thereafter notified on board from time to time for final hearing.
[9] Learned advocate Mr. H.G. Mazmudar has appeared on behalf of respondent No. 3- Insurance Company. The rule issued by this Court upon respondent Nos. 1 and 2 is reported to have been duly served. Noticing the issue raised in the appeal, the matter was peremptorily heard with the assistance of learned advocates on record for the respective parties.
[10] Learned advocate for the appellant, at the outset, has apprised about the limited controversy involved and has submitted that the Tribunal committed grave error in exonerating the respondent No.3 -Insurance Company from its liability to pay compensation without appreciating the settled legal position as laid down by the Hon'ble Supreme Court from time to time in this regard.
[11] The reliance was placed on the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. reported in (2004) 3 SCC
297. The attention of this Court was invited to the summary of findings as recorded in paragraph 110 of the aforesaid decision, Page 5 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined wherein, the Court has held that mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against the insured or the third party. Learned advocate had further submitted that it has been held that even where the insurer is able to prove the breach on the part of the insured with regard to the terms and conditions of the policy including holding of valid license, unless the said breach is fundamental which has contributed to the occurrence of the accident, the Court can proceed to issue appropriate direction to pay and recovery at the most. He has, therefore, submitted that the Tribunal ought to have, at the outset, examined as to whether the defence raised by the Insurance Company has been duly established by producing cogent material on record and having satisfied about the same, the Tribunal at the most could have issued the direction of pay and recovery. He has further submitted that there was no reason for the Tribunal to pass order exonerating the Insurance Company to pay the compensation.
[11.1] The attention of this court was also invited to the various decisions of the Hon'ble Supreme Court as well as this Court, which had followed the aforesaid principles. Appropriate would be to reproduce the relevant authorities as relied upon by the learned advocate for the appellant.
Kempaiah Vs. S.S. Murthy (2018) 12 SCC 706
Oriental Insurance Co. Vs. Zahrulnissa 2008 (12) SCC 385
Shamanna Vs. Oriental Insurance Co. Ltd. (2018) 9 SCC 650
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NEUTRAL CITATION
C/FA/4451/2022 JUDGMENT DATED: 11/08/2025
undefined
Iffco Tokio Vs. Babarbhai V Ghanchi First Appeal
(Gujarat High Court) No.1271 of 2011
Bhikhabhai Gandubhai Parnar Vs. First Appeal
Harjivanbhai Dhanjibhai Pitroda No.2722 of 2017
(Gujarat High Court)
New India Assurance Co. Ltd. Vs. First Appeal
Mukhtarbibi No.1550 of 2012
(Gujarat High Court)
[12] As regards the amount of compensation is concerned, learned advocate has fairly conceded at this stage that he is not pressing for enhancement.
[13] Per contra, learned advocate for respondent No.3 - Insurance Company has forcefully objected to the aforesaid submissions made by learned advocate for the appellant on the ground that ultimately, the Tribunal has entertained the claim petition preferred by the present appellant - original claimant under section 163A of 'the Act 1988'. The owner having not disputed their liability by preferring any separate appeal against the said impugned judgment and award, it does not lie in the mouth of the original claimant to raise such appeal, wherein the Insurance Company has been exonerated as according to learned advocate, the appellant - original claimant can always seek enforcement of award amount from the driver and owner of the insured vehicle who have otherwise been jointly and severally liable to pay the amount of compensation. He has, therefore, submitted that the present appeal at the instance of the original claimant raising the aforesaid issue is not required to be entertained.
Page 7 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined [14] As regards the controversy, the liability of the Insurance Company to pay compensation is concerned, learned advocate has once again invited my attention to the findings and reasons assigned by the Tribunal and has submitted that no error can be found with the approach of Tribunal in passing the impugned judgment and award exonerating the Insurance Company, noticing the fact that the driver of the insured vehicle was not holding any valid and effective driving license at the time of accident. He has further drawn my attention to the manner in which the accident was reported, to contend that because of the lack of the knowledge on part of the driver of the vehicle involved to drive the motorcycle, the same has contributed to the occurrence of accident. The complete absence of the driving license amounts to the fundamental and vital terms and conditions of the policy, and therefore, the Insurance Company cannot be saddled with the liability to pay the amount of compensation once the owner himself has defaulted in adhering to the terms and conditions of the policy.
[14.1] Learned advocate, in support of his submissions, had placed reliance upon the unreported decision of the Hon'ble Division Bench of this Court in the case of Mahmad Rafik Munnebhai Ansari Vs. Gujarat State Road Transport Corporation rendered in Civil Application No.801 of 2021 in R/First Appeal No.3173 with allied matters, dated 24.12.2021, more particularly para-12 onwards. The reliance was also placed upon unreported CAV judgment of the learned Single Judge of this Court in the case of New India Insurance Co. Ltd. Vs. Arjanbhai Hansrajbhai Dawariya & Ors. rendered in First Page 8 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined Appeal No.3599 of 2013, dated 11.03.2022, as also again unreported decision of the learned Single Judge of this Court in First Appeal No.1278 of 2010 in the case of National Insurance Company Vs. Laxmiben Ramanbhai Patel & ors. dated 15.7.2022. Learned advocate, referring to the relevant observations of the aforesaid decisions, had contended that once there is no license at all, the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra) and the judgments relied upon would not be applicable.
[14.2] In the aforesaid decision, the Court has, therefore, held that the Insurance Company cannot be held liable as there is clear fundamental breach of terms of the insurance policy and in view of the provisions of Sections 147 to 149 of 'the Act, 1988', the Insurance Company is required to be exonerated from its liability to pay the amount of compensation. Learned advocate has, therefore, urged this Court to dismiss the present appeal and upheld the impugned judgment and award passed by the Tribunal.
[15] I have given thoughtful consideration to the aforesaid submissions of the learned advocates appearing for the respective parties in light of the findings and reasons assigned by the Tribunal. I have also carefully perused the record and proceedings of the original claim petition. Admittedly, the original claim petition has been preferred by the widow of the deceased who unfortunately succumbed to the fatal injury sustained in motor vehicle accident. The original claim petition Page 9 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined has been preferred by the widow of the deceased under Section 163A of 'the Act, 1988'. The copy of the insurance policy of the Hero Honda motorcycle has been produced by the present respondent No.3 -Insurance Company before the Tribunal at Exhibit-49 along with the insurance policy, the copy of RC book has also been produced on record at Exhibit-50. Upon bare perusal of the aforesaid policy and the date of occurrence of accident, it is evident that the insurance policy was in force on the date of the occurrence of the accident.
[16] Looking to the submissions made by learned advocates appearing for the respective parties, the only limited point for determination which arises for consideration in the present appeal is as to whether the Tribunal committed any error in exonerating the respondent - Insurance Company from its liability to pay compensation under Section 163A of 'the Act, 1988', in the facts of the case and the evidence brought on record? The core contention which is raised for assailing the impugned judgment and award vis-a-vis the exoneration of respondent No.3 - Insurance Company from its liability is the total absence of the driving license.
[17] On appreciation of the various authorities relied upon by learned advocates appearing for the respective parties, in the opinion of this court, the aforesaid issue is no more res integra in view of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra). At the outset, it would be appropriate to revisit the summary of findings of the Hon'ble Supreme Court in the aforesaid decision which squarely addresses to the issue of the Page 10 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined license vis-a-vis liability of the Insurance Company, as recorded in para-109, which is reproduced hereunder:
"(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle;
the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would Page 11 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and Page 12 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the 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.
(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
[18] From the plain reading of the aforesaid remarkable findings of the Hon'ble Supreme Court, more particularly Clause-iii read with Clause-iv and vi, it is held that mere absence of the driving licence in itself is not the defence available to the insurer against the insured or the third parties. The Court has further observed that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of the negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. The Court has also observed that even where Page 13 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification, the insurer cannot avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Hon'ble Supreme Court has in fact further observed that the Tribunals are under obligation while conducting such proceedings in interpreting the policy conditions by applying "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of 'the Act, 1988'. Further, reading of the observation of the Hon'ble Supreme Court, more particularly, in Clause-x, indicates that even if 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), the Tribunal can direct the insurer to reimburse 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.
[18.1] As rightly pointed out by learned advocate for the appellant, the aforesaid decision of the Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra), has been reiterated on various occasions and followed so far.
[19] At this stage, it would be appropriate to consider the decision in the case of Kempaiah Vs. S. S. Murthy (supra). The Page 14 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined facts of the said decision suggest that the Tribunal had found the driver of the insured vehicle - lorry to be responsible for rash and negligence driving as well as holding the insurer jointly and severally liable to satisfy the award. In the appeal filed by the claimant/s, the High Court, though enhanced the amount of compensation, had arrived at conclusion that the driver of the transport vehicle involved in the accident did not have a license to drive heavy transport vehicle on the date of the accident. The High Court has, therefore, exonerated the insurer from its liability to pay the compensation awarded and made the owner of the lorry solely liable to satisfy the same. In the appeal before the Hon'ble Supreme Court, the Hon'ble Supreme Court took into consideration the aforesaid decision of National Insurance Company Limited vs. Swaran Singh & Ors. (supra) and observed that the aforesaid ratio laid down is in consonance with the object behind the enactment of 'the Act, 1988'. The Court therefore proceeded to direct the Insurance Company to satisfy the award as enhanced and with liberty to recover such amount from the owner of the insured vehicle. Similar view has also been taken by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Zahrulnissa (supra) and the learned Single Judge of this Court in the decision relied upon by the learned advocate for the appellant has followed the aforesaid principles in similar set of facts.
[20] Having noted the aforesaid legal position as regard the decisions relied upon by the learned advocate for the respondent are concerned, the same have been passed by the Division Bench of this Court or by the learned Single Judge of this Court Page 15 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined which though has referred to the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra) have refused to issue appropriate direction of pay and recovery by forming a view that the same cannot be followed in all cases without considering statutory provisions coupled with the factual details of evidence on record. The Court have noted that not holding valid driving license is quite different position than not having any driving license. However, in the opinion of this Court, the very reference to the observation of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra), it is categorically noted that even in absence of driving license, mere absence of driving license is not itself a defence available to the insurer against the insured or third party. Thus, the Court / Tribunal while applying aforesaid principles, in facts of the case, has to examine as to whether the Insurance Company has been able to prove that there was breach on part of the owner of the vehicle .
[21] Having held so, in the opinion of this Court, the view taken by the Tribunal while examining the issue of liability that the driver being the tort feasor not holding license at all and the Insurance Company is required to be exonerated, is erroneous as it misconstrued the aforesaid legal principles laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra), and is therefore hereby quashed and set aside. Merely because the counsel representing the driver of the vehicle involved has disclosed on pursis about not holding any license, was itself not Page 16 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined sufficient to draw further inference about owner of the vehicle having defaulted in inquiring. Considering the provisions of 'the Act, 1988' providing compulsory insurance of vehicles against third party risk which aims at extending relief by compensation to victims of accident caused by use of motor vehicles, at the most, the Tribunal ought to have issued directions of pay and recovery. However, in absence of any evidence being led by the Insurance Company about the insured -owner of the vehicle being guilty of negligence and having failed to exercise reasonable care in the manner of fulfilling the condition of the policy regarding use of the vehicles by duly licensed driver, there is no reason to consider alternative directions of pay and recovery, in the facts of the case.
[22] For the foregoing reasons, the present appeal is allowed. The impugned judgment and award dated 02.08.2019 passed by the 3rd Additional District Judge & M.A.C.T (Auxi.), Una in M.A.C.P. No.733 of 2012 (veraval-Old MACP No.152/2009), is hereby modified by holding the opponent No.3 - Insurance Company jointly and severally liable along with opponent Nos.1 and 2, to pay an amount of compensation to the tune of Rs.2,92,500/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its actual realization with proportionate costs.
[23] At this stage, learned advocate for the appellant - original claimant, under the instructions, has submitted that so far no award amount has been deposited with the concerned Tribunal and has therefore urged this Court to pass appropriate direction Page 17 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025 NEUTRAL CITATION C/FA/4451/2022 JUDGMENT DATED: 11/08/2025 undefined against the respondents herein - original opponents to pay such amount of compensation within the stipulated time frame.
[24] Noticing the aforesaid submission, respondent Nos.1 to 3 being held jointly and severally liable to pay amount of compensation, are hereby directed to deposit the entire award amount with the concerned Tribunal including the proportionate costs and interest within a period of 08 weeks from the date of receipt of this order. On deposit of the aforesaid award amount, the Tribunal shall be at liberty to proceed with the release / disbursement of the award amount in terms as it may determine within a period of two weeks thereafter, in favour of the original claimant subject to due verification. The Tribunal shall strictly adhere to the guidelines of the Hon'ble Supreme Court in this regard.
[25] With the aforesaid observations and directions, the present appeal stands disposed of as allowed in aforesaid terms. Registry is hereby directed to remit back the record and proceedings to the concerned Tribunal.
(NISHA M. THAKORE,J.) Lalji Desai Page 18 of 18 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Wed Aug 20 2025 Downloaded on : Fri Aug 22 23:14:45 IST 2025