Gujarat High Court
Subhashrao Anandrao Pawar vs Ashokbhai Bhikhabhai Makwana on 30 November, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/642/2018 JUDGMENT DATED: 30/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 642 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
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SUBHASHRAO ANANDRAO PAWAR & 3 other(s)
Versus
ASHOKBHAI BHIKHABHAI MAKWANA & 2 other(s)
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Appearance:
MR MOHSIN M HAKIM for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 2,3,4
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE SERVED BY DS(65) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 30/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021
1. Feeling aggrieved and dissatisfied with the impugned judgement and award dated 7.10.2017 passed by the Motoar Accident Claims Tribunal (Aux.) Vadodara in MACP No.711 of 2012, the appellants - original claimants have preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (Act for short).
2. Heard Mr. Mohsin M. Hakim, learned advocate for the appellants and Mr. V.C.Thomas, learned advocate for respondent No.3 - Insurance Company.
3. Though served, no one appears for respondent Nos. 1 and 2.
4. This Court by an order dated 6.3.2018 was pleased to admit the matter and issued notice for final disposal. Though notices were served, as respondent Nos. 1 and 2 did not appear again, vide order dated 9.10.2019 fresh notice for final disposal was given. The endorsement on the board shows that though notice is served, no appearance is filed. Hence, both the learned advocates appearing for the parties were heard and the appeal is takenup for final disposal.
5. We have also perused the original records and proceedings. Following facts emerge from the record of the appeal.
5.1. That on 2.4.2012 while deceased Saket Subhashrao Pawar was proceeded towards Akashar Chowk at Vadodara from village Dabhasa for the work of his company on his Motorcycle bearing registration No.GJ-6-EL-0031 at about 11:30 a.m. a Page 2 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 truck being driven by respondent No.1 bearing registration No.GQB-6336 came with full speed, rashly and negligently and lost the control over his truck and came on wrong side and dashed with the motorcycle. Because of the accident, the deceased sustained injuries and succumbed to the injuries. An FIR came to be lodged with Vadodara Taluka Police Station being C.R. No.I-38/2012. The claim petition was filed under Section 166 of the Act being MACP NO. 711 of 2012.
5.2. It was the case of the appellant-claimants that the deceased was working as a Assistant Manager - Sale with Super Polymers and was drawing the salary of Rs.15,000/- p.m. and was infact earning total income of Rs.25,000/- p.m. The claimants adduced oral evidence by examining the mother of the deceased at Exh.57. The human resource executive of Super Polymers at Exh.63 and also relied upon plethora of documentary evidence.
Sr.No. Particulars Exh. Mark
Oral evidence:
1. Affidavit in form of examination-in-chief led 57
by the claimant no.2 - Kiran Subhashrao Pawar (Mother of the deceased).
2. Deposition of the claimants' witness namely 63 Ganpatbhai J. Parmar (HR-Executive of Super Polymers.) Documentary evidence:
1. Certified copy of the FIR/complaint regarding 21 the accident.
2. Certified copy of the Panchnama of the scene 22 of occurrence.
3. Certified copy of the inquest panchnama of the 23 deceased Page 3 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 4. True copy of P.M. Note of the deceased 24 5. Copy of R.C. Book of the offending Truck 25 No.GQB-6336.
6. Copy of Insurance Policy of the offending truck 26 No. GQB-6336.7. Copy of death certificate of the deceased 27 8. Copy of certificate issued by Swami 28
Vivekanand Kenra (Kanyakumari)
9. Original Mark-sheet of S.S.C. Examination 29 10. Original passing certificate of S.S.C. 30 Examinations
11. Original school leaving certificate of the 31 deceased
12. Copy of certificate issued by Vadodara couple 32 junior chamber for participating in open swimming competition by the deceased.
13. Copy of Certificate issued by Pious computer 33 education for completing the course of DOA by the deceased
14. Original Mark-sheet of H.S.C. Examination 34 15. Certificate of Participation issued by 35 M.S.University in the name of deceased
16. Original mark-sheet of B.Com issued by M.S. 36 University, Baroda.
17. Copy of certificate of insurance issued by ICICI 37 Prudential Life Insurance
18. Copy of renewal notice of the premium of Life 38 Insurance
19. Original appointment letter dated 04/08/2009 39 issued by Super Polymers
20. Pay slips of the deceased for the month of 40 to August-2011 to December-2011. 44 21. Copy of PAN Card of the deceased 45 22. Birth Certificate of the deceased 46 23. Copy of driving licence of the deceased 47 Page 4 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 24. Copy of passport of the deceased 48
25. Copy of R.C. Book of the motorcycle No. GJ- 49 06-EL-0031.26. Visiting card of the deceased 50
27. Certified copy of the compromise deed and 54 deposition of the claimant no.4-widow of the deceased recorded in Criminal Case No.915/2011
28. Certified copy of the judgement delivered in 55 Criminal Case No.915/2011
29. Affidavit filed by the claimant No.4 in the 56 present case.30. Wage Register for the month of Jan-2012 64
maintained by Super Polymers 31. Wage Register for the month of Feb-2012 65 maintained by Super Polymers
32. Wage Register for the month of March-2012 66 maintained by Super Polymers
6. The Insurance Company also examined one Ashokbhai Bhikhabhai Makwana, the driver of the offending truck at Exh.71 and another witness namely, Ramjibhai Karamsibhai Koli Patel (Junior clerk - RTO, Anand). The Insurance Company also relied upon the documentary evidence such as driving licence of respondent No.1 at Exh.73, copy of the screen report of the offending vehicle at Exh.77, true copy of extract of driving licence of respondent No.1 issued by licensing authority, Anand at Exh. 78 and copy of insurance policy of the offending truck No. GQB-6336 at Exh.80.
7. The Tribunal after appreciating the oral and documentary evidence on record came to the conclusion that the truck involved in the accident was a heavy good vehicle and not a light motor vehicle considering the unladen weight of the Page 5 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 vehicle as per the RC Book. On basis of other evidence both oral as well as documentary evidence, the Tribunal recorded that the driver of the truck was holding transport licence since 11.7.2000 but the same has expired and it was renewed after the accident w.e.f. 26.7.2012. The Tribunal after appreciating the evidence in form of copy of the driving licence has further come to the conclusion and held that the driver of the truck had a valid licence of non-transport LMV which was valid upto 5.9.2000.
8. While partly allowing the claim petition, the Tribunal awarded total compensation of Rs.31,85,000/- with 9% interest. However, as respondent No.1 - driver of the truck did not have valid and effective licence to drive heavy transport vehicle, the Tribunal was pleased to exonerate respondent No.3
- United India Insurance Company Ltd. as the Tribunal has believed that there was breach of condition.
9. Being aggrieved by the same, the claimants have filed this appeal.
10. Mr. Mohsim Hakim, learned advocate appearing for the appellants has raised singular ground to the effect that the Tribunal has committed an error in not passing the order of "pay and recovery". Mr. Hakim, learned advocate contended that the Tribunal has wrongly come to the conclusion that it did not have jurisdiction to do so. Relying upon the decisions in the case of Shamanna and Anr. v. Divisional Manager, Oriental Insurance Co. Ltd. & Ors. reported in (2018) 9 SCC 650 and in the case of Kempaiah & Ors. v. S.S. Murthy & Anr. reported in (2018) 12 SCC 706, Mr. Hakim, learned advocate Page 6 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 contended that in similar facts and circumstances, the Hon'ble Apex Court has passed order of pay and recover from the owner of the offending vehicle. Mr. Hakim contended that the ratio laid by the Hon'ble Apex Court in both the above cases squarely covers the case on hand and in this case also though the Insurance Company may not be held directly liable, an order of pay and recover is required to be passed. On the aforesaid ground, it was contended that the award be modified to that extent while partly allowing the appeal.
11. Per contra, Mr. V.C.Thomas, learned advocate appearing for the Insurance Company has contended that the judgement relied on would not apply to the facts of this case. Mr. Thomas, learned advocate contended that the Tribunal itself has rightly recorded that the driver had only non-transport light motor vehicle licence and, therefore, he contended that the Tribunal has correctly exonerated the Insurance Company and made owner and driver liable for the claim that is awarded by the Tribunal. Mr. Thomas, learned advocate contended that the appeal deserves to be dismissed as the same is meritless.
12. No other and further submissions/contentions have been made by the learned advocates for the respective parties.
13. Before reverting to examine the issue involved in this appeal, it would be appropriate to note that the appellants - original claimants do not dispute the quantum of compensation awarded by the Tribunal. Mr. Hakim, learned advocate appearing for the appellant has submitted that the appellants do not challenge the quantum of compensation granted.
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14. The issue which arises in this appeal is whether in absence of valid and subsisting licence in facts of this case, can the Insurance Company be made liable to pay first and recover from the owner. The Hon'ble Apex Court in the case of Shamanna & Ors. (supra) has observed as under:
"7. As per the decision in Swaran Singh case, onus is always upon the Insurance Company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case.
8. The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700, wherein this Court held that "the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured". The same Page 8 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 principle was reiterated in Prem Kumari v.
Prahlad Dev and others (2008) 3 SCC 193.
9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243, the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the Insurance Company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle.
10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56, the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for "agricultural works", the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the Insurance Company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the Insurance Page 9 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 Company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor.
11. In the present case, to deny the benefit of 'pay and recover', what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v.
Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing Insurance Company to pay the compensation amount even though Insurance Company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that "if the Insurance Company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle". The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case.
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12. Since the reference to the larger bench in Parvathneni case 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 followed in Laxmi Narain Dhut 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 and Laxmi Narain Dhut 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 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.
13. 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 and others (2004) 3 SCC 224 where this Court held that "....that for Page 11 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 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 concerned Executing Court as if 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."
14. In the result, the impugned judgment of the High Court insofar as enhancement of the compensation to Rs.4,94,700/- is affirmed. Insofar as direction of the impugned judgment directing the appellants/claimants to recover the compensation from the owner of the vehicle is set aside and the appeal is partly allowed. The first respondent Insurance Company shall pay the enhanced compensation to the appellants/claimants along with the accrued interest and the Insurance Company shall recover the same from the owner of the vehicle. No costs."
Similarly in Kempaiah (supra) has observed as under:
"10. In National Insurance Co. Ltd. v. Swaran Singh 2004 ACJ 1 (SC), this Court has, inter alia, observed as follows:Page 12 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022
C/FA/642/2018 JUDGMENT DATED: 30/11/2021 102 (iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has 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 licenced driver or one who was not disqualified to drive at the relevant time.
11. In para 102 (viii) of the report in Swaran Singh, 2004 ACJ 1 (SC), it has also been held that the same would be the position in case the driver of the offending vehicle had a learners licence.
The ratio of the law laid down by this Court in Swaran Singh (supra), is in consonance with the object behind the enactment of the Motor Vehicles Act, 1988. Taking into account the same and the decision of this Court in Swaran Singh (supra), we are of the view that in the facts of the present case the insurer, Respondent No. 2 (Oriental Page 13 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 Insurance Co. Ltd.), should be directed to satisfy the award as enhanced by us and thereafter would be at liberty to recover the said amount from the owner of the lorry (transport vehicle). In doing so we have also taken note of the fact that S.S. Murthy, Respondent No. 1, the owner of the vehicle, despite service of notice has chosen not to appear before this Court. We, therefore, order accordingly and close the appeals in the above terms."
15. Upon Re-appreciating the evidence on record in the present case, the respondent No.3 - Insurance Company has also examined Respondent No.1 - driver of the offending truck. However, in deposition, the Insurance Company has not at all touched or raised the question of non-existence of valid and effective licence. Upon re-appreciating the evidence on record, it clearly appears that the accident occurred on 2.4.2012 whereas the licence to drive transport vehicle was renewed on 26.7.2012. The evidence clearly shows that on the date of the accident, the driver of the truck did not possess the valid and effective licence and the renewal has been made after the accident which is similar to the facts of the case in Kempaiah & Ors. (supra) . In light of the aforesaid, though the Tribunal has rightly exonerated the Insurance Company, the Insurance Company is liable to pay and satisfy the award first and then recover from the owner of the truck involved in the accident, as if it is a decree. The appeal is thus, partly allowed. The impugned judgement and award is modified only to the aforesaid extent. Registry is directed to transmit back Page 14 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022 C/FA/642/2018 JUDGMENT DATED: 30/11/2021 the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.
(R.M.CHHAYA,J) (MAUNA M. BHATT,J) NAIR SMITA V. Page 15 of 15 Downloaded on : Wed Jan 12 05:56:00 IST 2022