Gujarat High Court
Shriram General Insurance Co Ltd vs Hansaben Wd/O Dashrathkumar ... on 20 October, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya, Samir J. Dave
C/FA/4665/2019 JUDGMENT DATED: 20/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4665 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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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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SHRIRAM GENERAL INSURANCE CO LTD
Versus
HANSABEN WD/O DASHRATHKUMAR RAMESHBHAI
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 6
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4
NOTICE SERVED BY DS(5) for the Defendant(s) No. 5,7
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 6 Downloaded on : Sat Oct 23 00:47:06 IST 2021 C/FA/4665/2019 JUDGMENT DATED: 20/10/2021
1. Feeling aggrieved and dissatisfied by the judgment and award dated 20.11.2018 passed by the Motor Accident Claims Tribunal (Aux), Panchmahals at Godhra in MACP No. 1030/2015, the insurance company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
2. Heard Mr. Rathin Raval, learned advocate for the appellant, Mr. Nishit Bhalodi, learned advocate for respondents no. 1 to 4 and Ms.Kirti Pathak, learned advocate for respondent no.6. Though served, no one appears for respondents no.5 and 7.
3. Considering the short issue involved in this appeal, this Court, vide order dated 18.12.2019, was pleased to issue notice for final disposal. We have perused the Record and Proceedings and hence, the appeal is taken up for its final disposal forthwith.
4. The following facts emerge from the record of the appeal -
4.1 That on 18.10.2015, the deceased Dashratkumar was travelling in Maruti Van bearing registration No. GJ-17N-4092 and the driver of the said vehicle was driving the said vehicle in rash and negligent manner with excessive speed. When the said Maruti Van was passing near sim of Aniyad village, at that time, one Tata Magic bearing registration No. GJ-17 W-3354, which was been driven in rash and negligent manner Page 2 of 6 Downloaded on : Sat Oct 23 00:47:06 IST 2021 C/FA/4665/2019 JUDGMENT DATED: 20/10/2021 with excessive speed, came from the opposite side, and lost control over his vehicle and dashed with the Maruti Van, due to which the deceased sustained serious injuries and died on the spot. Thus, the said accident occurred due to rash and negligent driving on the part of both the drivers. A complaint came to be registered before the Shahera Police Station.
4.2 The present claim petition came to be filed under Section 166 of the Act by the the claimants claiming compensation of Rs. 27,00,000/-. The Tribunal considered documentary, oral evidence such as deposition of the one of the claimant Hansaben at exhibit 28, copy of the complaint at exhibit 31, spot panchnama at exhibit 32, inquest panchnama at exhibit 33, driving license at exhibit 34, insurance policy of the maruti car at exhibit 34A, RC book at exhibit 35, PM report at exhibit 36, copy of the insurance policy of TATA Magic at exhibit 43, copy of the registration information at exhibit 51, copy of the permit at exhibit 52, copy of the driving license at exhibit 55, copy of permit at exhibit 56 and copy opf sale agreement at exhibit 57. After appreciating the evidence on record and considering the age of the deceased to be 24 years on the date of the accident, the Tribunal awarded total compensation of Rs. 16,19,908/- with interest at the rate of 9% per annum from the date of the claim petition till its realisation. The Tribunal held contributory negligence of drivers of both the vehicles to the Page 3 of 6 Downloaded on : Sat Oct 23 00:47:06 IST 2021 C/FA/4665/2019 JUDGMENT DATED: 20/10/2021 ratio of 50:50. Being aggrieved by the same, the present appeal is filed.
5. Mr. Raval, learned advocate appearing for the appellant has contended that even though, as far as quantum is concerned, there is no dispute, however, the fact remains that the appellant insurance company had no liability as there is no valid permit of the vehicle on the date of the accident. Referring to the Contract Carriage Permit, exhibit 52, it was contended by Mr. Raval, learned counsel for the appellant that the accident occurred on 18.10.2015, where as the permit is issued from 21.10.2015 to 20.10.2020. Mr. Raval therefore submitted that the date on which the accident took place, no valid Contract Carriage Permit was there and hence, the insured has committed breach of conditions of the contract and referring to Sections 66, 147 and 149 of the Act, it was contended by Mr. Raval that the appellant insurance company be exonerated.
6. Per contra, Mr. Bhalodi contended that the original claimants are entitled to the compensation as awarded by the Tribunal and that the appellant as an insurance company is liable to satisfy the award and pay to the respondents-original claimants.
7. Ms. Kirti Pathak, learned counsel appearing for the other insurance company has also reiterated the contentions made by Mr. Raval.
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8. No other or further contentions have been raised by the learned advocates appearing for the respective parties.
9. Upon bare perusal of the Contract Carriage Permit at exhibit 52, the said permit issued by the competent authority, i.e., Regional Trapsort Authority, is of 21.10.2015 and the said permit is for the period 21.10.2015 to 20.10.2020. The record clearly establishes the fact that the accident took place on 18.10.2015 and hence, it transpires that on the date of the accident, there was no legal or valid permit. No other permit issued before 20.10.2015 is placed on record. Upon re-appreciation of the said evidence on record, thus, the vehicle involved in the accident was being driven without their being any valid permit and hence, there is breach of the condition by the owner of the vehicle involved in the accident.
10. Following the ratio laid down by the Apex Court in the case of Amrit Paul Singh & Anr. Vs. TATA AIG General Insurance co. reported in (2018) 7 SCC 558, though the appellant insurer is not liable, however, the appellant as insurer must pay the amount of compensation along with interest as provided by the Tribunal and thereafter, the insurer may recover the said amount from the owner of the vehicle.
11. The appellant shall have to pay first and then recover from the owner of the vehicle involved in the accident. No other or further modification is Page 5 of 6 Downloaded on : Sat Oct 23 00:47:06 IST 2021 C/FA/4665/2019 JUDGMENT DATED: 20/10/2021 required in the impugned judgment and award. Accordingly, the appeal is allowed only to the aforesaid extent. No order as to costs. Record and proceedings be transmitted back to the Tribunal forthwith.
(R.M.CHHAYA,J) (SAMIR J. DAVE,J) BIJOY B. PILLAI Page 6 of 6 Downloaded on : Sat Oct 23 00:47:06 IST 2021