Gujarat High Court
New India Assurance Co. Ltd. vs Harishbhai Dayabhai Bharaniya on 28 September, 2018
Author: S.G. Shah
Bench: S.G. Shah
C/FA/1909/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1909 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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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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NEW INDIA ASSURANCE CO. LTD.
Versus
HARISHBHAI DAYABHAI BHARANIYA
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Appearance:
MR MAULIK J SHELAT(2500) for the PETITIONER(s) No. 1
DELETED(20) for the RESPONDENT(s) No. 2
MR HARSHAD K PATEL(2844) for the RESPONDENT(s) No. 4,5
RULE SERVED(64) for the RESPONDENT(s) No. 1,3
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 28/09/2018
ORAL JUDGMENT
1. Heard learned advocates Mr.Maulik J. Shelat for the appellant and learned advocate Mr.Harshed K Patel for the Page 1 of 12 C/FA/1909/2015 JUDGMENT respondents no.4 and 5. Perused the record.
2. The appellant herein is original opponent no.3 being insurer of one of the vehicle which was involved in the accident being Carrier Rickshaw No.GJ-11 T-4473. Respondent no.1 is original claimant whereas respondent no.2 is driver of said rickshaw no.GJ 11 T 4473 has been deleted from the cause- title. Respondent no.3 is owner of the rickshaw no.GJ 11 T- 4473, opponent no.4 and 5 are again driver and owner respectively of Auto Rickshaw No.GJ-9 Y 411 which was involved in the accident. Except opponent no.4 and 5 being driver and owner of the Rickshaw No.GJ-9 Y-411 none has appeared and therefore, it is to be believed that they have nothing to contest or say against appeal wherein practically, insurance company has came forward with a case that it may not be held liable to indemnify the respondent no.3 its insured because rickshaw No.GJ-11 T-4473 owned by such owner was driven by such person who was not holding any license to drive such vehicle. Let it be made clear here that this is not a case that driver of such rickshaw was holding license but he was not authorized to drive such vehicle, but there is specific evidence on record which will be discussed hereinafter to the effect that said driver was not holding any license at all to drive such vehicle. Thereby, practically, appeal is only Page 2 of 12 C/FA/1909/2015 JUDGMENT against respondents no.1,2 and 3 and therefore, when contention in appeal is otherwise not affected the liability and responsibility of respondents no.4 and 5 in any manner, their presence is not much material, however, though they have remain ex-parte before the tribunal, they have filed their appearance in this appeal. As against that surprisingly though driver and owner of rickshaw No.GJ-11 T-4473 has filed their appearance before the tribunal, they have remain absent before this Court since they have also failed to contest the claim on merits even after filing appearance.
3. Respondent no.1 is original claimant, he has preferred M.A.C.P. No.174 of 2006 before the Motor Accident Claims Tribunal, Porbandar claiming compensation of Rs.2,20,000/- submitting that on 12.02.2006 when he was travelling in Auto Rickshaw No.GJ-9 Y-411, because of rash and negligent driving of driver of rickshaw so also driver of another Carrier Rickshaw No.GJ-11 T-4473 which was coming from opposite direction both the rickshaws were collided which resulted into serious injuries to him. Since, issue raised in this appeal is not with reference to quantum of compensation, the factual details about result of the incident and quantum of Page 3 of 12 C/FA/1909/2015 JUDGMENT compensation are not much material to be reproduced herein because it is well described in the impugned judgment whereby, the tribunal has, after allowing both the sides to adduce their evidence, awarded an amount of Rs.65,000/- with 7.5% interest to the injured claimant.
4. As aforesaid insurance company has mainly challenged the award on the ground that when vehicle insured by it was driven by the person who was not holding any license, they could not be held responsible to indemnify the owner. In support of such stand insurance company has already examined the investigating officer of the FIR being C.R.No.I 08 of 2006 which was registered on 12.02.2006 with Udhyognagar Police Station regarding incident, for which claimant has claimed compensation. Such investigating officer namely Mr.Dilip Shivshankar Vyas has categorically deposed on oath before the tribunal that in the year 2006 he was serving as a Assistant Sub Inspector in Udhyognagar Police Station and since, investigation of FIR being C.R.No.I-8 of 2006 was assigned to him, he has investigated the incident and based upon such investigation, he has filed chargesheet against Rameshbhai Lakhmanbhai Vizuda being driver of Rickshaw No.GJ-11 T-4473, insured by Page 4 of 12 C/FA/1909/2015 JUDGMENT the present appellant, before the Court. He has made a specific statement at Exh.39 that during the investigation it has been noticed that said Rameshbhai Lakhmanbhai Vizuda was not having driving license and therefore, he added charges under Sections 3 and 181 of the Motor Vehicles Act. He confirmed that entire investigation was carried out by him only. Such witness was cross examined by learned advocate Mr.P.V.Mandaviya for the original claimant in cross- examination, it has been brought on record that driver himself has disclosed before the Investigating Officer that he was not holding any license. It was also disclosed in cross examination that incident took place because of negligence of such Rameshbhai Lakhmanbhai Vizuda. However, when witness has confirmed that driver himself has disclosed before the Investigating Officer that he was not holding valid license, admission of Investigating Officer that he has not inquired in R.T.O., has no significance. However, insurance company has not taken a chance and considering the address of respondent no.2 they have examined one Dineshkumar Lakhabhai Kodiyatar witness no.3 at Exh.41. Such witness was serving as a Junior Clerk in R.T.O. Office of Page 5 of 12 C/FA/1909/2015 JUDGMENT Porbandar. It is his say on oath before the tribunal that as per their computerized record no license is issued in the name of Rameshbhai Lakhmanbhai Vizuda and that though he has not checked manual record, it cannot be verified in absence of license number, he brought the certificate to that effect which is produced on record wherein it is categorically disclosed that as per computerized record there is no license issued by the R.T.O., Porbandar in the name of Rameshbhai Lakhmanbhai Vizuda, at the same time, it is also categorically disclosed in certificate that if some person came with license number then they may verify that whether such license number is issued in the name of particular person or not, witness was also cross examined by learned advocate Mr.P.V.Mandavia for the claimant. Now if we refer both the depositions of both the witnesses examined by the insurance company, it becomes clear that neither of the witness was cross examined by respondents no.2 and 3 being original opponent no.1 and 2 as driver and owner respectively of Rickshaw No.GJ-11 T-4473, though they have filed their appearance before the tribunal and learned advocate Mr.K.K.Makwana had appeared for them before the Page 6 of 12 C/FA/1909/2015 JUDGMENT tribunal, therefore, there is reason to believe that specific evidence adduced by insurance company against opponent no.2 i.e. respondent no.1 herein that he was not holding any license at all and if such witnesses are not cross examined to prove contrary by such litigant than there is reason to believe that such litigant admits statement on oath by the witness before the tribunal that he was not holding any license. This is sufficient evidence to confirm that driver of rickshaw No.GJ-11 T- 4473 was not holding any license at all at the time of incident.
5. In view of above oral and documentary evidence on record, learned advocate Mr.Shelat for the appellant - Insurance Company has rightly pointed out that as per the Section 3 of Motor Vehicles Act, no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorising him to drive the vehicle and if any such person drive vehicle then he commits offence under Section 181 of the Motor Vehicles Act,1988 which is punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees and therefore, reading with all these provisions Page 7 of 12 C/FA/1909/2015 JUDGMENT coupled with the provisions of Section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988 insurance company may not be held liable and responsible to indemnify the owner of the vehicle if such vehicle has been driven by the person who was not holding any license.
6. Thereby, this is a case where there is specific evidence on record that driver of the vehicle was not having valid license when tribunal has fastened the liability of insurance company to indemnify the owner by making payment of compensation to the claimant, there is substance in the appeal by the insurance company to modify such award by exonerating the liability of insurance company.
7. Unfortunately tribunal has relied upon the decision of the High Court against specific decision of Hon'ble Supreme Court of India in the case of National Insurance Company Ltd. V/s Swaran Singh and others of larger bench of three judges of the Hon'ble Supreme Court of Indian reported in (2004) 3 SCC 297. It is surprising to note that tribunal has relied upon following paragraph of the judgment dated 22.02.2013 in First Appeal No.1549, 12572 and 1550 of 2012 (group) of New Indian Page 8 of 12 C/FA/1909/2015 JUDGMENT Assurance Co. Ltd.V/s. Makhtyarbibi WD/O Sitabkha @ Kalubhai by the High Court:-
"9.1 While it is true that possession of the license will authorize a person to drive a vehicle, but when it comes to determining the compensation under Section 166 of the Act, as noticed in the case of National Insurance Co. Ltd., (Supra), a mere non-possession of the license, by itself, would not allow the insurer to disown its liability arising out of negligent driving by the driver of the vehicle".
8. At this stage, it is necessary to reproduce paragraphs no.67, 84 and 110 (ii) from the judgment in the case of Swaran Singh (Supra) by full bench of Hon'ble Supreme Court.
67. In MacGillivray on Insurance Law it is stated:
"25-82. Burden of Proof. -- Difficulties may arise in connection with the burden of proving that the facts of any particular case fall within this exception. The usual rule is that once the assured has proved that the case comes within the general risk, it is for the insurers to prove that it comes within an exception. It has, therefore, been suggested in some American decisions that, where the insurers prove only that the assured exposed himself to danger and there is no evidence to show why he did so, they cannot succeed, because they have not proved that his behaviour was voluntary or that the danger was unnecessary. Since an extremely heavy burden is Page 9 of 12 C/FA/1909/2015 JUDGMENT imposed on the insurers if they have to prove the state of mind of the assured, it has been suggested in Canadian decisions that the court should presume that the assured acted voluntarily and that, where he does an apparently dangerous and foolish act, such danger was unnecessary, until the contrary is shown. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is no apparent reason for exposing himself to an obvious danger."
84. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving license. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid license or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving license. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical Page 10 of 12 C/FA/1909/2015 JUDGMENT fault or vis major.
110 (ii) An 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.
9. Bare reading of statutory provisions discussed hereinabove and specific findings by Hon'ble Supreme Court as reproduced hereinabove makes it clear that though principal of pay and recover has been followed by the Hon'ble Supreme Court in certain cases, it cannot be followed in all cases without considering the statuary provisions coupled with the factual details of evidence on record. In short it can be said that not holding valid driving license its quite different position than not having any driving license.
10. Therefore, when full bench of the Hon'ble Supreme Court has confirmed that in absence of license, insurance company cannot be held responsible, there is substance in the appeal so as to modify the award when there is sufficient evidence on record that driver of rickshaw no.GJ-11 T-4473 was not having any license at all on the date of accident.
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C/FA/1909/2015 JUDGMENT
11. Reference to the case between Sardari and Others V/s. Sushil Kumar and Others reported in (2008) 17 SCC 208 is also material.
12. Therefore, appeal is partly allowed whereby insurance company of Rickshaw No.GJ-11 T-4473, being present appellant, cannot be held responsible to indemnify its insured by making payment of compensation to the claimant as per impugned award. Therefore, such award needs to be modified so as to exonerated the liability of present appellant. Appeal is partly allowed to that extent. Amount as per the award deposited by the insurance company pursuant to order dated 26.10.2015 and its investment in F.D.R. shall be refunded to the insurance company with accured interest.
13. R & P be send back to the concerned trial Court.
(S.G. SHAH, J) VARSHA DESAI Page 12 of 12