Gujarat High Court
National Insurance Company Ltd vs Rameshchandra Keshavlal Raval & 2 on 7 May, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/1116/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1116 of 2014
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NATIONAL INSURANCE COMPANY LTD.....Appellant(s)
Versus
RAMESHCHANDRA KESHAVLAL RAVAL & 2....Defendant(s)
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Appearance:
MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1
MR MA KHARADI, ADVOCATE for the Defendant(s) No. 1
MR R.K.MANSURI, ADVOCATE for the Defendant(s) No. 3
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 07/05/2014
ORAL ORDER
1) The appellant-insurance company, in this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), has called in question the judgment and award dated 20th July, 2012 passed by the Motor Accident Claims Tribunal (Aux.), Sabarkantha camp at Modasa in Motor Accident Claim Petition No.678 of 2001, whereby the Tribunal has awarded compensation of Rs.3,28,088/- with interest at the rate of 9% per annum from the date of filing the claim petition till the realization thereof in favour of the respondent No.1-claimant.
2) The facts giving rise to the present appeal are that the respondent No.1-claimant filed a claim petition before the Tribunal stating that on 21.8.2000 in the morning at 11:00 a.m., the claimant had gone to make purchase for the Samraji Page 1 of 6 C/FA/1116/2014 ORDER Vishnu Temple in Jeep No.G.J.09-V.3064. They had gone through Sunokh from near Rajendranagar Patiya and were passing near hotel We-Weight on the National Highway No.8 when the respondent No.2 driver who was driving the jeep in full speed in a rash and negligent manner, suddenly applied the brakes due to which the jeep turned turtle and the claimant sustained grievous injuries. The other persons from the temple who were travelling along with the claimant also sustained injuries to a lesser and more extent. In connection with the said accident, a first information report came to be registered vide Modasa Rural Police Station I-C.R. No.83 of 2000. In view of the injuries sustained by him, the claimant filed a claim petition under section 166 of the Act seeking compensation of Rs.7,00,000/-. The Tribunal, after appreciating the evidence on record, awarded compensation of Rs.3,28,088/- with interest at the rate of 9% per annum and held the insurance company as well as the respondents No.2 and 3 driver and owner of the offending vehicle to be jointly and severally liable to pay the compensation to the claimants. Being aggrieved, the insurance company is in appeal.
3) Mr. Maulik Shelat, learned advocate for the appellant, assailed the impugned order by submitting that the Tribunal has committed a jurisdictional error in not examining the legal defence raised by the appellant. It was submitted that a perusal of the R.C. Book, Insurance Policy and license clearly shows that the driver of the insured transport vehicle was not holding a license to drive a transport vehicle (goods jeep). Therefore, in the light of the decision of the Supreme Court in the case of New India Assurance Company Limited vs. Roshanben Rahemansha Fakir & Anr., 2008 (8) SCC 253 Page 2 of 6 C/FA/1116/2014 ORDER and National Insurance Co. Ltd. vs. Kusum Rai & Ors., 2006 (4) SCC 250, the driver of the vehicle not holding a valid license, the insurance company could not be held liable. It was further submitted that the offending vehicle being a goods vehicle, the insurance policy did not cover the risk of the claimant and, therefore, also the Tribunal was not justified in fastening the liability on the insurance company.
4) On the other hand, Mr. V.B. Malik, learned advocate for Mr. M.A. Kharadi, learned advocate for the respondent No.1- claimant submitted that the Tribunal has appreciated the evidence on record in proper perspective and that before the Tribunal, no such contention had been raised on behalf of the insurance company and, hence, it is not permissible for them to raise contention for the first time in the present appeal. That the appeal being devoid of merit deserves to be dismissed.
5) From the facts noted hereinabove, it is apparent that the accident took place on 21st August, 2000. A perusal of the impugned award reveals that the Tribunal has not recorded any contention as regards the driver of the offending vehicle not having a valid driving license or that the risk of the passenger was not covered under the insurance policy having been raised on behalf of the insurance company. A perusal of the record of the case reveals that even in the written statement, no such contention had been raised. However, since such contention had been raised before this court, the court has examined the same in the light of the record of the case.
6) The first contention raised before this court is that the Page 3 of 6 C/FA/1116/2014 ORDER driver of the offending vehicle was not holding a valid license to drive a transport vehicle. The vehicle in question being a goods carrying jeep. The license of the driver of the offending vehicle has been produced on record at exhibit-41. The same reveals that the said license had been issued on 2.3.1994 and was valid up till 4.2.2011. The license was issued in respect of a light motor vehicle (N.T.). The question that arises for consideration is as to whether the driver of the offending vehicle was holding a valid license at the time of the accident. On behalf of the appellant, reliance has been placed upon the decision of the Supreme Court in the case of New India Assurance Company Limited vs. Roshanben Rahemansha Fakir & Anr.(supra), wherein the court was dealing with a case where the accident had taken place after the year 2004. The court referred to its earlier decision in the case of National Insurance Co. ltd. vs. Swaran Singh as well as in the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria @ NESARAGI & Ors., 2008(3) SCC 464. The court observed that in the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria @ NESARAGI & Ors (supra), the court had noticed that the provisions of the act had undergone change and that the definition of "light motor vehicle" would not include a "light transport vehicle". In that case, keeping in view the date in which the accident took place, it was held:
20. From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at the relevant point of time to recover both "light passenger carriage vehicle" and "light goods carraige vehicle". A driver who had a valid license to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well.Page 4 of 6 C/FA/1116/2014 ORDER
7) Since in the case before the Supreme Court, the accident had taken place after the amendment in the rules, the Supreme Court held that the insurance company was not liable, however, in exercise of its jurisdiction under article 142 of the Constitution, the court directed the insurance company to satisfy the award in favour of the claimant and to recover the same from the owner.
8) At this juncture, reference may be made to the decision of the Supreme Court in the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria @ NESARAGI & Ors (supra) wherein the court has held thus:
"From what has been noticed hereinbefore, it is evident that "transport vehicle" has now been substituted for "medium goods vehicle" and "heavy goods vehicle". The light motor vehicle continued, at the relevant point of time to recover both "light passenger carriage vehicle"
and "light goods carraige vehicle". A driver who had a valid license to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
9) Therefore, in the cases where the accident had taken place prior to 28.3.2001, the driver who had a valid license to drive a light motor vehicle was also authorised to drive light goods vehicle as well. In the present case, the accident having occurred on 21.8.2000, the same would be squarely covered by the decision of the Supreme Court in the case of National Insurance Company Ltd. vs. Annappa Irappa Nesaria @ NESARAGI & Ors (supra) and, as such, it cannot be said that the driver of the offending vehicle was not holding a valid license. As regards the contention that the claimant was a Page 5 of 6 C/FA/1116/2014 ORDER passenger in a goods vehicle and that the risk was not covered, a perusal of the insurance policy in question reveals that the premium for legal liability of a passenger had also been paid. Under the circumstances, the contention that the risk of the passenger is not covered under policy, does not merit acceptance. Besides, a perusal of the entire record reveals that no evidence has been led by the insurance company in support of its say that the risk was not covered under the policy. In the absence of any evidence having been led and any contention in this regard having been raised before the Tribunal, this being a question of fact, there is no warrant for interference at the appellate stage.
10) In the light of the above discussion, the appeal fails and is, accordingly, summarily dismissed. The appellant insurance company shall deposit the entire awarded amount with the Tribunal within a period of six weeks from the date of receipt of a copy of this order.
(HARSHA DEVANI, J.) Vahid Page 6 of 6