Gujarat High Court
National Insurance Company vs Laxmiben Ramanbhai Patel on 15 July, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/FA/1278/2010 JUDGMENT DATED: 15/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1278 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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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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NATIONAL INSURANCE COMPANY
Versus
LAXMIBEN RAMANBHAI PATEL & 2 other(s)
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Appearance:
MR RUSHANG MEHTA for MR DAKSHESH MEHTA(2430) for the
Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 1
MR VARUN BHARDA for MR ZUBIN F BHARDA(159) for the Defendant(s)
No. 1.1,1.3
RULE SERVED for the Defendant(s) No. 1.2,2,3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 15/07/2022
ORAL JUDGMENT
1. The present First Appeal under Section 173 of the Motor Vehicles Act, is directed against the award dated 17.11.2009 passed by the Motor Accident Claims Tribunal (Aux.), Fast Track Page 1 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 Court, Navsari, camp at Vansda in Motor Accident Claim Petition No. 55 of 2004. The appellant - Insurance Company who is original respondent no. 3 has come out with the present appeal, mainly on the ground that at the relevant point of time when the accident took place the person driving the vehicle in question was not holding a license and as such, the Insurance Company cannot be held responsible for the payment of compensation.
2. The brief background of the facts is that on 12.12.2002, injured Laxmiben was standing at 'Hanuman Falia' at Vandervela. At that point of time, original opponent no. 1 - Nitinbhai Thakorebhai Patel had negligently driven vehicle Tata Sumo bearing registration no. GJ-6-AA-8202 belonging to opponent no. 2 and while taking the vehicle in reverse, has dashed Laxmiben, who sustained serious injuries. On account of such accident, a complaint was registered against opponent no. 1 before Vansda Police Station being C.R. No. I-104 of 2002. On account of such serious injuries, in a gradual process injured Laxmiben suffered serious health issues and on account of such injuries, permanent disability has taken place and in gradual Page 2 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 process, Laxmiben had to suffer a lot. As a result of this, for the purpose of claiming compensation, a claim petition was submitted for seeking compensation to the extent of Rs.4 lakhs. It has been pointed out that the said claim petition was registered as Motor Accident Claim Petition No. 55 of 2004 before the learned Tribunal, Fast Track Court, Navsari. But during the said claim petition, since the deceased succumbed to the injuries and died, the legal heirs and representatives were brought on record being applicant nos. 1/1 to 1/3. 2.1. On being served with the notice, the opponents appeared and opponent no. 3 - The National Insurance Company Limited appeared through lawyer and submitted written reply at Exhibit-23 and by raising contention about violation of the terms of the policy, a request is made to see that the liability may not be fasten upon the Insurance Company, however, during the process of adjudication of claim petition in favour of the applicants i.e. the claimants one Mr. Ramanbhai Jinabhai Patel has submitted an affidavit at Exhibit-35(A) in respect of their claim who was cross-examined by learned advocate appearing for the Insurance Company i.e. opponent no. 3 and after leading Page 3 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 evidence, a case was adjudicated and after examining the material led before the learned Tribunal, Fast Track Court, Navsari, an award came to be passed on 17.11.2009, in which, the claim petition came to be partly allowed and the opponents have been held responsible and directed to pay the amount of compensation jointly and severally to the extent of Rs.63,000/- with 9% simple interest from the date of the application and ordered to pay/deposit the compensation before the learned Tribunal, Fast Track Court, Navsari within a period of 30 days and consequently, the award about apportionment was also passed by the learned Tribunal, Fast Track Court, Navsari and it is against this award passed by the learned Tribunal, Fast Track Court, Navsari, opponent no. 3 - Insurance Company has preferred the present First Appeal before the Court.
3. The appeal was admitted in the month of May, 2010 and after completion of the process, it has come up for consideration before this Court in which, learned advocate Mr. Rushang D. Mehta appeared on behalf of the appellant - Insurance Company whereas, Mr. Varun Z. Bharda, learned advocate has appeared on behalf of the opponents.
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4. Learned advocate Mr. Rushang Mehta appearing on behalf of the appellant - Insurance Company has vehemently submitted that in view of the fact that opponent no. 1 at the relevant point of time was not holding license while driving the vehicle, the Insurance Company is not statutorily liable nor the policy permit the coverage of risk and as such, in the absence of license, liability of the Insurance Company may not arise. Learned advocate Mr. Mehta has further submitted that this issue is almost covered by the decision delivered by the learned Single Judge as well by the Division Bench of this Court and as such, the award requires to be quashed insofar as the Insurance Company is concerned. Learned advocate Mr. Mehta has submitted that irrespective of all other circumstances, the appeal deserves to be allowed on this count alone. Few decisions are brought to the notice of this Court by learned advocate Mr. Mehta in addition to the relevant provisions of Motor Vehicles Act, precisely Section 3 as also Section 149 (2)
(a) (ii) of the Motor Vehicles Act and thereby has contended that the learned Tribunal, Fast Track Court, has erroneously come to the conclusion that the Insurance Company is Page 5 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 responsible.
4.1. Learned advocate Mr. Mehta has further submitted that the learned Tribunal, Fast Track Court, Navsari has further erred in not appreciating the law laid down on the issue by the Hon'ble Apex Court in the case of National Insurance Company v Vidyavihar Mahariwala reported in (2008) 12 SCC 701; in the case of Ishwarchandra etc., v Oriental Insurance Co., reported in (2007) 10 SCC 650; in the case of National Insurance Company v. Kusum Rai reported in (2006) 4 SCC 250; in the case of National Insurance Co. v. Swaran Singh reported in (2004) 3 SCC 291; In the case of Oriental Insurance Co. v. Nanniappan reported in (2004) 13 SCC 224 as also in the case of Umedchandra Golcha v. Dayaram reported in 2001 ACJ 966 and than has contended that there is hardly any liability statutorily can be fastened upon the Insurance Company especially when undisputedly, there was no license at the relevant point of time with opponent no. 1. To further emphasis the stand, learned advocate Mr. Mehta has drawn attention of this Court to yet another decision delivered by Hon'ble Supreme Court in the case of National Insurance Page 6 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 Co. v. Parvath Nani & Ors., reported in 2009 (12) Scale 82 and has contended that there is hardly any case made out by virtue of which the liability of the Insurance Company can be fixed. Learned advocate Mr. Mehta has further submitted that this principle of 'pay and recover' would also not be attracted not only in view of the decision delivered by this Court, but Hon'ble Supreme Court which has propounded this principle in a given set of circumstance and was in exercise of jurisdiction under Article 142 of the Constitution of India and as such, the said principle may not be applied here when this Court is to exercise discretion under Section 173 of the Motor Vehicles Act in respect of present First Appeal. Hence, principle of 'pay and recover' will also not be possible to be applied here, and as such, requested to quash the award passed by the learned Tribunal, Fast Track Court, Navsari, insofar as it relates to Insurance Company.
5. As against this, learned advocate Mr. Varun Bharda appearing for the opponents has vehemently contended that the learned Tribunal, Fast Track Court, Navsari has passed a just and reasoned order in exercise of its discretion and as such, Page 7 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 since an award under challenge is well supported by cogent reasons, the same may not be disturbed. It has further been submitted that whether license was there at the relevant point of time or not will have to be examined in just and fair manner, which appears to have not been undertaken here on the case on hand and hence, has submitted that the conclusion which has been arrived at by the learned Tribunal, Fast Track Court, Navsari may not be substituted. Here, in the instant case, according to learned advocate Mr. Bharda, the appellant - Insurance Company once having insured the vehicle cannot shirk its responsibility of compensation payable to the deceased. As a result of this, First Appeal being devoid of merit, may be dismissed. For the purpose of strengthening his submission, learned advocate Mr. Bharda has cited few decisions to substantiate his contentions. One of such decision is in the case of National Insurance Company Ltd., v. Swaran Singh & Ors., reported in (2004) 3 SCC 297 (paragraphs 75, 84, 85) as well as in the case Ramchandra Singh v. Rajaram & Ors., reported in (2018) 8 SCC 799 and also in the case of Shamanna & Anr., v. Divisional Manager, Oriental Insurance Company Limited & Ors., reported in (2018) 9 Page 8 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 SCC 650 and after referring to these decisions, learned advocate Mr. Bharda has requested to dismiss the appeal or in the alternative has requested that at least pay and recover order be passed which would meet the ends of justice. 5.1. Learned advocate Mr. Bharda has submitted by referring to paragraph 8 of the judgment to indicate that on the contrary, opponent no. 1 helped the injured lady at the earlier point of time and, therefore, it was unintentional, yet it has resulted into accident and as such, once the vehicle in question is insured, the Insurance Company cannot shirk its responsibility to pay compensation. Hence, has requested that the award may not be disturbed in the interest of justice. Learned advocate Mr. Bharda has further submitted that the decisions which are tried to be relied upon by learned advocate representing the appellant - Insurance Company are in different contextual circumstance and, hence, the ratio may not be applied in a mechanical manner and has requested that considering the totality of circumstance and the evidence on record, this Court may dismiss the First Appeal. No other submissions have been made.
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6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, the following circumstances deserves to be considered
7. From the material on record, undisputedly what is emerging is that at the relevant point of time, when the accident took place, involved vehicle was driven by original opponent no. 1 who was not having driving license and as such, there was a clear breach of the terms of the Insurance Policy. It further appears that in the cross-examination, it was admitted at Exhibit-35(A) that the driving license was not produced and during the course of investigation it was also found by the Investigating Officer that opponent no. 1 had driven the vehicle without any license. The Investigating Officer had been examined in the present proceedings at Exhibit-67 in which also it was emerging that there was no driving license, however, the learned Tribunal, Fast Track Court, Navsari has raised an inference that since the same was not produced, it cannot be believed that opponent no. 1 was not having driving license. On the contrary, opponent no. 1 has not produced such driving license though same issue was in serious controversy and, as Page 10 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 such, the other aspect related to quantum etc., are not that much relevance for deciding the present appeal filed by the Insurance Company since not agitated.
7.1. From the overall material on record, when it comes on record, that a case is put-forth by the Insurance Company that there was no driving license and as against that the opponent has also miserably failed to produce such driving license and the said issue appears to have been emerged in which the stand of the appellant Company has gone unchallenged and as such, the case appears to have been made out by the appellant. Here even during the course of hearing present appeal proceedings as well, such issue has not been controverted. Resultantly, the appellant has justified itself in its stand about no liability of Insurance Company for want of license.
8. At this stage, on the basis of the aforesaid circumstance, learned advocate Mr. Mehta has drawn attention to few decisions delivered by the co-ordinate Bench which is again based upon the decision delivered by the Division Bench of this Court, in which, on the basis of such admitted position, since there was no license on the date of the accident, the Insurance Page 11 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 Company is absolved from the responsibility and as such, in view of such proposition having been laid by the co-ordinate Bench of this Court, the same deserves to be considered. Hence, the Court deems it proper to reproduce the said observations contained in paragraph 8 from the decision dated 18.01.2022, reads as thus:-
"8.0. In case on hand also it clearly transpires that the driver of offending vehicle had no license on the date of accident. As per the provision of the Motor Vehicles Act leverage of 30 days was given on license having expired whereas in this case one year has passed and same has not renewed. It is an admitted position that driver of offending vehicle did not possess any license on the date of accident. Following the ratio laid down by the Coordinate Bench of this court in the case of Mahmad Rafik Munnebhai Ansari (supra), the appellant- Insurance Company cannot be therefore, held liable to indemnify the award. The conclusion arrived at by the Tribunal that the license was not cancelled also is against the provision of Act and that would not create any liability of the appellant. In light of the aforesaid, therefore, the appellant cannot be held to be liable to satisfy the award and appellant Insurance Company therefore, deserves to be exonerated. It goes without saying that the opponent nos. 1 and 2 would be jointly and severely liable to satisfy the award. In light of the above fact, the contention raised by Mr. Patel that order of pay and recovery deserves to be passed, cannot be accepted. That as per the order dated 18.09.2012 passed in Civil Application No.7758 of 2012, the appellant Insurance Company has deposited whole awarded amount with interest and no disbursement is made in favour of the claimant. However, the respondent claimant was permitted to withdraw the interest that may be accrued on such deposit. If any such interest is permitted to be disbursed in favour of the claimant, as per the order dated 18.09.2012 in Civil Application No. 7758 Page 12 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 of 2012, the same cannot be recovered from the claimant. Rest of the amount be refunded back to the appellant Insurance Company forthwith with proportionate costs and interest. The impugned judgment and award is hereby quashed and set aside. Appeal is thus, partly allowed to the aforesaid extent. Registry is directed to transmit back the Record and Proceedings of the case to the Tribunal forthwith."
9. In addition to the aforesaid decision, the Division Bench of this Court has also taken a similar view which was relied upon by the co-ordinate Bench and the said decision is dated 22.10.2021 passed in First Appeal No. 3173 of 2021 , wherein also few observations contained in paragraph 12 deserves to be quoted hereunder :-
"12. Thus, insurer would be entitled to raise a defense that driver of the offending vehicle was not possessing a valid driving license at the time of the accident and as such it is not entitled to indemnify the claim. If it is to be construed that burden was on the insurance company to prove that owner of the vehicle had consciously allowed the driver of the vehicle whom he knew, did not possess driving license, then in such circumstances also insurer would not be required to indemnify the award. In the instant case, said situation would not arise, inasmuch as, the owner of the vehicle who was arraigned as respondent No. 2, did not appear before the Tribunal and did not contest the matter. As such, burden had shifted on the insurance company. Only on initial burden cast on the insured namely the owner of the vehicle was discharged, it would have shifted to the claimant to dispense the same. The said exercise having not been done and undisputedly Exh. 43 and 67, the driving license which was produced by the claimant disclosing that driver of the motorcycle was possessing the driving licence which was effective from 26.06.2009 onwards, and he did not possess the driving Page 13 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 license as on the date of accident i.e. 22.02.2009, it cannot be gainsaid by the claimant that insurer was required to indemnify the claim. It is not the case of the claimant that either the driver of the motorcycle was possessing a learner license or the said driving license which had been issued, had expired. In that view of the matter, the contention raised by the learned counsel appearing for the claimant, cannot be accepted and it stands rejected. In the facts obtained in the present case clearly disclosing that driver of the offending vehicle namely driver of the motorcycle was not possessing the driving license as on the date of accident, insurer of the motorcycle cannot be made to indemnify the claim. However, we make it clear that the claimant would be at liberty to proceed against owner of the said vehicle for recovering the compensation. Hence, point no. 1 is answered in favour of the insurer and held that insurer of motorcycle had proved that driver of the motorcycle did not possess valid driving licence as on date of accident."
10. Hence, considering the aforesaid proposition of law laid down by this Court, the Insurance Company cannot be statutorily held responsible for liability which arose pursuant to the accident and as such, a case is made out by the appellant - Insurance Company. Hence, on consideration of the entire material on record, the award under challenge deserves to be modified. At this stage, it is also worth to be taken note of the principle of 'pay and recover' which is tried to be insisted upon by the learned advocate representing the opponents, but it appears that the Hon'ble Apex Court in exercise of jurisdiction under Article 142 of the Constitution of India has passed such Page 14 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 order which discretion is not available to this Court and as such, the said submission made by learned advocate appearing for the opponents is not possible to be considered by this Court. Yet another observations of co-ordinate Bench of this Court is also not possible to be unnoticed which is contained in order dated 20.01.2012 rendered in First Appeal 543 of 1992 and the Court deems it proper to reproduce the said observation since the same is also passed upon the decision delivered by the Hon'ble Supreme Court. Hence, the Court deems it proper to quote hereunder:-
"Going through those two decisions, I find that the Supreme Court, in those two cases, passed the direction for payment in exercise of powers conferred on it under Article 142 of the Constitution of India. Therefore, in my opinion, the discretion exercised by the Supreme Court by taking aid of Article 142 of the Constitution of India not being available to this Court, the learned Single Judge was not justified in passing such direction and the said decision of the learned Single Judge cannot be held to be a good law."
11. Hence, the impugned award deserves to be modified to the extent that the same should be recoverable from the owner or driver of the vehicle in question and not from the Insurance Company since there appears to be no independent appeal filed by the opponent with respect to quantum, the award dated Page 15 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022 C/FA/1278/2010 JUDGMENT DATED: 15/07/2022 17.11.2019 is not being disturbed by this Court and the same shall remain unaltered and it is however, observed that the same shall be recoverable from other opponents except present appellant - Insurance Company.
12. In view of the fact that the Insurance Company appears to have deposited the amount and the same is kept in Fixed Deposit, it is ordered to be released with accrued interest in favour of the appellant - Insurance Company within a period of three months from today. It is also made clear that the amount if already disbursed shall not be liable to be recovered from the claimants.
13. The appeal is accordingly partly allowed to the aforesaid extent.
(ASHUTOSH J. SHASTRI, J) phalguni Page 16 of 16 Downloaded on : Sat Dec 24 21:07:35 IST 2022