Gujarat High Court
United India Insurance Company Limited vs Jayrambhai Mavjibhai Desai (Rabari) & 2 on 3 May, 2016
Author: S.G.Shah
Bench: S.G.Shah
C/FA/2515/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2515 of 2015
With
CIVIL APPLICATION NO. 586 of 2016
In
FIRST APPEAL NO. 2515 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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UNITED INDIA INSURANCE COMPANY LIMITED.....Appellant(s)
Versus
JAYRAMBHAI MAVJIBHAI DESAI (RABARI) & 2....Defendant(s)
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Appearance:
MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1
MR MAKBUL I MANSURI, CAVEATOR for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 03/05/2016
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C/FA/2515/2015 CAV JUDGMENT
CAV JUDGMENT
1. Heard learned advocate Mr. M. J. Shelat for the appellant - insurance company and learned advocate Mr. M. I. Mansuri for original claimant being defendant No.1. Rest of the defendants being driver and owner of the vehicle in question, which was insured by the appellant and, therefore, their interest is common. However, though they are served, they have chosen not to appear and to contest the appeal. Considering the facts and circumstances, and the fact that defendant No.1 is appearing on caveat, notice of admission was issued for final disposal and, therefore, appeal is heard for final disposal at such admission stage itself.
2. The main grievance of the appellant - insurance company is to the effect that insurance company cannot be held responsible to indemnify the owner, when vehicle flied by the driver, who was not having proper licence to drive such transport vehicle and, therefore, it amounts to breach of law and conditions of policy. It is his case that, such question is squarely covered by the decision of the Honourable Apex Court in case of New India Assurance Company Ltd. vs. Roshanben Rahemnasha Fakir & Ors. reported in 2008 (8) SCC 253. Therefore, it is submitted that the tribunal should have appreciated the evidence in the form of R. C. Book, insurance policy of insured vehicle, which confirm that it is a goods carrying vehicle and when it is admitted position that the Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed May 04 05:32:20 IST 2016 C/FA/2515/2015 CAV JUDGMENT person who was driving the vehicle having a licence to drive only light motor vehicle but not having endorsement to drive transport vehicle, the insurance company cannot be held responsible. For the purpose, he is relying upon copy of abstract of driving licence at exhibit 43 and evidence of a staff of RTO at exhibit 42. Surprisingly it is also pleaded that tribunal has erred in relying upon the decision in case of S. Iyyapan vs. M/s. United India Insurance Company reported in AIR 2013 SC 2262, contending that in reported case the date of accident was 23.05.1998 whereas working effect from 28.03.2001 category of the vehicle is modified in the Act and Rules and, therefore, such judgment is not applicable to the facts of present case.
3. In support of such submission, appellant is relying upon the decision dated 08.05.2014 by the Single Judge of this High Court in First Appeal No. 3289 of 2013, wherein while allowing the appeal of present appellant, this Court has held that the insurance company is entitled to avoid its liability qua the insurer. However, if we peruse the entire judgment practically learned Single Judge has also relied upon several other decisions of the Honourable Supreme Court and, thereafter, finally it is held that though insurance company is not liable to indemnify the owner, it has to first satisfy the award and thereafter recover the same from the owner and driver of the vehicle in question. The relevant para 23 and 24 of such judgment read as under:
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HC-NIC Page 3 of 7 Created On Wed May 04 05:32:20 IST 2016 C/FA/2515/2015 CAV JUDGMENT "23. At this juncture it may be apposite to refer to the decision of the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Nanjappan (supra), wherein it has been held thus :
8. Therefore, while setting aside the judgement of the High Court, we direct in terms of what has been stated in Baljit Kaur case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent claimants within three months from today. For 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 executing court concerned 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. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached as a part of the security.
If necessity arises, the executing court shall take assistance of the Regional Transport Office concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default, it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.
24.In the opinion of this court, while holding that the insurance company is liable to first satisfy the award and then recover the same from the owner, the course of action adopted in the above decision of the Supreme Court is required to be followed so as to secure the interests of the appellant insurance company. Accordingly, for the purpose of recovering the amount of compensation from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject- matter of determination before the Tribunal and the issue is Page 4 of 7 HC-NIC Page 4 of 7 Created On Wed May 04 05:32:20 IST 2016 C/FA/2515/2015 CAV JUDGMENT decided against the owner and in favour of the insurer. Pursuant to the order dated 07.01.2014 made by this court in the Civil Application No.13535 of 2013 which had been filed seeking stay of the impugned award, the appellant insurance company has deposited the entire decreetal amount with the Tribunal. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached as a part of the security. If necessity arises, the executing court shall take assistance of the Regional Transport Office concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default, it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured."
3.1 Such view is taken by the learned Single Judge by taking care of all relevant decisions and now it is not necessary to reproduce all such discussion again, when this Court is relying upon such final determination.
4. In addition to decisions relied upon by the learned Single Judge in such unreported decision in First Appeal No. 3289 of 2013, it would be appropriate to recollect the decision between Balbir Kaur and Anr. v. New India Assurance Co. Ltd. and Ors. reported in AIR 2009 SC 2460.
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5. In view of such facts and circumstance, when tribunal has though discussed such issue, has failed to observe and confirm that though insurance company has to satisfy the award, it is not responsible to indemnify the driver and owner and to that extent if insurance company has deposited the amount then it can recover it from the driver and owner as observed in judgment dated 08.05.2014 in First Appeal No. 3289 of 2013. To that extent, appeal needs to be allowed so as to clarify such issue.
6. In view of above facts and circumstance, it would not be necessary to enter into factual minute details regarding incident as well as quantum of compensation and, therefore, when such fact is well described in the impugned judgment, I have avoided to reproduce it except to recollect that on 21.07.2009 the driver of the jeep No. GJ 19 T 2143 had drived his vehicle in rash and negligent manner and hence he lost control over the vehicle and thereby he dashed with the vehicle of the defendant No.1, which resulted into multiple fracture and other serious injuries to the claimant - defendant No.1. For such injuries defendant No.1 has preferred a claim petition before the MACT, Ahmedabad (Rural) claimed Rs.2,25,000/- towards compensation. By impugned judgment and order dated 16.10.2015 the MACT has awarded Rs.1,29,300/- towards compensation fixing liability of driver, owner and insurance company of jeep jointly.
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7. In view of such facts and circumstances, appeal is partly allowed. Thereby though insurance company has to deposit amount awarded by the tribunal, and thereby, though insurance company is liable to first satisfy the award, it is made clear that it can recover it from the driver and owner of the jeep.
8. Accordingly, for the purpose of recovering the amount of compensation from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned 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.
9. The appeal, accordingly, stands allowed in the above terms. Records and Proceedings be sent back forthwith.
10. In view of order passed in main appeal, Civil Application does not survive and the same is disposed of.
(S.G.SHAH, J.) drashti Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed May 04 05:32:20 IST 2016