Gujarat High Court
Bajaj Alliance General Insurance ... vs Hiteshkumar Manubhai Joshi on 3 February, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/FA/4327/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4327 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 4327 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD
Versus
HITESHKUMAR MANUBHAI JOSHI
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
CHETANKUMAR K SHAH(7364) for the Defendant(s) No. 1
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 3,4
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 03/02/2020
ORAL JUDGMENT
Heard learned advocate Mr.Maulik Shelat for the appellant insurance company and learned advocate Mr.Chetankumar Shah for respondent No.1-the original claimant. Respondent No.2 was driver of the offending truck who came to be deleted before the Motor Accident Claims Tribunal pursuant to order below Page 1 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021 C/FA/4327/2019 JUDGMENT Exh.22. The rest of the respondents are served but they are not chosen to be appeared.
2. The present appeal by the appellant insurance company preferred under Section 173 of the Motor Vehicles Act, 1988 is directed against judgment and award dated 08th February, 2019 passed by Motor Accident Claims Tribunal (Main), Arvalli at Modasa in Motor Accident Claim Petition No.1912 of 2013 (Old No.45 of 2012).
2.1. This Court issued notice in the appeal for final disposal on 17th October, 2019. The insurance company was granted stay of the impugned judgment and award on condition of depositing the entire awarded amount together with the cost and interest, by the order passed in the Civil Application. The Tribunal awarded to the claimant total Rs.05,44,488/- with interest at 9% per annum from the date of claim petition till realization holding opponent No.2-the owner and opponent No.3-the appellant insurance company jointly and severally liable to pay compensation.
2.2. With request and consent of learned advocates for the parties and having regard to the limited issue raised by the appellant, the First Appeal was taken up for final consideration.
3. The vehicular accident took place on 30th May, 2010, when the claimant was riding his scooter bearing No.GJ-9-1500 and was coming towards his home.
Page 2 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021C/FA/4327/2019 JUDGMENT According to the case, the scooter was in moderate speed and was driven in the left side of the road. When the claimant was passing through the place of accident, which was near the outskirts of village Gulabpura, Dahegam-Bayad Road, at that time opponent No.1 driving his truck bearing registration No.GJ-9- 18U-6480 on wrong side, came in rash and negligent manner and hit the scooter. The claimant fell down on the road. The tyre of the said truck rolled over the leg of the claimant. The claimant filed the claim petition seeking compensation which culminated into the judgment and award as above wherein the Tribunal applied relevant parameters to assess the compensation for the injured claimant.
4. This Court was not required to go into any aspect of merit on the question of determination of compensation amount as above since the same has not been challenged in the appeal. The only contention canvassed in the grounds of the memorandum of appeal and raised in course of the arguments on behalf of the appellant company was that on the date of the accident the offending truck did not have the permit to ply the vehicle on road. On the other hand, on behalf of the respondent-claimant, the judgment and award was defended.
5. As noticed above, the date of the accident was 30th May, 2010. In order to submit and substantiate the plea that on the said date, the offending vehicle truck did not have the permit, learned advocate for the appellant insurance company Page 3 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021 C/FA/4327/2019 JUDGMENT produced certified copy on the record of evidence of one Patel Harsh Dilipkumar working as Assistant Inspector of Road Transport Office, Modasa, Arvalli (Exh.46). He gave his evidence with specific reference on the aspect of permit to confirm that the truck had been holding the permit for the period from 05th May, 2005 till 04th May, 2010. Thereafter the owner of the vehicle had asked for No-objection Certificate on 16th August, 2011 for transferring the vehicle. The next owner obtained the permit from the Road Transport Office on 15th September, 2011. The validity of the said permit was from 15th September, 2011 to 14th September, 2016.
5.1. It was thus shown that on the date of accident, that is on 30th May, 2010, the truck did not possess the permit since the permit expired on 04th May, 2010. Both the earlier permit which expired on 04th May, 2010 and the subsequent permit which was obtained on 15th September, 2011 were produced on record (Exh.47, 48).
5.2. The evidence of Mohitsinh Hasuji Rana who was serving with the appellant Bajaj Allianz General Insurance Company Limited (Exh.43) also revealed in clear terms that the permit certificate of truck No.GJ-18U-6480 was valid upto 04th May, 2010, whereas the accident in question took place on 30th May, 2010. Therefore on the date of accident there was no valid permit of the truck bearing No.GJ-18U-6480. The certified copies of all the above relevant evidence on the point raised, were produced before the Court Page 4 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021 C/FA/4327/2019 JUDGMENT for perusal. Therefrom it clearly transpired and stood proved that the offending vehicle truck was being plied without permit on the date of accident, that is on 30th May, 2010.
5.3. When we see the judgment and award of the Tribunal the liability part is discussed in paragraph 9 of the judgment and award. It could be seen that the Tribunal noticed evidence of the employee of the appellant insurance company (Exh.43) as well as the other evidence highlighted above. The Tribunal recorded that the permit of the offending truck was valid upto 04th May, 2010, whereas the accident took place on 30th May, 2010. The Tribunal also had the fact before it that the subsequent obtaining of the permit was on 15th September, 2011. In other words, the facts and evidence before the Tribunal made it an undisputed position that on the date of accident, the permit was not in existence. However, the Tribunal reasoned that when the insurer sought to avoid its liability on the ground that the offending vehicle was driven without valid permit, since it had insured the vehicle without verifying the fact that the permit of the vehicle was valid or not, it cannot seek exemption from the liability. The Tribunal misdirected itself in its reasoning.
5.4. Under Section 149(2) of the Motor Vehicles Act, 1988 one of the defence available to the insurer is that the offending vehicle was being plight without permit. The fact that the permit was in existence for the offending vehicle was one to be Page 5 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021 C/FA/4327/2019 JUDGMENT proved by the owner. The burden would lie on the owner to primarily prove the existence permit.
5.5. The Supreme Court in Amrit Paul Singh v. TATA AIG General Insurance Co. Ltd. [2018(7) SCC 558] observed and held as under, "... that apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insurer to prove that he had a permit of the vehicle. In such a situation, the onus cannot be fast on the insurer. ...."
5.6. When the facts undisputedly showed and established that on the date of the accident, that is on 30th May, 2010, the offending truck insured with the appellant insurance company did not possess the permit to ply on the road, the insurance company could not have been held liable. Mere fact that the insurance policy was in vogue was no answer. When the vehicle was plied on the road without permit, it amounted to violation of terms and conditions of the policy. In such circumstances, it was erroneous in law to fasten the liability on the appellant insurance company to pay the compensation. The Tribunal committed an apparent error in holding that the appellant insurer was liable to pay compensation and further fastening the liability on the appellant jointly and severally.
Page 6 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021C/FA/4327/2019 JUDGMENT
6. Even as the appellant insurance company is held to be not liable to pay the compensation in law, the next question arises is whether the appellant should be asked in the first instance to pay the compensation to the claimant with liberty reserved for it to recover the amount from the owner thereafter.
6.1. The facts of the decision of the Supreme Court in National Insurance Company Limited v. Challa Bhupendra Rao [AIR 2004 SC 4882] were that the vehicle was being plied without permit on the date of accident. The Apex Court observed, "The residual question is what would be the appropriate direction. Considering the beneficial object of the act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount form the insured. For the purpose of recovering the amount paid from the owner, 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 tissue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall 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 Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the 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 Page 7 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021 C/FA/4327/2019 JUDGMENT securities to be furnished or form any other property or properties of the owner of the vehicle i.e the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured."
(Para 13) 6.2. In another more recent decision of the Apex Court in Amrit Pal Singh (supra) the offending truck involved in the accident was not having the requisite permit as required under Section 66(1) of the Motor Vehicles Act, 1988. The Supreme Court in paragraph 24 of the judgment in terms of the final direction referred its earlier decision in National Insurance Company Limited v. Swarna Singh [(2004) 3 SCC 297] stated as under.
"Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the situation that the insure shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swarna Singh (supra) and other cases pertaining to pay and recover principle." (Para 24) 6.3. In the facts of the case and looking to the beneficial purpose of the enactment of the Motor Vehicles Act and further having regard to the principles laid down in the aforementioned judgments, the direction to pay and recover deserves to be issued against the appellant insurer which would serve the ends of justice.
7. Resultantly, the present First Appeal is Page 8 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021 C/FA/4327/2019 JUDGMENT partly allowed by holding that the appellant insurance company is absolved from liability of paying the compensation to the claimants, however at the same time it is provided and directed that the appellant shall satisfy and pay the amount of compensation as awarded by the Tribunal together with the cost and interest by paying the same to the claimants in the first instance and thereafter the appellant shall be at entitled to recover the same from the owner in accordance with law.
8. This Court has already passed order in Civil Application No.1 of 2019 directing the appellant insurance company to deposit the amount which is deposited and stands invested in terms of the award of the Accident Claims Tribunal.
9. The impugned judgment and award stands modified to the aforesaid extent and in the terms and directions as above.
The appeal is allowed in part accordingly.
ORDER IN CIVIL APPLICATION The Civil Application will not require any order in view of the judgment delivered in the main appeal and the same stands disposed of accordingly.
(N.V.ANJARIA, J) Anup/C.M. JOSHI Page 9 of 9 Downloaded on : Sat Feb 13 05:55:44 IST 2021