Gujarat High Court
Hdfc Ergo General Insurance Co. Ltd vs Shivjibhai Shamjibhai Myatra on 11 February, 2025
NEUTRAL CITATION
C/FA/260/2025 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 260 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 260 of 2025
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HDFC ERGO GENERAL INSURANCE CO. LTD.
Versus
SHIVJIBHAI SHAMJIBHAI MYATRA & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant being aggrieved and dissatisfied with the judgment and award dated 6.6.2024 passed by the Motor Accident Claims Tribunal, Gondal in Motor Accident Claim Petition No.89 of 2018.
2. Learned advocate for the appellant seeks complete exoneration of the appellant insurance company on the ground that the deceased was travelling as an unauthorized passenger in the tractor and trailer, whereby sitting capacity is one plus one. He would further submit that the learned Tribunal committed serious error in fastening the liability upon the insurance company at the fist instance and to recover the same from the owner in case where complete breach of terms and conditions of the insurance policy is believed. Upon such Page 1 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025 NEUTRAL CITATION C/FA/260/2025 ORDER DATED: 11/02/2025 undefined submission, he prays to admit the appeal.
3. Having heard learned advocate Mr. Raval for the appellant, I may refer to findings of the learned Tribunal in para 26 to 30, which reads as under:-
"26. The learned advocates for the opponents No.2 & 4 have raised common and similar issue regarding liability to pay compensation to the applicants. They have submitted that at the time of accident, the deceased was travelling in Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628 as an illegal passenger and therefore, the applicants are not entitled to get compensation as the driver and owner of Tractor No.GJ- 12CD-3361 and Trailer No.GJ-12AV-2628 have committed breach of terms and conditions of the policy and allowed the deceased to travel as an illegal passenger in the said involved vehicle. The opponents No.2 & 4 have raised another issue of driving licence. It is submitted that at the time of accident, the driver of Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV- 2628 was not holding valid and effective driving licence to drive the Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628. The driver of the said vehicle was holding driving licence to drive non-transport vehicle, while involved vehicle Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628 is transport vehicle and by driving such vehicle, the driver and owner have committed breach of terms and conditions of insurance policy as well as M.V.Act and therefore, the applicants are not entitled to get compensation from them.
27. In support of the case, the opponent No.2 insurance company has examined Sureshbhai Shankarji Padhiyar, RTO Inspector, Bhuj at Ex.52 wherein he has stated that the driver of Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628 was holding driving licence to drive only Tractor and not trailer. If he wants to drive tractor with trailer in that case he has to obtain driving licence of TT (Tractor with Trailer). He has produced copy of Page 2 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025 NEUTRAL CITATION C/FA/260/2025 ORDER DATED: 11/02/2025 undefined extract of driving licence of driver of Tractor No.GJ- 12CD-3361 and Trailer No.GJ-12AV-2628 at Ex.54. He has been cross examined by the learned advocate for the applicants, but no material thing come out from it. The learned advocate for the opponent No.2 has issued notice to the owner of Tractor No.GJ-12CD-3361 to produce licence of driver, but the owner has not produced any driving licence of driver of Tractor No.GJ- 12CD-3361. The opponent No.2 has produced copies of notice, its A.D.Slip and acknowledgement receipt at Ex.45 to 47.
28. 28. While, the opponent No.4 insurance company has filed affidavit of Pulkit Nalinkumar Sanghavi, Deputy Manager Litigation and TP Claims at Ex.58 wherein he states that the vehicle insured with opponent No.4 is trailer to carry only goods and travelling of any person in the said trailer and to be seated on load body area is specifically prohibited by the M.V.Act and Rules. The opponent No.4 has not obtained any premium to cover the risk of passenger as this is a goods carrying vehicle and deceased was travelling in the said trailer as unauthorized passengers against the provisions and terms and conditions of the policy and therefore, the opponent No.4 is not liable to pay compensation to the applicants. He has been cross examined by the learned advocate for applicants wherein he has admitted that the policy of Trailer No.GJ-12AV-2628 is covering the risk of third party. He has admitted that when the owner commits breach of terms and conditions in that case insurance company can pay compensation and recover it from the owner. No other material thing come out from his cross examination.
29. Now, considering the chief examination of the witness of opponent No.2 insurance company and copy of extract of driving licence of driver of Tractor No.GJ- 12CD-3361 produced at Ex.54 and considering the written arguments of the learned advocate for the opponent No.2 insurance company, it appears that Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV- 2628 is involved in the present accident and at the time Page 3 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025 NEUTRAL CITATION C/FA/260/2025 ORDER DATED: 11/02/2025 undefined of accident, the driver was driving Tractor No.GJ-12CD- 3361 and Trailer No.GJ-12AV-2628. Looking to copy of extract of driving licence of driver of Tractor No.GJ- 12CD-3361 and Trailer No.GJ-12AV-2628 Ex.54, it can be said that driver of Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628 was holding driving licence to drive only Non-Transport vehicle/Tractor and not with Trailer No.GJ-12AV-2628. To drive the Tractor No.GJ- 12CD-3361 and Trailer No.GJ-12AV-2628, licence to drive Tractor with Trailer is required. Therefore, it can be said that at the time of accident, the driver of Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628 was not holding valid and effective driving licence to drive Tractor No.GJ-12CD-3361 with Trailer No.GJ-12AV- 2628 and he was also not qualified to drive such trailer. But, it appears from the record that at the time of accident, the deceased was travelling in Tractor No.GJ- 12CD-3361 and Trailer No.GJ-12AV-2628 as a labourer and going for labour work and at that time, the accident has happened and therefore, at the time of accident, the deceased was third party for Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV-2628. Moreover, it has been held by the Hon'ble Supreme Court of India in the judgments of NATIONAL INSURANCE VS. SWARNA SINGH REPORTED IN AIR 2004 SC 1531, SHAMANNA VS. DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD. REPORTED IN 2018 ACJ 2163 (SC) AND PARMINDER SINGH VS. NEW INDIA ASSURANCE COMPANY LTD. REPORTED IN 2019 ACJ 2401 that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. To sub-serve the ends of justice, the insurer shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle in accordance with law. Moreover, in case of Shamanna and Parmindersingh (supra), the Hon'ble supreme Court Page 4 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025 NEUTRAL CITATION C/FA/260/2025 ORDER DATED: 11/02/2025 undefined has also directed to pay and recover in case of no valid and effective driving licence by the owner/driver of offending vehicle.
30. So, in the case on hand, as discussed above, the opponent No.2 insurance company has established the breach of policy condition to the effect that the driver of Tractor No.GJ-12CD-3361 and Trailer No.GJ-12AV- 2628 was not holding valid and effective driving licence at the time of accident. But, in view of the decisions of Hon'ble Apex Court in the cases of Swarna Singh, Shamanna and Parmindersingh (supra), the opponent No.2 insurance company of Tractor No.GJ-12CD-3361 cannot be exempted from its liability towards insured or against the third party. Therefore, in view of above discussion, the opponent No.2 insurance company should first pay the amount of compensation to the applicants and then at liberty to recover the same from the driver & owner of crane."
4. It appears that the learned Tribunal has followed the judgment of the Hon'ble Apex Court in cases of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650 and Parminder Singh Vs. New India Assurance Company Ltd. Reported in 2019 ACJ 2401. Though, the learned Tribunal has believed that the deceased was travelling in the tractor and trailer, since he was third party, the claimants cannot suffer on such technicalities to pay compensation whether by owner or insurance company. The contract of policy on record is comprehensive policy and insured the vehicle, risk of the owner of vehicle is covered. Thus it is case to follow law laid down in the case of Shamanna (supra) and Parminder Sing (supra) to pass order pay and recover.
4.1 In Shivaraj Versus Rajendra, : 2018 (10) SCC 432, the Hon'ble Apex Court held as under:-
Page 5 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025NEUTRAL CITATION C/FA/260/2025 ORDER DATED: 11/02/2025 undefined "9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.
10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., 2004 3 SCC 297 Mangla Ram Vs. Oriental Insurance Co. Ltd., 2018 5 SCC 656 Rani & Ors. Vs. National Insurance Co. Ltd. & Ors., 2018 9 SCALE 310 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others., 2017 4 SCC 796 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
5. In view of above discussion, I pass following order:-
5.1 The first appeal stands dismissed at admission stage Page 6 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025 NEUTRAL CITATION C/FA/260/2025 ORDER DATED: 11/02/2025 undefined exercising powers under Order 41 Rule 11 of the CPC. The insurance company is hereby exonerated from liability to pay compensation. However, the insurance company at the first instance shall pay and deposit amount of compensation including interest and cost before the learned Tribunal within six weeks from today and it shall be entitled to recover the same from the owner of the vehicle on the strength of this judgment by executing it.
5.2 Consequently connected civil application also stands disposed of.
5.3 R & P, if any, to be sent back to the concerned Court immediately.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 7 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:07:12 IST 2025