Gujarat High Court
United India Insurance Company Limited vs Jinnatben Sidikbhai & 3 on 18 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1282/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1282 of 2015
TO
FIRST APPEAL NO. 1284 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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
JINNATBEN SIDIKBHAI & 3....Defendant(s)
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Appearance:
MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1.1
RULE SERVED for the Defendant(s) No. 2 - 4
RULE SERVED BY DS for the Defendant(s) No. 1.2 - 1.6
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 18/09/2017
COMMON ORAL JUDGMENT
1. All the 3 appeals are directed against the Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Sep 24 11:21:59 IST 2017 C/FA/1282/2015 JUDGMENT common judgment and award rendered by MACT dated 26.8.2013 and hence, all the 3 appeals were heard together. Mr. Maulik Shelat, learned advocate appears for the appellant. Though served, no one appears for the respondents.
2. The facts stated in this judgment are based as facts as narrated in MACP No.619 of 2011. Record indicates that the accident took place on 26.6.2008 at about 10:00 p.m. It reveals that on the said date, the wife of the original claimant - Jinnatben was traveling in a tempo bearing registration no. GJ14 U5159 and when the said vehicle reached Aasarana Mandan, the jeep bearing registration no. GJ4 V2452 driven in a rash and negligent manner came from the other side and dashed with the tempo. Record indicates that Jinnatben died on the spot because of the accidental injuries. The claimants preferred appeals under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") in all the claim petitions which came to be registered as MACP Nos.619, 620 and 621 of 2011 and claimed total compensation of Rs.4,36,000/, Rs.5,11,000/ and Rs.4,36,000/ respectively. Issues were framed at Exh.21 and the oral evidence of the claimant was recorded at Exh.17.
3. Mr. Maulik Shelat, learned advocate for the Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Sep 24 11:21:59 IST 2017 C/FA/1282/2015 JUDGMENT appellant has contended that the Tribunal has not appreciated the ratio laid down by the Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh & Ors., reported in (2004) 3 SCC 297 and has not permitted the insurance Company to take the defence which is otherwise available under Section 149 namely to the effect that the driver of the insured vehicle was not having a valid licence to drive the vehicle.
4. It is contended that even in the written arguments, it is specifically contended by the appellant - insurance Company that the driver of the insured vehicle i.e. tempo possessed only licence to drive the motorcycle and not even a light motor vehicle. However, the Tribunal has erred in coming to the conclusion that in a claim petition under Section 163A of the Act, such defence cannot be permitted to be raised by the insurance Company.
5. Mr. Shelat relying upon the judgment of this Court (Coram: Ms. H.N. Devani, J.) in First Appeal No. 742 of 2008 contended that in similar situated case, this Court was pleased to quash and set aside the judgment and award and remand back the proceedings for its rehearing.
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C/FA/1282/2015 JUDGMENT
6. On the aforesaid grounds, it is therefore contended that the common judgment and award in all the 3 appeals deserve to be quashed and set aside and the proceedings of respective claim petitions deserve to be remanded back for its rehearing permitting the appellant - insurance Company to raise the defence of invalid licence.
7. Upon perusal of the record and proceedings, it is categorically found that in the written arguments of appellant - insurance Company at Exh.55 in Paragraph 2 thereof, the said specific contention is taken. The appellant - insurance Company has also relied upon 4 other judgments to buttress the said arguments. Considering the ratio laid down by the Apex Court in the case of Swaran Singh (supra), wherein the Apex Court has observed thus: "110. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Sep 24 11:21:59 IST 2017 C/FA/1282/2015 JUDGMENT coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)
(ii) of the said Act."
8. This Court in First Appeal No. 742 of 2008 has also observed thus: "6. A perusal of the impugned judgement and award reveals that according to the Tribunal, it is not permissible for the Insurance Company to raise any defence, including a statutory defence, in relation to a claim petition filed under section 163A of the Act. In this regard, it may be noted that the Supreme Court in the case of National Insurance Company Limited v. Sinitha and others (supra), has held that it is open to the owner or the insurance company, as the case may be, to defeat a claim under section 163A of the Act by pleading and establishing through cogent evidence a fault ground (wrongful act or neglect or default). In a subsequent decision, another Bench of the Supreme Court has disagreed with the view taken by the Supreme Court in the above decision and the matter has been referred to a Larger Bench on the question as to whether it is open for Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Sep 24 11:21:59 IST 2017 C/FA/1282/2015 JUDGMENT the Insurance Company to raise a contention on the question of wrongful act or negligence or default on the part of the owner of the vehicle. However, insofar as the statutory defence under the Act regarding the liability or otherwise of the Insurance Company under the insurance policy is concerned, it cannot be gainsaid that it is open for the Insurance Company to raise such contention and the Tribunal is required to decide the same on merits.
7. In the above view of the matter, this court is of the view that the Tribunal while dealing with the claim petition, should have examined on merits the case pleaded on behalf of the claimants on the question as to whether the deceased was a gratuitous passenger or otherwise, as also the claim of the Insurance Company. Since the Tribunal has not examined the aforesaid aspects on merits, the interests of justice would best be served if the matter is remanded to the Tribunal to decide the said issues afresh on merits."
9. Only on the aforesaid grounds, the impugned common judgment and award dated 26.8.2013 is quashed and set aside and the proceedings of MACP Nos.619, 620 and 621 of 2011 are restored back to the file of the Motor Accident Claims Tribunal and are remanded back for rehearing. The Tribunal is directed to examine the issue again and pass a fresh order as expeditiously as possible after due notice to all the Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Sep 24 11:21:59 IST 2017 C/FA/1282/2015 JUDGMENT parties. All the parties to the claim petitions shall be at liberty to take all contentions and the same may be decided by the Tribunal without in any manner being influenced by the impugned judgment and order as well as any other observations made by this Court.
10. The amount which is deposited by the appellant in each of the appeals shall remain invested in Fixed Deposit Receipts in a cumulative format with a nationalized Bank till the fresh decision is taken by the Tribunal and the original Fixed Deposit Receipts be retained with the Tribunal.
11. Accordingly, the appeals are allowed in the above terms. There shall be no order as to costs. Record and proceedings be transmitted to the Tribunal forthwith.
(R.M.CHHAYA, J.) mrp Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Sep 24 11:21:59 IST 2017