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IN
C/FA/2180/2012 JUDGMENT DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2180 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
==============================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
NATIONAL INSURANCE COMPANY LTD
Versus
BHARATBHAI BHIMJIBHAI SONGARA & 2 other(s)
==============================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR Y J PATEL(3985) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 18/01/2022
ORAL JUDGMENT
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 20.03.2012 passed in MACP No.65 of
2010 by the learned Motor Accident Claims Tribunal (Auxi),
Morbi, the appellant Insurance Company has preferred present
appeal under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as the “Act”).
2.0. Heard Mr. Vibhuti Nanavati, learned advocate for the
appellant and Mr. Y.J. Patel, learned advocate for the respondent
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– claimant. Though served, no one appears for respondent nos.1
and 2 i.e. driver and owner of the offending vehicle.
3.0. Following facts emerge from the record of this appeal:
3.1. That the accident took place on 7.12.2009 on Shanala
Road, Morbi. It is the case of the respondent claimant that while
respondent claimant was walking on the said road, the opponent
no.1 came from the otherside on his motorcycle bearing
registration no. GJ-3-CJ-8347 and dashed with the respondent
claimant, because of which serious injuries were sustained. An
FIR was lodged with the Morbi City Police Station being CR-I-244
of 2000 and present claim petition was preferred under Section
166(1) of the Act and claim compensation of Rs.3 lakhs. It was
the case of the respondent claimant that the injured was having
degree in diploma engineering and earned Rs.10,000/- by doing
work of electric wire man. The respondent claimant was
examined at Exh.26 and claimant also relied upon the document
evidence such as FIR at Exh.28, Panchnama of scene of offence
at Exh.29, Injury certificate of applicant at Exh.30, Driving
license at Exh.32, Discharge Card at Exh.33, Medical Bill 34,
Test report of laboratory at Exh.35, Certificate of Prabhat at
Exh.36, Medical Bill at Exh.37, Medical papers at Exh.38. The
Insurance Company examined the clerk of the office of the RTO
at examined at Exh.40 and contended that the driver of the
offending vehicle did not possess any license. The Tribunal
considered the deposition at Exh.40 and noted that the license
at Exh.41 was issued for light motor vehicle on 24.1.1992
whereas the the license of auto rickshaw was issued on
24.07.1987 and the validity of the said license was from
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7.12.2005 to 1.12.2008 whereas the accident has occurred on
7.12.2009 i.e. almost after more than one year from the expiry of
the validity of the license. However, the Tribunal came to the
conclusion that the license is not cancelled and held appellant
Insurance Company to liable to indemnify the award and after
considering the evidence on record, awarded a sum of
Rs.88,300/- with 7.5% interest from the date of filing of claim
petition till its realization while partly allowing the claim petition.
Being aggrieved and dissatisfied with the same, the present
appeal is filed by the present appellant- Insurance Company.
4.0. Mr. Vibhuti Nanavati, learned advocate for the appellant
contended that the Tribunal has committed an error in holding
the appellant Insurance Company liable to satisfy the award. Mr.
Nanavati contended that the Tribunal has considered the
deposition of the RTO officer at Exh.40 and has come to a
definite conclusion that on the date of accident i.e. 7.12.2009
driver of the offending vehicle did not possess the valid license.
Relying upon the judgment of the Coordinate Bench of this Court
in the case of Mahmad Rafik Munnebhai Ansari rendered in CA
No.801 of 2021 in First Appeal No.3173 of 2021 and First Appeal
No.3849 of 2017 dated 22.12.2021, Mr. Nanavati contended that
the Tribunal has committed an error in coming to the conclusion
that the appellant Insurance Company is liable to indemnify the
award. According to Mr. Nanavati in absence of any license, the
appellant Insurance Company deserves to be exonerated by
allowing the appeal.
5.0. Mr. Y.J. Patel, learned advocate for the respondent
claimant however submitted that the though there was no valid
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or substantive license on the date of accident, fact remains that
the driver having license which was not renewed and therefore,
even if said fact is considered by this Court, order of pay and
recover be passed and directing the appellant Insurance
company pay first and then recover. Mr. Patel contended that the
the small amount of Rs.88,300/- awarded, which is just and
adequate, therefore, such direction be issued in peculiar facts
and circumstances of the case.
6.0. No other and further submissions/ contention / grounds
have been raised by the learned advocates for the respective
parties.
7.0. Upon hearing the learned advocates for the parties and on
perusal of the evidence on record, it clearly transpires that the
driver of offending vehicle had license to light motor vehicle and
rickshaw which was valid upto 1.12.2008 whereas the accident
has taken place on 7.12.2009. The question therefore, arise in
this appeal is whether the Tribunal was correct in arriving at a
conclusion that the insurer is liable to indemnify the award even
though there is no valid driving license ?
7.1. The Coordinate Bench of this Court in the case of Mahmad
Rafik Munnebhai Ansari (supra) while considering the issue of
not having a valid license has observed thus:
“11.Tribunal while answering the issue regarding
liability, has held that insurer of the motorcycle had
failed to prove that driver of the motorcycle was not
holding valid and effective driving license at the time
of the accident. It has also been further held that in
the light of the driving license produced at Exh. 43
and 67 which was for the period from 26.06.2009 to
25.06.2009 that driver of the motorcycle was not
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disqualified for obtaining such driving license. The
defence which is available to the insurer to stave off
the liability to be fastened on it by virtue of the
insurance policy taken on the motorcycle is traceable
to section 149(2)(a)(ii) of Motor Vehicle Act, 1988,
which mandates that driver of the offending vehicle is
required to have effective and valid driving license as
on the date of the accident. The Hon’ble Apex Court
in the case of National Insurance Co. Ltd. versus
Swaran Singh and Others reported in 2004(1) GLH
691, has held to the following effect : -
“WHEN ADMITTEDLY NO LICENCE WAS
OBTAINED BY A DRIVER: 82. We have
analysed the relevant provisions of the said Act
in terms whereof a motor vehicle must be
driven by a person having a driving licence. The
owner of a motor vehicle in terms of Section 5
of the Act has a responsibility to see that no
vehicle is driven except by a person who does
not satisfy the provisions of Section 3 or 4 of
the Act. In a case, therefore, where the driver of
the vehicle admittedly did not hold any licence
and the same was allowed consciously to be
driven by the owner of the vehicle by such
person, the insurer is entitled to succeed in its
defence and avoid liability. The matter,
however, may be different where a disputed
question of fact arises as to whether the driver
had a valid licence or where the owner of the
vehicle committed a breach of the terms of the
contract of insurance as also the provisions of
the Act by consciously allowing any person to
drive a vehicle who did not have a valid driving
licence. In a given case, the driver of the vehicle
may not have any hand at all, e.g. a case where
an accident takes place owing to a mechanical
fault or vis-major.
83. In V. Mepherson v. Shiv Charan Singh
[1998 ACJ 601 (Del.)] the owner of the vehicle
was held not to be guilty of violating the
condition of policy by willfully permitting his
son to drive the car who had no driving licence
at the time of accident. In that case, it was held
that the owner and insurer both were jointly
and severally liable.
84. In New India Assurance Co. Ltd. vs. Jagtar
Singh and Others, [1998 ACJ 1074], Hon'ble M.
Srinivasan, CJ, as His Lordship then was,
dealing with the case where a duly licensed
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driver was driving a vehicle but there was a
dispute as to who was driving the vehicle. In
that case the court referred to the judgment in
Kashiram Yadav vs. Oriental Fire & General
Insurance Co. Ltd. [1989 ACJ 1078 (SC)] and
expressed its agreement with the views taken
therein.
85. In National Insurance Co. Ltd. vs. Ishroo
Devi and Others, [1999 ACJ 615] where there
was no evidence that the society which
employed the driver was having knowledge that
the driver was not holding a valid licence, it
was held the insurance company is liable. The
court relied upon the decisions of this Court in
Kashiram Yadav's case (supra), Skandia's case
(supra) and Sohan Lal Passi's case (supra).”
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 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
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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.”
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
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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 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.
sd/-
(R.M.CHHAYA,J)
KAUSHIK J. RATHOD
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