{"id":107591,"date":"2008-09-17T00:00:00","date_gmt":"2008-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/new-vs-rameshbhai-on-17-september-2008"},"modified":"2016-05-21T19:12:48","modified_gmt":"2016-05-21T13:42:48","slug":"new-vs-rameshbhai-on-17-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/new-vs-rameshbhai-on-17-september-2008","title":{"rendered":"New vs Rameshbhai on 17 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
New vs Rameshbhai on 17 September, 2008<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/789\/2008\t 15\/ 15\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 789 of 2008\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 2394 of 2008\n \n\nIn\nFIRST APPEAL No. 789 of 2008\n \n\n \n\n\n \n\nFor\nApproval and Signature: \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE\nH.K.RATHOD \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n\n\n \n\n=========================================================\n\n \n\nNEW\nINDIA ASSURANCE CO. LTD. - Appellant(s)\n \n\nVersus\n \n\nRAMESHBHAI\nGOPALJI LAKHANI & 2 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nMEGHA JANI for\nAppellant(s) : 1, \nNone for Defendant(s) : 1, \nMR HM PRACHCHHAK\nfor Defendant(s) : 2 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17\/09\/2008 \n\n \n\n \nORAL\nORDER<\/pre>\n
\tDraft
\namendment is allowed. Appellant to carry out the same within a period
\nof two days and supply the amended copy of appeal to other side.\n<\/p>\n
 1.\tHeard learned advocate Ms.Megha Jani for  appellant ?  Assurance Co.\n<\/p>\n
2.\tIn
\nthe present appeal, the appellant ?  Assurance Co. has challenged
\nthe  award passed by MAC Tribunal, Porbandar in MACP No.93 of 1999
\ndated 31.5.2006  whereby the claims Tribunal has awarded Rs.62,730\/-
\nwith 7.5% interest in favour of respondents claimants.\n<\/p>\n
3.\tLearned
\nadvocate Ms.Jani has raised contention before this Court that claims
\nTribunal has failed to appreciate that the person driving the vehicle
\nwas not holding driving licence on the date of accident ?  6.7.1998.
\nThe driving license of the driver of the motorcycle at Exh-42 shows
\nthat the license was issued for the first time on 25.4.2000 after the
\naccident took place. She further submitted that neither the claimant
\nnor the owner of the vehicle has succeeded in establishing that the
\ndriver was holding a valid driving licence when the accident
\nhappened.  Therefore, in view of absence of any driving licence, the
\nTribunal ought to have held that there was breach of terms and
\nconditions of policy and ought to have exonerated the Insurance Co.
\nShe also raised contention that as per the policy, only a person
\nholding an effective driving licence at the time of accident and who
\nis not disqualified from holding for obtaining such a licence is
\nentitled to drive the vehicle insured. This condition is violated in
\nfacts of this case. She also raised contention that the claims
\nTribunal has committed an error in holding that Insurance Co. would
\nbe liable to pay compensation in view of the Apex Court’s decision in
\ncase of National Insurance Co. Ltd. v. Swaran Singh,<\/a> 2004 (3) SCC 297
\nand also committed an error in appreciating the ratio of the
\naforesaid case. She also submitted that each and every case, even
\nwhen there is a patent breach of terms and conditions of policy, the
\nInsurance Co. would still be liable to pay compensation and indemnify
\nthe insured. She also submitted that quantum awarded by the claims
\nTribunal is on higher side. The Parag D. Karia in his deposition vide
\nExh.41 has admitted before the claims Tribunal that looking to the
\ndate of birth ?  11.3.1982 he was minor at the time when the
\naccident occurred. Meaning thereby she canvassed the submission that
\nminor is not qualified to have the driving licence according to Motor
\nVehicle Rules. She relied upon the decision of Apex Court in support
\nof her submissions in case of Oriental Insurance Co. Ltd. v. Meena
\nVariyal and others<\/a> reported in 2007 ACJ 1284. She relied upon Para.6,
\n8 and 13 and pointed out that in case when a clear breach established
\nfrom the  record that driver of the vehicle was not holding valid
\ndriving licence at all then, Insurance Co. should not be held liable
\nfor payment of compensation. She also submitted that in the recent
\ndecision of Meena Variyal (supra), the decision in case of Swaran
\nSingh (supra) has been clarified and distinguished by the Apex Court.
\nShe also relied upon the decision of Apex Court in case of Sardari
\nand others v. Sushil Kumar and others<\/a> reported in 2008 ACJ 1307.
\nExcept that, no other submission is made by learned advocate Ms.Megha
\nJani.\n<\/p>\n
4.\tI
\nhave considered the submissions made by learned advocate Ms.Jani and
\nalso considered the decisions which have been cited by learned
\nadvocate Ms.Jani. I have also perused the award passed by claims
\nTribunal, Porbandar. The accident occurred on 6.7.1998 at about 1.00
\np.m., when applicant was going to his house from Mahendra &
\nBrothers, Sutarwada, on his bicycle on left side with a slow speed.
\nWhen he reached  near railway station road, opposite Harish
\nSweet-Mart, at that occasion, opponent No.1 came with Hero-Honda
\nMotorcycle No.GJ-11-H-6742 with rash and negligent driving and dashed
\nwith the claimant and claimant received the injuries of fracture in
\nvarious part of the body. The claimant was immediately admitted to
\nBhavsinhji Hospital  at Rajkot and remained as an indoor patient for
\nabout 12 days and thereafter, for 9 months, he remained under the
\ntreatment. The claimant has claimed Rs.80,800\/- before the claims
\nTribunal. The opponent Nos.1 and 2 have not remained present, though
\nnotice was served. The appellant ?  Insurance Co. has filed its
\nwritten statement vide Exh.17 raising contention that opponent No.1
\nwas not having licence at all at the time when the accident occurred.
\nThereafter, the claims Tribunal has framed the issue vide Exh.20. The
\nclaims Tribunal has come to the conclusion that held 15% negligence
\nof the claimant and 85% negligence of opponent No.1. Thereafter, the
\nclaims Tribunal has discussed the evidence on record for deciding the
\nquantum of compensation. Thereafter, the claims Tribunal has examined
\nthe arguments canvassed by Insurance Co. in Para.12. Vide Exh.33, the
\ninsurance policy was produced by appellant before the claims
\nTribunal. The period of insurance policy from 11.5.1998 to 21.5.1999
\nwhich includes the date of accident ?  6.7.1998. Learned advocate
\nMs.Megha Jani has not disputed the fact that claimant is a third
\nparty, who is met with an accident by opponent No.1. The only
\ncontention is that in light of the facts that opponent No.1 was not
\nhaving driving licence, whether the Insurance Co. can be held liable
\nfor payment of compensation or not. The claims Tribunal has
\nconsidered that looking to the date of birth ?  11.3.1982, at that
\noccasion the opponent No.1 was 16 years  and 4 months, therefore,
\nnaturally he is not qualified to possess valid driving licence on the
\ndate of accident. The claims Tribunal has considered the decision of
\nApex Court in case of United India Insurance Co. ltd. v. Lehru and
\nothers reported in 2003 GLR 1771 and also considered Section 149(4)
\nand in the case of National Insurance Co. Ltd. v. Kamla reported in
\n2002 GLR 916 and advocate of the appellant –  Insurance Co. has
\nrelied upon the decision of Apex Court reported in 1989 (2) UJ 659
\nand 2002 (2) GLH 50. Over and above, the claims Tribunal has
\nconsidered the decision of Apex Court in case of Swaran Singh (supra)
\nand considering the aforesaid decision, the claims Tribunal has come
\nto the conclusion that it is a liability of the Insurance Co., if in
\ncase of breach of terms and conditions of the insurance policy by
\nopponent No.1 not having the licence to pay the compensation to the
\nclaimant ?  third party and then, to recover from the owner insured.
\nTherefore, accordingly award has been passed with a direction to pay
\nthe compensation to the claimant of Rs.62,730\/-.\n<\/p>\n
5.\tIn
\nthis case, the claimant is a third party dashed by opponent No.1, who
\nwas not having driving licence at all and not qualified to possess
\nthe driving licence. Learned advocate Ms.Jani heavily relied upon the
\ndecision of Apex Court in case of Meena Variyal (supra). The facts of
\nthat case are totally different than the facts of present case. The
\nliability of the Insurance Co. in case of death of regional manager
\nof company which owned the car when it dashed against a tree. The
\nclaimant deposed that car was being driven by the driver and deceased
\nwas a passenger. The driver who was in the card lodged the FIR
\nstating that deceased was driving the car at the time of accident.
\nThe Insurance Co. seeks to avoid its liability on the ground that
\npolicy did not cover the employee of the owner company who was
\ndriving the car, deceased was not a third party in terms of the
\npolicy or in terms of the Act, Act did not provide for statutory
\ncoverage of such a person, there was no special contract and deceased
\ndid not possess a driving licence. These are the facts that statutory
\nliability is not of the Insurance Co. because the deceased was not a
\nthird party but, he was an employee of the co. and there was no
\nspecial contract to have the risk of such employee and therefore, the
\nInsurance Co. raised the contention. But, the entire decision of Apex
\nCourt based on the facts and on these facts, decision of Apex Court
\nin case of Swaran Singh (supra)  has been considered by the Apex
\nCourt. Therefore, the reliance which has been placed by learned
\nadvocate Ms.Jani is not helpful to her that looking to the facts of
\npresent case, the Insurance Co. is not liable.\n<\/p>\n
6.\tThe
\nApex Court has in case of Oriental Insurance Co. Ltd. v.  Meena
\nVariyal<\/a> reported in 2007 ACJ 1284, in Para.14 has observed as under :\n<\/p>\n
?S14.\t\tIt
\nis difficult to apply the ratio of this decision to a case not
\ninvolving a third party. The whole protection provided by Chapter XI
\nof the Act is against third party risk. Therefore, in a case where a
\nperson is not a third party within the meaning of the Act, the
\ninsurance company cannot be made automatically liable merely by
\nresorting to the Swaran Singh (supra) ratio.  This appears to be the
\nposition. This position was expounded recently by this Court in
\nNational Insurance Co. Ltd. Vs. Laxmi Narain Dhut [2007 (4) SCALE
\n36].  This Court after referring to Swaran Singh (supra) and
\ndiscussing the law summed up the position thus:\n<\/p>\n
“In
\nview of the above analysis the following  situations emerge:\n<\/p>\n
1.\tThe
\ndecision in Swaran Singh’s case (supra) has no application to cases
\nother than third party risks.\n<\/p>\n
2.\tWhere
\noriginally the licence was a fake one, renewal cannot cure the
\ninherent fatality.\n<\/p>\n
3.\tIn
\ncase of third party risks the  insurer has to indemnify the amount
\nand if so advised, to recover the same from the insured.\n<\/p>\n
4.\tThe
\nconcept of purposive interpretation has no application to cases
\nrelatable to Section 149 of the <\/p>\n
Act.\n<\/p>\n
The
\nHigh Courts\/Commissions shall now consider the mater afresh in the
\nlight of the position in law as delineated above.”\n<\/p>\n
We
\nare in respectful agreement with the above view.?S<\/p>\n
6.1\tTherefore,
\nthe ratio which has been decided and laid down in aforesaid decision
\nis relevant. Other paragraphs are only discussion of law and
\ntherefore, this decision which has been heavily relied upon is not
\napplicable to the facts of this case because in this case, claimant
\nis  third party admitted by Ms.Jani that  risk of third party is
\ncovered.\n<\/p>\n
7.\tSimilarly,
\nthe Apex Court has in case of Sardari and others v. Sushil Kumar and
\nothers<\/a> reported in 2008 ACJ 1307, in Para.6, observed as under :\n<\/p>\n
?S6.\tAlthough,
\nin terms of a contract of insurance, which is in the realm of private
\nlaw domain having regard to the object for which Section 147 and 149
\nof the Act had been enacted, the social justice doctrine as envisaged
\nin the preamble of the Constitution of India has been given due
\nimportance. The Act, however, itself provides for the cases where the
\ninsurance Company can avoid its liability. Avoidance of such
\nliability would largely depend upon violation of the conditions of
\ncontract of insurance. Where the breach of conditions of contract is
\nex-facie apparent from the records, the Court will not fasten the
\nliability on the Insurance Company.  In certain situations, however,
\nthe Court while fastening the liability on the owner of the vehicle
\nmay direct the Insurance Company to pay to the claimants the awarded
\namount with liberty to it to recover the same from the owner.?S<\/p>\n
7.1\tIn
\nthe aforesaid decision, the Apex Court has considered that in certain
\nsituation, however, the Court while passing the liability on the
\nowner of the vehicle may direct the Insurance Co. to awarded the
\namount with liberty to recover the same from the owner.\n<\/p>\n
8.\tRecently,
\nthe Apex Court has examined very question in case of Oriental
\nInsurance Co. Ltd. v. Zaharulnisha & Others<\/a> reported in 2008 AIR
\nSCW 3251. Relevant observations of the said decision are in Para.10,
\n14, 15, 16, 17,18 and 19 which are quoted as under :\n<\/p>\n
?S10.\tIn
\norder to appreciate the rival contentions of the learned counsel for
\nthe parties, the legal question that needs to be considered by us is
\n:  Whether the appellant  insurance company could be held liable to
\npay the amount of compensation for the default of the scooterist who
\nwas not holding licence for driving two wheeler scooter but had
\ndriving licence of different class of vehicle in terms of Section 10
\nof the MV Act?\n<\/p>\n
14.\tSub-section
\n(1) of Section 149 casts a liability upon the insurer to pay to the
\nperson entitled to the benefit of the decree ?Sas if he was the
\njudgment debtor??, that is, the Statute raises a legal fiction to
\nthe effect that for the said purpose the insurer would be deemed to
\nbe a judgment-debtor in respect of the liability of the insurer in
\nrespect of third party risks.\n<\/p>\n
15.\tIt
\nis beyond any doubt or dispute that under Section 149<\/p>\n
(1)\tof
\nthe MV Act, insurer, to whom notice of bringing of any proceeding for
\ncompensation has been given, can defend the action on any of the
\ngrounds mentioned therein.  A three- Judge Bench of this Court in
\nNational Insurance Company Limited v. Swaran Singh<\/a> [(2004) 3 SCC 297]
\nhas extensively dealt with the meaning, application and
\ninterpretation of various provisions, including Ss. 3(2), 4(3), 10(2)
\nand 149 of the MV Act.  In paragraph 47 of the judgment, the learned
\nJudges have held that if a person has been given a licence for a
\nparticular type of vehicle as specified therein, he cannot be said to
\nhave no licence for driving another type of vehicle which is of the
\nsame category but of different type.  As for example, when a person
\nis granted a licence for driving a light motor vehicle  he can drive
\neither a car or a jeep and it is not necessary that he must have
\ndriving licence both for car and jeep separately.  In paragraph 48,
\nit is held as under: ?SFurthermore, the insurance company with a
\nview to avoid its liabilities is not only required to show that the
\nconditions laid down under Section 149(2)(a) or (b) are satisfied but
\nis further required to establish that there has been a breach on the
\npart of the insured.  By reason of the provisions contained in the
\n1988 Act, a more extensive remedy has been conferred upon those who
\nhave obtained judgment against the user of a vehicle and after a
\ncertificate of insurance  is delivered in terms of Section 147(3).
\nAfter a third party has obtained a judgment against any person
\ninsured by the policy in respect of a liability required to be
\ncovered by Section 145, the same must be satisfied by the insurer,
\nnotwithstanding that the insurer may be entitled to avoid or to
\ncancel the policy or may in fact have done so.  The same obligation
\napplies in respect of such a liability but who would have been
\ncovered if the policy had covered the liability of all persons,
\nexcept that in respect of liability for death or bodily injury.??\n<\/p>\n
16.\tThe
\njudgment proceeds to hold that under the MV Act, holding of a valid
\ndriving licence is one of the conditions of contract of insurance.
\nDriving of a vehicle without a valid licence is an offence.  However,
\nthe question herein is whether a third party involved in an accident
\nis entitled to the amount of compensation granted by the Motor
\nAccidents Claims Tribunal although the driver of the vehicle at the
\nrelevant time might not have a valid driving licence but would be
\nentitled to recover the same from the owner or driver thereof.  It is
\ntrite that where the insurers, relying upon the provisions of
\nviolation of law by the assured,  take an exception to pay the
\nassured or a third party, they must prove a willful violation of the
\nlaw by the assured.  In some cases, violation of criminal law,
\nparticularly violation of the provisions of the MV Act, may result in
\nabsolving the insurers but, the same may not necessarily hold good in
\nthe case of a third party.  In any event, the exception applies only
\nto acts done intentionally or ?Sso recklessly as to denote that the
\nassured did not care what the consequences of his act might be??.
\nThe provisions of sub- sections (4) and (5) of Section 149 of the MV
\nAct may be considered as to the liability of the insurer to satisfy
\nthe decree at the first instance.  The liability of the insurer is a
\nstatutory one.  The liability of the insurer to satisfy the decree
\npassed in favour of a third party is also statutory.\n<\/p>\n
17.\tThe
\nlearned judges having considered the entire material and relevant
\nprovisions of the MV Act and conflict of decisions of various High
\nCourts and this Court on the question of defences available to the
\ninsurance companies in defending the claims of the victims of the
\naccident arising due to the harsh and negligent driving of the
\nvehicle which is insured with the insurance companies, proceeded to
\nrecord the following summary of findings.\n<\/p>\n
(i)\tChapter
\nXI of the Motor Vehicles Act, 1988 providing compulsory insurance of
\nvehicles against third party risks is a social welfare legislation to
\nextend relief by compensation to victims of accidents caused by use
\nof motor vehicles. The provisions of compulsory insurance coverage of
\nall vehicles are with this paramount object and the provisions of the
\nAct have to be so interpreted as to effectuate the said object.\n<\/p>\n
(ii)\tInsurer
\nis entitled to raise a defence in a claim petition filed under
\nSection 163A or Section 166 of the Motor Vehicles Act, 1988 inter
\nalia in terms of Section 149(2)(a)(ii) of the said Act.\n<\/p>\n
(iii)\tThe
\nbreach of policy condition, e.g. Disqualification of driver or
\ninvalid driving licence of the driver, as contained in Sub- section
\n(2)(a)(ii) of Section 149, have to be proved to have been committed
\nby the insured for avoiding liability by the insurer. Mere absence,
\nfake or invalid driving licence or disqualification of the driver for
\ndriving at the relevant time, are not in themselves defences
\navailable to the insurer against either the insured or the third
\nparties. To avoid its liability towards insured, the insurer has to
\nprove that the insured was guilty of negligence and failed to
\nexercise reasonable care in the matter of fulfilling the condition of
\nthe policy regarding use of vehicles by duly licensed driver or one
\nwho was not disqualified to drive at the relevant time, (iv) The
\ninsurance companies are, however, with a view to avoid their
\nliability must not only establish the available defence(s) raised in
\nthe said proceedings but must also establish ??breach?” on the part
\nof the owner of the vehicle; the burden of proof wherefor would be on
\nthem.\n<\/p>\n
(v)\tThe
\ncourt cannot lay down any criteria as to how said burden would be
\ndischarged, inasmuch as the same would depend upon the facts and
\ncircumstance of each case.\n<\/p>\n
(vi)\tEven
\nwhere the insurer is able to prove breach on the part of the insured
\nconcerning the policy condition regarding holding of a valid licence
\nby the driver or his qualification to drive during the relevant
\nperiod, the insurer would not be allowed to avoid its liability
\ntowards insured unless the said breach or breaches on the condition
\nof driving licence is\/ are so fundamental as are found to have
\ncontributed to the cause of the accident. The Tribunals in
\ninterpreting the policy conditions would apply ?Sthe rule of main
\npurpose?? and the concept of ?Sfundamental breach?? to allow
\ndefences available to the insured under Section 149(2) of the Act.\n<\/p>\n
(vii)\tThe
\nquestion as to whether the owner has taken reasonable care to find
\nout as to whether the driving licence produced by the driver, (a fake
\none or otherwise), does not fulfill the requirements of law or not
\nwill have to be determined in each case.\n<\/p>\n
(viii)\tIf
\na vehicle at the time of accident was driven by a person having a
\nlearner?”s licence, the insurance companies would be liable to
\nsatisfy the decree.\n<\/p>\n
(ix)\tThe
\nclaims tribunal constituted under Section 165 read with Section 168
\nis empowered to adjudicate all claims in respect of the accidents
\ninvolving death or of bodily injury or damage to property of third
\nparty arising in use of motor vehicle. The said power of the tribunal
\nis not restricted to decide the claims inter se between claimant or
\nclaimants on one side and insured, insurer and driver on the other.
\nIn the course of adjudicating the claim for compensation and to
\ndecide the availability of defence or defences to the insurer, the
\nTribunal has necessarily the power and jurisdiction to decide
\ndisputes inter se between insurer and the insured. The decision
\nrendered on the claims and disputes inter se between the insurer and
\ninsured in the course of adjudication of claim for compensation by
\nthe claimants and Se award made thereon is enforceable and executable
\nin the same manner as provided in Section 174 of the Act for
\nenforcement and execution of the award in favour of the claimants.\n<\/p>\n
(x)\tWhere
\non adjudication of the claim under the Act the tribunal arrives at a
\nconclusion that the insurer has satisfactorily proved its defence in
\naccordance with the provisions of Section 149(2) read with
\nSub-section (7), as interpreted by this Court above, the Tribunal can
\ndirect that the insurer is liable to be reimbursed by the insured for
\nthe compensation and other amounts which it has been compelled to pay
\nto the third party under the award of the tribunal Such determination
\nof claim by the Tribunal will be enforceable and the money found due
\nto the insurer from the insured will be recoverable on a certificate
\nissued by the tribunal to the Collector in the same manner under
\nSection 174 of the Act as arrears of land revenue. The certificate
\nwill be issued for the recovery as arrears of land revenue only if,
\nas required by Sub-section (3) of Section 168 of the Act the insured
\nfails to deposit the amount awarded in favour of the insurer within
\nthirty days from the date of announcement of the award by the
\ntribunal.\n<\/p>\n
(xi)\tThe
\nprovisions contained in Sub-section (4) with proviso thereunder and
\nSub-section (5) which are intended to cover specified contingencies
\nmentioned therein to enable the insurer to recover amount paid under
\nthe contract of insurance on behalf of the insured can be taken
\nrecourse of by the Tribunal and be extended to claims and defences of
\ninsurer against insured by, relegating them to the remedy before,
\nregular court in cases where on given facts and circumstances
\nadjudication of their claims inter se might delay the adjudication of
\nthe claims of the victims.\n<\/p>\n
18.\tIn
\nthe light of the above-settled proposition of law, the appellant
\ninsurance company cannot be held liable to pay the amount of
\ncompensation to the claimants for the cause of death of Shukurullah
\nin road accident which had occurred due to rash and negligent driving
\nof scooter by Ram Surat who admittedly had no valid and effective
\nlicence to drive the vehicle on the day of accident.  The scooterist
\nwas possessing driving licence of driving HMV and he was driving
\ntotally different class of vehicle which act of his is in violation
\nof Section 10(2) of the MV Act.\n<\/p>\n
19.\tIn
\nthe result, the appeal is allowed to the limited extent and it is
\ndirected that the appellant insurance company though not liable to
\npay the amount of compensation, but in the nature of this case it
\nshall satisfy the award and shall have the right to recover the
\namount deposited by it along with interest from the owner of the
\nvehicle, viz. Respondent No. 8, particularly in view of the fact that
\nno appeal was preferred by him nor has he chosen to appear before
\nthis Court to contest this appeal.  This direction is given in the
\nlight of the judgments of this Court in National Insurance Co. Ltd.
\nv.Baljit Kaur and Others [(2004) 2 SCC 1] and Deddappa and Others v.
\nBranch Manager, National Insurance Co. Ltd.<\/a> [(2008) 2 SCC 595].??\n<\/p>\n
9.\tIn
\nview of the aforesaid decision of the Apex Court and considering the
\nidentical facts which are available in facts of present case and
\nlooking to the finding and reasoning given by the claims Tribunal and
\nalso taking into consideration the decision in case of  United India
\nInsurance Co. ltd. v. Lehru and others reported in 2003 GLR 1771 and
\nNational Insurance Co. Ltd. v. Kamla reported in 2002 GLR 916 and
\nSwaran Singh (supra), according to my opinion, in case of third
\nparty, Insurance Co. is liable to pay the compensation to the
\nclaimant to have the right to recover from the insured because a
\nbreach committed by insured gives the right to the Insurance Co. to
\nrecover the amount of compensation from the owner. Therefore,
\ncontentions which are raised by learned advocate Ms.Jani cannot be
\naccepted and same are rejected.\n<\/p>\n
10.\tThe
\nclaims Tribunal has rightly assessed the income and also rightly
\nconsidered the medical evidence which was admitted by the Insurance
\nCo. vide Exh.14 and from 30% disability it was reduced to 15% and
\nlooking to the monthly salary of Rs.1800\/-, yearly it comes to
\nRs.3240\/- and looking to the age 35 years, multiplier of 15 has been
\nrightly applied and Rs.48,000\/- towards loss of future income and
\npain, shock and suffering and transportation and actual loss, the
\nclaims Tribunal has rightly awarded Rs.73,800\/- and considering 15%
\nnegligence, it was reduced to Rs.11,070\/- and net amount comes to
\nRs.62,730\/-. The claims Tribunal has not committed any error even
\nassessing the income and awarding the compensation and it cannot be
\nconsidered in any manner on higher side. Therefore, there is no
\nsubstance in the present appeal. Accordingly, present appeal is
\ndismissed. The amount of Rs.25,000\/- deposited with this Court for
\nthe purpose of appeal shall be transmitted to the Tribunal concerned.\n<\/p>\n
11.\tAs the First Appeal No.789 of 2008 is dismissed, no order is necessitated in Civil Application No.2394 of 2008. Accordingly, Civil Application No.2394 of 2008 is disposed of.\n<\/p>\n
(H.K.RATHOD,J.) <\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court New vs Rameshbhai on 17 September, 2008 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print FA\/789\/2008 15\/ 15 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 789 of 2008 With CIVIL APPLICATION No. 2394 of 2008 In FIRST APPEAL No. 789 of 2008 For Approval and Signature: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-107591","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nNew vs Rameshbhai on 17 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/new-vs-rameshbhai-on-17-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"New vs Rameshbhai on 17 September, 2008 - 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