{"id":171756,"date":"2010-08-11T00:00:00","date_gmt":"2010-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/iffco-vs-fulaben-on-11-august-2010"},"modified":"2018-06-29T22:39:24","modified_gmt":"2018-06-29T17:09:24","slug":"iffco-vs-fulaben-on-11-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/iffco-vs-fulaben-on-11-august-2010","title":{"rendered":"Iffco vs Fulaben on 11 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Iffco vs Fulaben on 11 August, 2010<\/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\/211320\/2009\t 12\/ 12\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. 2113 of 2009\n \n\nTo\n\n\n \n\nFIRST\nAPPEAL No. 2114 of 2009\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 5573 of 2009\n \n\nTo\n\n\n \n\nCIVIL\nAPPLICATION No. 5574 of 2009\n \n \n=========================================================\n\n \n\nIFFCO\nTOKIO GENERAL INSURANCE CO LTD - Appellant(s)\n \n\nVersus\n \n\nFULABEN\nRAKESHBHAI PAVAR & 7 - Defendant(s)\n \n\n=========================================================\n\n \n\nAppearance\n: \nMR\nAJAY R MEHTA for\nAppellant(s) : 1, \nNone for Defendant(s) : 1 -\n8. \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: 12\/05\/2009 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.A.R.Mehta for the appellant   Insurance Co.\n<\/p>\n
2.\tIn
\npresent appeals, the appellant   Insurance Co. has challenged the
\ncommon award passed by MAC Tribunal, Navsari in MACP Nos.211 and 212
\nof 2007, Exh.59, dated 24.9.2008 whereby the claims Tribunal has
\nawarded Rs.3,47,000\/- with 9 % interest in both the cases in favour
\nof respondents claimants.\n<\/p>\n
3.\tLearned
\nadvocate Mr.Mehta has raised contention that claims Tribunal has
\ncommitted gross error in directing the Insurance Co. to first pay the
\n amount of compensation  to the claimant and then to recover from the
\nowner. He submitted that this question is pending before the Apex
\nCourt, whether such direction can be given by the claims Tribunal \/
\nthe High Court against the Insurance Co. to pay the amount of
\ncompensation and to recover from the owner. He also raised contention
\nthat on the date of accident, driver was not having valid licence and
\nthis being an undisputed fact on record, even though the claims
\nTribunal has directed the Insurance Co. to pay the amount of
\ncompensation to the claimants and to be recovered from the owner. He
\nalso raised contention that there is no clear cut exoneration of the
\nInsurance Co., even there is no clear direction to recover the said
\namount from the owner in filing execution proceedings. Therefore, to
\nrecover the amount from owner, long proceeding is required in absence
\nof such direction. He relied upon the decision of the Apex Court in
\ncase of  National Insurance Co. Ltd.v. Vidhyadhar Mahariwala and
\nothers reported in 2008 ACJ 2860 and in case of Ram Babu Tiwari
\nreported in 2008 ACJ 2654. Relying upon aforesaid two decisions, he
\nsubmitted that in both the cases on the date of accident, driver was
\nnot having valid licence and therefore, the Apex Court has in terms
\nheld that Insurance Co. Is not liable to pay compensation to the
\nclaimants. Except that, no other submission is made by learned
\nadvocate Mr.Mehta.\n<\/p>\n
4.\tI
\nhave considered the submissions made by learned advocate Mr.Mehta and
\nalso considered two decisions cited by learned advocate Mr.Mehta. The
\naccident occurred on 28.7.2007 where two persons Rakeshbhai  and
\nRajeshbhai died in the said accident when they were going for service
\nin Forest Department on Motorcycle bearing No.GJ-17-P-5375 at
\nSamaghan Range and while coming to that work of place they went to
\nSaputara along with other officers of the Forest Department for
\ninquiring they went to Thanapada. During the process of going to
\nThanapada from Saputara to Borgav, Taluka- Surgana, District
\nNasik at about 5.00 to 6.00 hours, one truck bearing No.GJ-15-Z-2786
\ncame from opposite side which was driven by opponent No.1 rashly and
\nnegligently and dashed to the motorcycle from back side and due to
\nthat impact of truck, both persons received serious injuries and
\nwhile going to hospital, they died in the said accident. Accordingly,
\nFIR was lodged against the driver of said truck at Surguna Police
\nStation. The driver of the truck was not having valid licence for the
\nperiod 23.4.2004 to 22.4.2007.  Vide Exh.16 copy of driving licence
\ngiven by RTO where opponent No.1 driver was having driving licence
\nfor non-transport vehicle. Thereafter, for the period from 23.4.2004
\nto 22.4.2007 the driver was also having licence for transport vehicle
\nbut, on the date of accident   28.7.2007, this licence was not
\nrenewed by him and there was no evidence on record  by the driver but
\nconsidering,  Exh.47 a certificate which was given and according to
\nthat, this licence was renewed on 21.8.2007 to 20.8.2010. Therefore,
\nclaims Tribunal has in terms come to conclusion that on the date of
\naccident, driver was not having valid licence. The appellant has not
\nexamined any witness but considering the policy period from 9.3.2007
\nto 8.3.2008, the date of accident is covered means on the date of
\naccident policy was in existence which was produced vide Exh.56
\nbefore claims Tribunal. The claims Tribunal has in terms come to
\nconclusion that opponent no.1  – driver of truck was driving his
\ntruck rashly and negligently and due to his rash and negligent
\ndriving, said truck dashed with motorcycle from back side which
\nresulted into death of two persons, who were riding motorcycle. The
\nclaims Tribunal has considered Panchnama, FIR and also the evidence
\nof claimants and come to conclusion that accident occurred due to
\nrash and negligent  driving of opponent No.1. The driver and the
\nowner remained absent before claims Tribunal in spite of the fact
\nthat summons were received by them. These are the facts on record
\nbefore the claims Tribunal.\n<\/p>\n
5.\tNow
\nthe contention raised by learned advocate Mr.Mehta relying upon two
\ndecisions of the Apex Court in case of Ram Babu Tiwari (supra).
\nAccording to that facts, on 27.1.1996 the deceased Rajendra Singh and
\nBalaram along with others were travelling by a truck bearing
\nregistration No.MP 06 E 0129 with their buffaloes on 27.1.1996 from
\nAgra to Vidisha. It met with an accident having been hit by a
\ntractor-trolley bearing registration No.MP-6-J-7506. Rajendra Singh
\ndied on the spot whereas Balaram was seriously injured in the said
\naccident. He was admitted in a hospital at Gwalior where he succumbed
\nto his injuries. The contention raised that driver of the tractor did
\nnot have any valid and effective driving licence to drive said
\nvehicle on the said date of accident. Thereafter, issues have been
\nframed whether terms of the insurance policy has been violated in
\nthis case. The finding given by the claims Tribunal in negative.\n<\/p>\n
5.1\tIn
\nsecond case, the facts are not disclosed by the Apex Court as factual
\nposition in detail need not to be indicated because the issue relates
\nto the liability of the insurance company as the driving licence was
\nnot valid on the date of accident.\n<\/p>\n
6.\tNow
\nconsidering the facts of this case, the driver of the truck was not
\nhaving valid licence but, two persons those who have died, were the
\nthird party. It cannot be disputed by the Insurance Co.  advocate
\nthat these two persons are not third party. Therefore, question is to
\nbe examined by this Court under Section 147 of the MV Act that if
\naccident occurred as a vehicular and if third party is died in the
\nsaid accident, whether the Insurance Co. has statutory liability or
\nnot. This question was not examined in two decisions which have been
\nrelied by learned advocate Mr.Mehta.  If any vehicle if it is put on
\nroad for driving by any driver, whether he having the licence or not.
\nBut because of that vehicle if third party receives injury or died,
\nthen it considered to be a statutory liability of the Insurance Co.
\nif on the date of accident, the insurance was in existence. If
\ndefault committed by the owner of the vehicle handed over the
\npossession of the vehicle to the driver, who was not having valid
\nlicence then it is a breach of condition committed by the owner of
\nthe vehicle and not by the third party. So, the  appellant
\nInsurance Co. cannot raise contention that for third party, the
\nInsurance Co. is not liable to pay compensation and only the owner
\ninsured is duty bound to pay compensation. If that contention is
\nallowed by this Court then there is no purpose to have a statutory
\nliability and contractual liability of Insurance Co. There is vast
\ndifference between the contractual and statutory liability of the
\nInsurance Co. under Section 147(1) of the MV Act. A vehicle which is
\nnot insured means compulsory insurance required for safeguarding the
\ninterest of the third party so, at least, third party can get the
\nrelief from the Insurance Co. in case if the accident occurred by
\nvehicle.\n<\/p>\n
7.\tIn
\nlight of this background, the view taken by the Apex Court in case of
\n Samundra Dev & Ors. v. Narendra Kaur & ors.<\/a> reported in AIR
\n2008 SC 3205 wherein the Apex Court has considered Section 147 and
\n148 of the MV Act and held that in respect to third party risk,
\nliability fastened on insurer and insurer would be bound to indemnify
\ninsured unless exceptions provided in Section 149 are attracted. In
\nfacts of that case, one Shiv Shakti Singh while proceeding in a car
\non 9.4.1988 met with an accident having been hit by a truck bearing
\nregistration No.MP-09-KA-6899. The said truck was owned by the first
\nrespondent herein and was being driven at the relevant time by the
\nsecond respondent. The said truck was insured with the respondent
\nNo.3. As a result of the injuries sustained in the said accident,
\nShiv Shakti Singh died. The car was also damaged.  In light of
\naforesaid background, the Apex Court has examined the question of
\nliability of Insurance Co. and held that Insurance Co. is liable to
\npay compensation to the claimant and then to recover from the owner.
\nRelevant observations made by the Apex Court in aforesaid decision
\nare in Para.15 which is quoted as under :\n<\/p>\n
 15.
\n  It has not been disputed before us that in certain situations while
\nopining that the insurance company would not be liable to reimburse
\nthe insured, a direction upon the insurance company to pay the amount
\nof compensation to a third party and recover the same from the owner
\nof the vehicle is permissible. Such a direction has been issued by
\nthe High Court. The said directions are not under challenge.\n<\/p>\n
      Keeping
\nin view the aforementioned principle in mind, the question which
\narises for our consideration is as to whether it was permissible for
\nthe High Court to interfere with the quantum of compensation as
\nawarded by the learned Tribunal, although no appeal was preferred
\neither by the owner or the driver of the vehicle nor any appeal was
\npreferred by the insurance company.\n<\/p>\n
7.1\tIn
\nthis case also, the Apex Court has given liberty to Insurance Co. to
\nrecover the amount of compensation from the owner of the vehicle.\n<\/p>\n
8.\tThe
\nview taken by the Apex Court in case of  Oriental Insurance Co. ltd.
\nv. Zaharulnisha & Ors. reported in 2008 AIR SCW 3251 that in
\nrespect of liability of insurer, third party risk, statute raises
\nlegal fiction that insurer would be deemed to be a judgment-debtor in
\nrespect of liability. The liability of insurer   insurer can defend
\naction or any of grounds mentioned in Section 149(1). The liability
\nof insurer- violation of provisions of Act may result in absolving
\ninsurers. But same may not necessarily hold good in case of third
\nparty. The liability of insurer to satisfy decree passed in favour
\nthird party is statutory.\n<\/p>\n
9.\tIn
\nview of the aforesaid observations made by the Apex Court in both the
\ncases and considering the fact that both the persons, those who are
\ndied, are third party hit by truck from back side and the driver of
\nthe truck  was not having valid licence. That benefit may be
\navailable to the Insurance Co. but for third party having a statutory
\nliability, the Insurance Co. must have to pay first to the claimant
\nand then to recover from the owner of the vehicle and that is the
\nreal safeguard provided by beneficial legislation in favour of
\nclaimant of third party. Otherwise there is no purpose to legislate
\nSection 147(1) of the MV Act. It is also a compulsory insurance is
\nrequired if there is safeguard provided to the third party, the
\nquestion of compulsory insurance is also become unnecessary. If the
\nliability of the Insurance Co. is purely considered to be a
\ncontractual liability then such deeming fiction which has been
\nprovided under Section 147 also not necessary. In insurance policy
\nwhile paying the premium to Insurance Co. By the owner, the risk of
\nthird party has been accepted by Insurance Co. and according to my
\nopinion, no such contention has been raised by Insurance Co. before
\nclaims Tribunal that risk of third party is also not covered under
\nthe policy obtained by the owner. So compulsory risk is accepted by
\nInsurance Co. by receiving the premium from the owner of the vehicle,
\nthen Insurance Co. cannot deny its liability because of breach
\ncommitted by the owner of the vehicle. Otherwise in any of the case,
\nthe third party or their claimant can get the amount of compensation
\nfrom the owner of the vehicle or there is no safeguard at all
\navailable to the third party and there is no purpose to have
\ncompulsory insurance to be obtained by the owner of the vehicle when
\nthe vehicle has been put on road by owner of the vehicle. Therefore,
\naccording to my opinion, considering the facts as it is that two
\npersons died in the accident who are third party which is not
\ndisputed before this Court by learned advocate Mr.Mehta and it is
\nalso not in dispute that risk of third party is not covered under the
\npolicy of insurance. However, he pointed out that risk of third party
\nis covered under the policy subject to exception provided in Section
\n149(2) of the MV Act. Learned advocate Mr.Mehta relied upon breach of
\nspecified condition of the policy being one of the following
\ncondition which has been mentioned in Sub-section (2) (a) and (b) to
\nSection 149(2) and Sub-Section 5 is also relevant while considering
\nthe breach as suggested by learned advocate Mr.Mehta in respect to
\nSection 149(2). The Section 147 of the MV Act provides requirements
\nof policies and limits of liability in order to comply with the
\nrequirements of this Chapter, a policy of insurance must be a policy
\nwhich is issued by a person who is an authorized insurer and insures
\nthe person or classes of persons specified in the policy to the
\nextent specified in sub-section (2) against any liability which may
\nbe incurred by him in respect of the death of or bodily  to any
\nperson including owner of the goods or his authorized representative
\ncarried in the vehicle or  damage to any property of a third party
\ncaused by or arising out of the use of the vehicle in a public place.
\nThat Section 146  of the MV Act provides necessity for insurance
\nagainst third party risk. That is also a relevant which require the
\npolicy of insurance complied with the requirements of this chapter.
\nTherefore, the contention which has been raised by learned advocate
\nMr.Mehta that because of the breach committed by the owner of the
\nvehicle, the Insurance Co. is not liable to pay compensation to the
\nthird party, cannot be accepted and therefore, that contention is
\nrejected.\n<\/p>\n
10.\tThe
\nApex Court has recently considered the aforesaid aspect in case of
\nPremkumari and Others v. Prahlad Dev & others<\/a> reported in 2008
\n(3) GLR 2744. Relevant observations of aforesaid decision are quoted
\nas under  :\n<\/p>\n
 Motor
\nVehicles Act, 1988 (LIX of 1988) – Secs. 149 (2) (a) (ii), 149 (4) &
\n149 (5) – Liability of Insurance Company when driver did not have
\neffective driving licence – Principle in earlier decision that “in
\ncase of third party risks, the insurer has to indemnify the amount
\nand to recover the same from the insured”   Principle
\nreiterated.\n<\/p>\n
\tPrinciples laid down in National
\nInsurance Co. v. Swaran Singh,<\/a> 2004 (2) GLR 989 (SC) : 2004 (3) SCC
\n297, reiterated. (Para 8) <\/p>\n
\tThe
\nCourt referred to the principle in National Insurance Co. v. Laxmi
\nNarain Dhut,<\/a> 2007 (3) GLR 2565 (SC) : 2007 (3) SCC 700, namely, “In
\ncase of third party risks the insurer has to indemnify the amount,
\nand if so advised, to recover the same from the insured.  (Para 9) <\/p>\n
11.\tThe
\nMadhya Pradesh High Court has recently considered the aforesaid
\naspect in case of Bhav Singh v. Smt. Savirani & Ors.  reported in
\nAIR 2008 MP 1. Relevant observations of aforesaid decision are quoted
\nas under  :\n<\/p>\n
 The
\ninsured who is a party to the insurance is not a third party for the
\npurpose of Chapter XI of the Act, particularly Section 147 thereof.
\nThus, any person other than the insurer and the insured who are
\nparties to the insurance policy is a ‘third party’.  The insurer,
\nhowever, would not be liable for any bodily injury or death of a
\nthird party in an accident unless the liability is fastened on the
\ninsurer under the provisions of Section 147 of the Act or under the
\nterms and conditions of the policy of insurance.  Hence, the mere
\nfact that a passenger is a third party would not fasten liability on
\nthe insurer unless such inability arises under Section 147 of the Act
\nor under the terms and conditions of insurance policy.\n<\/p>\n
12.\tThe
\nApex Court has recently considered the aforesaid aspect in case of
\nNew India Insurance Co. v. Darshana Devi and others<\/a> v. State of
\nMadhya Pradesh and others  reported in (2008) 7 SCC 416. Relevant
\nobservations of aforesaid decision are quoted as under  :\n<\/p>\n
 The
\ndeceased, owner of the goods, was travelling on the mudguard of the
\ntractor loaded with “safeda” wood.  Owing to rash and
\nnegligent driving by ‘A’ who did not have a driving licence, the
\ndeceased fell down and came underneath the said tractor.  The tractor
\nused to be plied on hire.  At the relevant time, it was not being
\nused for agricultural purposes for which it was insured.  The
\nTribunal held that although the owners had contravened the contract
\nof insurance, the Insurance Company could not escape its liability in
\nregard to third-party risk but was entitled to recover the amount of
\ncompensation from the insurer, namely, the owner of the offending
\nvehicle and awarded a sum of Rs.2,04,000 by way of compensation in
\nfavour of the claimants.  Division Bench of the High Court dismissed
\nthe appeal preferred by the Insurance Company summarily.\n<\/p>\n
13.\tThe
\nApex Court has recently considered the aforesaid aspect in case of
\nOriental  Insurance Co. v. Rajni Devi and others<\/a> v. State of Madhya
\nPradesh and others  reported in 2008 (3) Supreme 201. Relevant
\nobservations of aforesaid decision are quoted as under  :\n<\/p>\n
 6.\tIt is now a well settled
\nprinciple of law that in a case where third party is involved, the
\nliability of the insurance company would be unlimited.   Where,
\nhowever, compensation is claimed for the death of the owner or
\nanother passenger of the vehicle, the contract of insurance being
\ngoverned  by the contract qua contract, the claim of the insurance
\ncompany would  depend upon the
\nterms thereof.\n<\/p>\n
14.\tIn
\nview of the aforesaid observations made by this Court and considering
\nthe facts which are on record that two persons died in the accident
\nby the dash given by truck driver on the back side, those who are
\nthird party and truck driver was not having valid licence on the date
\nof accident, even though the Insurance Co. has to comply with the
\naward and make the payment to the claimants but, Insurance Co. can
\nrecover the said amount from the owner of the vehicle by filing
\nmerely execution proceedings against the owner of the vehicle, if law
\npermits such recovery. No other contention except as referred above.
\nTherefore, according to my opinion, the claims Tribunal has rightly
\nexamined the matter and for that, claims Tribunal has not committed
\nany error which requires interference by this Court. Therefore, there
\nis no substance in present appeals. Accordingly, present appeals are
\ndismissed.\n<\/p>\n
15.\tToday,
\nthis Court has disposed of first appeals and, therefore, no order is
\nrequired to be made on civil applications for stay, therefore, civil
\napplications for stay are disposed of accordingly.\n<\/p>\n
16.\tAmount,
\nif any, deposited by appellant in the Registry of this court be
\ntransmitted to claims tribunal concerned immediately.\n<\/p>\n
 (H.K.RATHOD,J.)
\n(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Iffco vs Fulaben on 11 August, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print FA\/211320\/2009 12\/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2113 of 2009 To FIRST APPEAL No. 2114 of 2009 With CIVIL APPLICATION No. 5573 of 2009 To CIVIL APPLICATION No. […]<\/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-171756","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nIffco vs Fulaben on 11 August, 2010 - 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\/iffco-vs-fulaben-on-11-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Iffco vs Fulaben on 11 August, 2010 - 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