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2013 DIGILAW 425 (GUJ)

New India Assurance Company Limited v. Roshanbibi

2013-07-22

M.D.SHAH

body2013
JUDGMENT : M.D. SHAH, J. 1. These appeals are filed by the appellant being aggrieved against the judgment and award dated 27th April, 1994 passed by the Motor Accident Claims Tribunal (Main), Mehsana in M.A.C.Petition Nos. 213 and 269 of 1988. 2. The facts leading to filing of these appeals are such that two claim petitions i.e. M.A.C.Petition Nos. 213 and 269 of 1988 arose out of the same accident, which occurred on 26th December, 1986 between Baspa and Gochand. It was alleged that deceased Jafarbhai Sahyabhai was driving the autorickhaw bearing registration no.GRU 84, wherein Shekh Ismailbhai Husenbhai was travelling. It is further alleged that at the time of the accident, tanker bearing registration no. GTY 5559 came from opposite direction and collided with auto rickshaw causing death of auto rickshaw driver and causing injuries to the passenger. Heirs and legal representatives of the deceased have filed M.A.C.Petition No. 269 of 1988 claiming compensation, whereas M.A.C.Petition No. 213 of 1988 is filed by the injured claimant claiming compensation for the injuries suffered by him. Both claim petitions were decided by common judgment and ordered the opponents no. 1, 2 and 3 who are driver, owner and insurer of Tanker No. GTY 5559 jointly and severally to pay the amount of Rs.37,500/- to the applicant of M.A.C.Petition No. 213 of 1988 and Rs.2,07,600/- to the applicants of M.A.C.Petition No. 269 of 1988 with running interest @15% per annum from the date of respective applications and till their realisation and proportionate costs thereon. Hence, these appeals are filed by the insurance company of the tanker. 3. Heard learned advocates for the parties. Learned advocate Mr. Parikh submits that it has come in the evidence that on the day of the accident there was no legal and valid permit to ply the truck and so prima facie there is breach of condition of policy, in spite of that, the Tribunal committed error in holding the insurance company liable to pay the compensation. Reliance is placed on the decision in the case of New India Assurance Company Limited v. Kamlaben Wd/o Sultansinh Hakumsinh Jadav and others, reported in 1993 (1) GLR 779 . Learned advocate Mr. Nair appearing for respondent no.16 and learned advocate Mr.Adeshra appearing for respondents - original claimants submit that the impugned judgment and award is just and proper and need not be interfered with. 4. Learned advocate Mr. Nair appearing for respondent no.16 and learned advocate Mr.Adeshra appearing for respondents - original claimants submit that the impugned judgment and award is just and proper and need not be interfered with. 4. On perusing the judgment, in paragraph 13 of the impugned judgment, it is held by the learned Tribunal that: "xxxxxx Regarding Permit, the vehicle had got a permit from 1st September, 1981 to 31st August, 1986 and from 30th April, 1987 to 29th April, 1992. So the vehicle had no permit from 1st September, 1986 to 29th April, 1987 and hence when the accident had occurred it had no permit. xxxxxx". Though it is an admitted fact the on the date of the incident i.e. 26th December, 1986, there was no legal and valid permit, the learned Tribunal has placed on the reported judgment in the case of Raghunath v. Shardabai, reported in AIR 1986 Bombay 386 and held the insurance company liable to pay the compensation. But in the above referred case of Kamlaben (supra), the Full Bench of this Court has held in paragraph 40 as under: "In the result: A.I. Xxxxxxx II. The decision of the Full Bench of this Court in the case of Nathiben, [1982(1) XXIII (1) GLR 411] (supra) is reaffirmed and it is further held that the insurer, in order to successfully disclaim his liability on the ground mentioned in Section 96(2)(b), has to establish: I. That on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward. xxxxxxxx" 5. In the case of hand, it was admitted fact that there was no valid and legal permit on the date of the accident and, therefore, the insurance company is not liable to pay the compensation and the learned Tribunal has erred in holding the insurance company liable to pay the compensation. 6. In view of he above, these appeals are partly allowed. The judgment and award dated 27th April, 1994 passed by the Motor Accident Claims Tribunal (Main), Mehsana in M.A.C. Petition Nos. 213 and 269 of 1988 is hereby quashed and set aside to the extent that the claim petitions are dismissed qua the present appellant-original opponent 3. Rest of the award is unaltered. The judgment and award dated 27th April, 1994 passed by the Motor Accident Claims Tribunal (Main), Mehsana in M.A.C. Petition Nos. 213 and 269 of 1988 is hereby quashed and set aside to the extent that the claim petitions are dismissed qua the present appellant-original opponent 3. Rest of the award is unaltered. It is clarified that the amount which is paid to the claimants in pursuance to the order passed by this Court will not be recovered by the insurance company, however, the insurance company is at liberty to recover the same from the owner of the Tanker No. GTY 5559. Appeals partly allowed.