National Insurance Company Limited vs Sumanben Hamabhai Revabhai

Dr. Ashokkumar C. Joshi, J

Admit. Learned advocate Mr. Mohsin M. Hakim waives service qua respondent Nos. 1, 2, 3.

This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (MV Act) by the appellant – The National Insurance Company Limited [Original Opponent No.3], challenging the judgment and award dated 9.7.2018 passed in Motor Accident Claim Petition No. 1712 of 2004 by the learned Motor Accident Claims Tribunal (Auxiliary), Vadodara, whereby, the Claim Petition is partly allowed and the Opponent No.1 to 3 are ordered to pay Rs.4,45,300/- as compensation to the Petitioners jointly and severally together with interest at the rate of 9% p.a. and proportionate costs from the date of Claim Petition till its realization.

Heard, learned advocate Mr. Maulik J. Shelat for the appellant – National Insurance Company and learned advocate Mr. Mohsin M. Hakim for the respondent Nos. 1, 2 and 3. The cause list shows that Respondent No.5 is unserved refused but it is also served.

The sole contention that has been raised by the learned advocate for the appellant is that the learned Tribunal has committed jurisdictional error by not deciding legal defence raised by the Appellant while defending claim petition in its true spirit and it has materially erred in ignoring the settled legal position of law by holding appellant liable to pay compensation. The learned Advocate for the Appellant has further submitted that the learned Tribunal has materially erred in completely ignoring the provisions of Sections 2, 3, 5, 10 and 14 of the M.V.Act and has erred in holding the Appellant liable to pay compensation. He has further stated urged that the learned Tribunal has materially erred in not appreciating that the insured trailer driver was driving HGV class of vehicle holding licence to drive only Motorcycle at the time of accident and having not obtained any license to drive HGV than the Insurance Company could not have been held liable to pay compensation. The learned Advocate has submitted that the learned Tribunal has not considered the judgment in case of New India Assurance Company Ltd. vs. Babiben Babubhai Motibhai Dodiya passed by the High Court in First Appeal No. 3135 of 2008 on 5.2.2013. It is further submitted that the learned Tribunal has also not considered the ratio laid by the Hon’ble Apex Court in case of Zaharulnisha & ors. reported in 2008(12) SCC 385 on the settled proposition of law that the Insurance Company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of in a road accident which had occurred due to rash and negligent driving by the vehicle owner who admittedly had no valid and effective license to drive the vehicle. It is further submitted that learned Tribunal ought to have appreciated the judgment of the Hon’ble Supreme Court in case of Nation Insurance Company Ltd. v. Swaran Singh, reported in 2004 (3) SCC 297. Learned Advocate for the Appellant has drawn the attention of this Court that stand taken by the Appellant in his written arguments has not been considered by the learned Tribunal. Learned Advocate for the Appellant has therefore urged that the matter may be remanded back to the learned Tribunal for deciding afresh on merits.

Per contra, learned Advocate Mr. Mohsin M. Hakim for Respondent Nos. 1,2,3 has objected to remand the matter to the Tribunal.

Having heard the arguments advanced by both the sides and perusing the judgment and award dated 9.7.2018 passed in Motor Accident Claim Petition No. 1712 of 2004 by the learned Motor Accident Claims Tribunal (Auxiliary), Vadodara, without burdening this judgment anymore, it appears that the reasons are in brief and merely res ipsa loquitur, in the considered opinion of this Court, the appeal is required to be allowed by setting aside the impugned judgment and award. In the opinion of this Court, nowhere the issue of driving license is discussed and therefore it appears that the learned Tribunal has lost sight of discussing the material issue of driving license. Upon such premises, this Court is of the opinion that the matter is required to be remanded back in the interest of justice. Therefore, considering the fact that the MV Act is a benevolent legislation, the Court deems it proper to remand back the matter to the Tribunal to decide the same afresh in a time frame schedule.

In the aforesaid backdrop, this appeal succeeds and is allowed accordingly. The impugned judgment and award, as referred to herein above, is hereby set aside. The matter is remanded back to the Tribunal concerned for deciding the same afresh, in accordance with law, without being influenced by any order. Amount, if any, disbursed in favour of claimant / invested in fixed deposit, shall not be disturbed and the same shall be subject to the final out come of the claim petition so decided afresh.

In view of main appeal is disposed of, civil application therein does not survive and the same also stands disposed of accordingly.