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Judgment
Hasmukh D. Suthar, J
Admit. Learned advocate Mr. Nishit Bhalodi waives service of notice of Admission for and on behalf of original claimants and learned advocate Mr. K.B. Maghnani waives service of notice of Admission for and on behalf of respondent No.3. With the consent of learned advocates appearing for respective parties, appeals are taken up for final hearing.
[1.0] Present First Appeals under Section 173 of the Motor Vehicles Act, 1988 (for short “MV Act”) arising out of the same accident are filed by the appellant – original opponent No.2 challenging the impugned common judgment and award dated 05.10.2024 passed by the learned Motor Accident Claims Tribunal (Main), Dahod (for short “learned Tribunal”) in Motor Accident Claim Petition No.82/2019 and 81/2019, whereby the learned Tribunal was pleased to partly allow the claim petitions and awarded compensation of Rs.5,00,000/- each to the original claimants. First Appeal No.4554/2024 is taken as lead matter and facts of the said case are taken for sake of brevity.
[2.0] The brief facts leading to filing of present appeal is as follows:
[2.1] On 11.03.2013, deceased Pankaj, Arpit and Kalpesh were going on Motorcycle No.GJ-20-P-1613 and at around 19.15 hours, when they were passing the bridge of Kali river at village Gultora, an unknown vehicle hit their motorcycle and fled and due to the accident, all the three persons riding the motorcycle sustained injuries and Kalpesh died on the spot whereas Pankaj and Arpit fell down in the river and died. In this connection, an FIR being I-CR No.29/2013 came to be filed. The legal heirs and representatives of deceased Arpit has filed MACP No.82/2019 and that of deceased Pankaj have filed MACP No.81/2019.
[2.2] After considering the evidence produced and adduced, the learned Tribunal held the appellant – insurance company of the offending motorcycle solely negligent for the accident and was pleased to award Rs.5,00,000/- to the original claimants of MACP No.82/2019 and 81/2019 respectively. Hence, the appellant – insurance company has filed the present First Appeals.
[3.0] Learned advocate Mr. Rathin Raval appearing for the appellant – insurance company has submitted that the impugned common judgment and award passed by the learned Tribunal is against the settled principles of law and is passed without properly appreciation of evidence on record. The impugned judgment is prima facie erroneous and against the provisions of law. The driver of the offending motorcycle was not having the license or having invalid license and though the learned Tribunal has accepted the said defence of the insurance company that the minor was driving the motorcycle and was not qualified to hold any type of license to drive the vehicle, the insurance company is saddled with the liability. It is further submitted that in one of the claim petition being MACP No.130/2019 arising from the said accident, the learned Tribunal has exonerated the insurance company while in present two cases, the insurance company is saddled with the liability on the ground that the deceased of present two cases were travelling on the motorcycle as pillion riders. The insurance company has proved the defence by examining the Legal Manager of appellant – insurance company at Exh.48 and though the insurance company has placed on record insurance policy at Exh.51 and progress report of deceased Kalpesh Damor at Exh.52 which clearly proves on record that three minors were travelling on the motorcycle on the date of accident and all three were minor though 1/3rd deduction is not made and Rs.50,000/- is awarded under the conventional head towards loss of love and affection, funeral expenses and last rites which is not permissible under Section 163A of the MV Act as per the structure based formula and hence, he has requested to allow the present appeals and quash and set aside the impugned judgment and award and to exonerate the insurance company.
[4.0] Learned advocate Mr. K.B. Maghnani appearing for the respondent No.3 – owner of the motorcycle has opposed the present appeals by submitting that the original owner appeared before the learned Tribunal and filed his written statement at Exh.10 and considering the said defence, the learned Tribunal has properly appreciated the evidence and passed the impugned judgment and award and held the insurance company liable and hence, question does not arise to exonerate the insurance company. Hence, he has requested to dismiss the first appeals.
[5.0] Learned advocate Mr. Bhalodi appearing for the original claimants has submitted that the original claimants are third parties and they have nothing to do with the breach of condition policy or with the fact whether the deceased driver of motorcycle was having license to drive offending vehicle or not. If alleged breach is considered even though the claimants being third parties, insurance company is liable to satisfy the award in favor of the original claimants. Hence, he has requested not to interfere with the impugned judgment and award and to dismiss the appeals.
[6.0] Present appeals are filed on limited ground of liability and therefore, same is considered in narrow compass.
[7.0] Having heard learned advocate appearing for respective parties and perusing the evidence produced on record, it is worth to mention at the outset that three claim petitions being MACP No.81/2019, 82/2019 and 130/2019 were filed before the learned Tribunal amongst which MACP No.130/2019 was dismissed. Before the learned Tribunal, specific defence was raised by the appellant – insurance company that the offending Motorcycle was driven by deceased Kalpesh, who was minor and was not holding valid and effective driving license to drive the motorcycle. To prove the said defence, evidence of Mr. Ashutosh Chauhan, Legal Managar of appellant – insurance company is produced at Exh.48 and learned Tribunal has considered the fact that minor Kalpesh being the driver of offending motorcycle, his legal heirs and representatives cannot claim the compensation for the wrong of deceased as he was the tort feasor as he was below age of 18 years and was not qualified to hold valid and effective driving license. Considering the said defence, claim petition being MACP No.130/2019 filed under Section 163A of the MV Act came to be dismissed. Involvement of offending motorcycle is not in dispute and insurance policy was in force is also not in dispute.
[7.1] Learned Tribunal has also accepted the defence that admittedly deceased Kalpesh was minor and was not qualified to hold the driving license to drive the motorcycle but deceased Pankaj and Arpit both were pillion riders and for them, driving license was not required. Based on the said finding, insurance company is held liable. But once on the same set of facts and evidence, learned Tribunal wrongly interpreted the decision of Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. vs. Rakesh Kumar Arora reported in 2008 (0) AIJEL (SC) 42231 wherein it has been observed that once it is proved the vehicle was being driven on the date of accident by a minor, who does not have or hold any valid or effective driving license, then under Sections 3 or 5 of the MV Act, it is the statutory responsibility upon the owner of the vehicle not to permit any person who does not satisfy the provisions of section 3 or section 5 of the MV Act for driving the vehicle and in such circumstances, insurance company cannot be held liable or saddled with the liability to satisfy the award in case of statutory breach of insurance policy.
[8.0] Learned advocate Mr. Maghnani appearing for the original owner has submitted that in the written statement, specific defence is taken that the owner of the vehicle was not aware that minor has taken away his vehicle and without his knowledge minor deceased were driving the motorcycle. Merely to make such type of averment in written statement itself is not a proof. Evidence in that regard is required to be lead and it is needless to say that if any defence is raised in the pleading then, it is required to be proved as, who asserts or take such defence has to prove the same. Herein, the owner has failed to prove the said fact and undisputedly and admittedly it reveals from the record that vehicle was driven by minor who was not having any valid or effective driving license on the date of accident. Hence, in light of the decision of the Hon’ble Supreme Court in the case of Rakesh Kumar Arora (Supra) , learned Tribunal has committed an error in saddling the insurance company with the liability and therefore, appellant – insurance company is required to be exonerated on the said ground alone as the learned Tribunal has already accepted the said fact in cognate matter i.e. MACP No.130/2019.
[8.1] At the same time, it is pertinent to note that the original claimants are third parties and they have nothing to do with any breach of the condition of policy. In this regard, it is appropriate to refer to the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Swaran Singh reported in (2004) 3 SCC 297 wherein the Hon’ble Supreme Court in paragraph 83 has observed as under:
“83. Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to. Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-section (1) thereof. The right to avoid liability in terms of sub- section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading.”
The said authority is also followed by the Hon’ble Apex Court once again in the case of Shamanna vs. Oriental Insurance Co. Ltd. reported in (2018) 9 SCC 650 wherein, considering sections 147 and 149 of the MV Act, third party victim of the motor vehicle accident is passed and it is the duty of the insurer to satisfy the award and principle of “pay and recover” is summarized wherein it is held that if the driver had no valid driving license and that there was breach of policy condition, the High Court ought not to have interfered with the order passed by the Tribunal of ‘pay and recover’. If the insurance company has paid any amount then mode of recovery is also provided and insurance company has a liberty to initiate proceeding before the executing Court concerned, if dispute is between the insurer and the owner. Herein, the original claimants are third party and have nothing to do with the said terms and conditions of the insurance policy. Hence, in view of the decision of the Hon’ble Supreme Court in the case of Anu Bhanvara and Others vs. Iffco Tokio General Insurance Company Limited and Others reported in (2020) 20 SCC 632; Sunita & Ors. United India Insurance Co. Ltd. & Ors. as well as in the case of Rama Bai vs. M/s. Amit Minerals reported in 2025 INSC 1162, the insurance company shall be entitled to recover the amount of compensation from the original owner of the offending motorcycle.
[8.2] Further, in view of the decision of the Hon’ble Supreme Court in the case of K. Nagendra vs. New India Insurance Co. Ltd. reported in 2025 SCC OnLine SC 2297, the Hon’ble Supreme Court has re-affirmed the social welfare intent behind the MV Act. The principle or order of “To Pay and Recover” embodies judicial empathy ensuring victims are not left uncompensated due to dispute between owner and insurer. At the same time, considering the contractual accountability, owner who breaches the condition cannot escape financial responsibility as insurers retain the right to recover paid sum to claimant. The dual balance of justice for victim and fairness for insurers strenghthen integrity of Motor Vehicles Accident Compensation system.
[9.0] In wake of aforesaid conspectus, present First Appeals are partly allowed. The impugned common judgment and award dated 05.10.2024 passed by the learned Motor Accident Claims Tribunal (Main), Dahod in Motor Accident Claim Petition No.82/2019 and 81/2019 is modified to the extent that firstly the appellant – insurance company shall pay the compensation to the original claimants in respective claim petitions i.e. MACP No.82/2019 and 81/2019 as awarded by the learned Tribunal alongwith accrued interest as awarded by the learned Tribunal and cost within a period of FOUR WEEKS from the date of receipt of this judgment and thereafter, the appellant – insurance company shall be entitled to recover the said amount from the original owner of the Motorcycle No.GJ-20-P-1613.
[9.1] Thereafter, the learned Tribunal shall disburse the entire amount with accrued interest thereon, if any, to the original claimants of respective First Appeals, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
[10.0] While making the payment, the Tribunal shall deduct the courts fees, if not paid.
[11.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith.