Brief Facts
Facts that emerged from the record of the appeal were that the accident took place on 12.10.2001 at Ahmedabad. It was the case of the original claimants that while a minor- Sandhya had been walking on the extreme left side of the road, the driver of a Hero Honda motorcycle bearing registration No. GJ5 L1000 had hit her, because of which, she had sustained serious injuries and was taken to the Shardaben Hospital, Ahmedabad. An FIR had been lodged at Odhav Police Station at Exh.42 and the present claim petition was filed by the original claimants under Section 166 of the Act and compensation of Rs.1,50,000/ was claimed. Respondent no.1, i.e., original claimant no.1 was examined at Exh.36 and they also relied upon documentary evidence, like FIR Exh.42, Panchnama Exh.43, copy of the postmortem report Exh.45, school leaving certificate Exh.46, etc. The insurance company had also examined one Danabhai Lakhabhai Parmar at Exh.56 who was an officer of the RTO, Ahmedabad, and one Mahendrasinh Tapubha Zala at Exh.61 who was the Head Constable working at Odhav Police Station. The Tribunal, after properly examining the evidence on record, had not believed the case of the insurance company that the driver of the said motorcycle wasn’t possessing any valid license to drive a motorcycle and ultimately, partly allowed the claim petition and had awarded a sum of Rs.1,34,500/ with an interest at the rate of 7.5 % p.a. Being aggrieved by it, the present appeal under Section 173 of the Motor Vehicles Act, 1988 was filed by the appellant- insurance Company.
Appellant’s Contentions
Mr. Mazmudar, learned advocate appearing for the appellant had contended that the Tribunal had not considered the oral evidence given by Danabhai Lakhabhai Parmar at Exh.56 and Mahendrasinh Tapubha Zala at Exh.61 and had thus, committed an obvious error in concluding that the appellant- insurance Company had not proved that the driver of Hero Hondo motorcycle didn’t possess a license to drive a motorcycle. It was further submitted that the conclusion is drawn by the Tribunal that as the driver of the motorcycle wasn’t examined by the Insurance Company, an adverse inference was required to be drawn. Mr. Mazmudar further contended that the Tribunal had also wrongly concluded that the appellant- insurance Company couldn’t prove that the driver of the motorcycle didn’t possess an effective and valid license to drive the motorcycle.
Respondent’s Contention
Mr. Hiren Modi learned to advocate for the original claimants had supported the said judgment and award.
Consideration by Court
Upon hearing Mr. H.G. Mazmudar and Mr. Hiren Modi, appearing for both the parties, perusing the original record and proceedings, and considering the grounds raised in the present appeal, the Court found it appropriate to refer to the deposition of Danabhai Lakhabhai Parmar at Exh.56 examined by the appellant-insurance Company. Upon that, it appeared that the said witness was working in the License Issue Branch of the RTO Office, Ahmedabad. Cumulatively, it appeared that the driver didn’t possess any license to drive the motorcycle. It was clear from the said evidence that he only possessed a license to drive MGV and P.BUS, but not a motorcycle. It also appeared that the insurance company had proved the said fact and examined the Police Constable who was working as a Head Constable in 2012 at Odhav Police Station, Ahmedabad. The said witness- Mahendrasinh Tapubha Zala had deposed that the driver of the motorcycle didn’t have any license to drive the motorcycle. Therefore, the Court thought that the Tribunal had committed an error in concluding that the appellant- insurance Company couldn’t prove that the driver of the motorcycle did not have a valid license. On the contrary, on its reappreciation, the Insurance Company had established the fact that the said driver didn’t have a valid license to drive the motorcycle. Therefore, such a finding arrived at by the Tribunal was erroneous.
However, following the ratio as laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (2004) and in the case of Pappu & Ors. Vs. Vinod Kumar Lamba & Anr. (2018), though the insurance Company stood exonerated, it had to first pay and then recover from the owner of the offending vehicle.
Court’s Directions
Because of the above, the present appeal was partly allowed. The appellant- insurance Company was exonerated. However, it was directed to pay the amount as awarded by the Tribunal first to the respondents, i.e., original claimants, and then recover that amount from the owner by filing an execution. Hence, the impugned judgment and award stood modified only to such an extent.
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