FA/1571/1981 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1571 of 1981 with FIRST APPEAL No. 1572 of 1981 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE CO LTD - Appellant(s) Versus RAIBEN POPATLAL VAGHRI & 3 - Defendant(s) ========================================================= Appearance : MR RC JANI for Appellant(s) : 1, MR KG SHETH for Defendant(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/03/2008 ORAL JUDGMENT 1.0 These Appeals are directed against the common FA/1571/1981 2/5 JUDGMENT judgment and award dated 18.07.1991 passed by the Motor Accident Claim Tribunal (Main), Mehsana [for short, “the Tribunal”] in M.A.C. Petition Nos. 230/1980 and 18/1981 whereby, M.A.C. Petition No. 230/1980 was allowed and M.A.C. Petition No. 18/1981 was partly allowed and respondent nos. 3 & 4 herein were held liable to pay an amount of Rs.21,700/- to the claimant with running interest @ 6% per annum from the date of the application. The appellant – Insurance Company was held liable to satisfy the award in the capacity of a judgment-debtor. 2.0 The facts in brief are as under; 2.1 On 25.06.1980, at around 1100 hrs., while respondent no. 1 herein was standing on the foot-path near Rajmahal Road, Mehsana besides her hand-driven cart, a Jeep bearing registration No. GRG – 2711 and driven by respondent no. 4 herein, dashed respondent no. 1 from the behind. During that time, respondent no. 1 was also carrying her child aged about one year along with her. As a result of the said incident, the child of respondent no. 1 was thrown-off from her hand and they both sustained severe bodily injuries. Ultimately, the child of respondent no. 1 succumbed to the injuries in the Hospital. 2.2 Therefore, respondent no. 1 filed M.A.C. Petition No. 230/1980 claiming compensation of Rs.9,999/- for the death of her child and M.A.C. Petition No. 18/1981 claiming FA/1571/1981 3/5 JUDGMENT compensation of Rs.40,000/- for the injuries sustained by her and damages caused to her cart before the Tribunal. The Tribunal, after hearing both the sides, allowed M.A.C. Petition No. 230/1980 and partly allowed M.A.C. Petition No. 18/1981 whereby, respondent nos. 3 & 4 herein were held liable to pay an amount of Rs.21,700/- with running interest @ 6% per annum from the date of the application. The appellant – Insurance Company was held liable to satisfy the award in the capacity of a judgment-debtor. Being aggrieved by the same, the appellant has approached this Court by way of these Appeals. 3.0 Heard learned counsel for the respective parties and perused the documents on record. The main contention raised by the appellant – Insurance Company is that the driver of the vehicle in question was not having a valid driving licence at the time of the accident in question and therefore, the appellant – Insurance Company could not be held liable for the same. 4.0 Considering the facts of the case, it appears that the issue on hand is squarely covered by a decision of the Apex Court in the case of National Insurance Co. Ltd., vs. Swaran Singh & ors. reported in A.I.R. 2004 S.C. 1531 wherein it has been held that the breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Section 149(2)(a)(ii), have to be FA/1571/1981 4/5 JUDGMENT proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. 5.0 In the present case, admittedly, no evidence has been led to establish that the driver had no licence to drive the vehicle or had been disqualified from holding such licence. It is established from the record that the accident in question had taken place only because of the negligence of the driver of the vehicle in question and therefore, the appellant – Insurance Company has to satisfy the award in the capacity of a judgment – debtor. No other contentions have been raised by the appellant – Insurance Company. The Tribunal was completely justified in passing the impugned judgment and award. I am in complete agreement with the reasonings given by and the findings arrived at by the Tribunal in the impugned award and hence, find no reasons to interfere in this appeal. FA/1571/1981 5/5 JUDGMENT 6.0 For the foregoing reasons, the Appeals are dismissed. No order as to costs. [K. S. JHAVERI, J.] Pravin/*