FA/1763/1997 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1763 of 1997 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 ? ========================================================= ORIENTAL INSURANCE CO LTD - Appellant(s) Versus PARBAT GOVIND VARU & 2 - Defendant(s) ========================================================= Appearance : MR AJAY R MEHTA for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, MR HM PRACHCHHAK for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1. Mr. H.M. Prachchhak for the respondent nos.2 and 3 has placed on record two registered AD slips and stated that in spite of his writing two letters to the parties, he has not received instructions. The FA/1763/1997 2/3 JUDGMENT appeal is of the year 1997 and therefore the same is taken up for hearing. 2. This appeal is directed against the judgement and award dated 15th February 1997 passed by the Motor Accident Claims Tribunal (Special), Junagadh at Porbandar in Motor Accident Claims Petition No.104 of 1994 whereby the Tribunal has awarded a sum of Rs.29,150/- along with interest at the rate of 12% per annum from the date of application till the amount is deposited. 3. The incident in question has taken place on 10th April 1994. On that day the applicant was proceeding with his mother from Kutiyana bus stand when the original opponent no.1 came rushing with his rickshaw from Porbandar side and dashed the applicant. The applicant sustained injuries and he was taken to the hospital where he took treatment. In respect of this incident the applicant has filed the aforesaid claim petition claiming a sum of Rs.1 lac. After hearing the parties the Tribunal awarded a sum of Rs.29150/-. The Insurance Company has therefore filed the present appeal against the judgement and award of the Tribunal. 4. Learned Advocate for the appellant submitted that the driver of the vehicle involved in the accident was not having valid licence at the relevant time and therefore the appellant is not liable to satisfy the compensation. He submitted that this FA/1763/1997 3/3 JUDGMENT contention is supported by the decision in the case of National Insurance Company Vs. Kusum Rai, reported in (2006)4 SCC 250. 5. In the case of National Insurance Company (supra) it is held that in case a commercial vehicle driven by a person not possessing appropriate licence, the insurer could rightly set up the defence of breach of condition of the insurance contract. 6. Before the Tribunal it was clearly established that the driver was not holding licence to drive the vehicle. The driver has also admitted this fact. In view of these facts and in view of the aforesaid decision the impugned order requires to be quashed and set aside. 6. In the premises aforesaid, the appeal is allowed. The impugned judgement and award dated 15th February 1997 passed by the Motor Accident Claims Tribunal (Special), Junagadh at Porbandar in Motor Accident Claims Petition No.104 of 1994 is hereby quashed and set aside. If the amount is deposited by way of FDR the same will be paid to the appellant, otherwise it will be open to the Insurance Company to recover the amount from the owner of the vehicle. No order as to costs. [K.S. JHAVERI, J.] ar