FA/5379/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5379 of 2007 With FIRST APPEAL No. 5380 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 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 ? 1 to 5 NO ========================================================= BAJAJ ALLIANZ GENERAL INSURANCE CO LTD - Appellant(s) Versus NARANBHAI MAKANBHAI RATHWA & 2 - Defendant(s) ========================================================= Appearance : MR SHALIN N MEHTA for Appellant(s) : 1, MR VIPIN H PANDYA for Respondent(s) : 1, DS AFF.NOT FILED (R) for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 04/02/2008 ORAL JUDGMENT 1. Even as appeals were entertained and Rule was issued in civil applications for stay in both the appeals, appropriate order of admission of the appeals does not appear to have been recorded FA/5379/2007 2/5 JUDGMENT in the appeals. Learned counsel Mr.V.H.Pandya having appeared for original claimant-respondents and other respondents having been served, the appeals were heard for final disposal at the request of learned counsel after formally admitting the same. 2. Both the appeals under section 173 of the Motor Vehicles Act, 1988 ("the Act", for short) have been preferred from similar orders dated 29.9.2008 of Motor Accident Claims Tribunal (Aux.), Vadodara below application Ex.5 in Motor Accident Claim Petitions No.1507 of 2005 and 1508 of 2005 which have arisen from the same accident. The applications of original claimants were made under the provisions of section 140 of the Act, pending hearing of the main claim petitions under section 166 of the Act. The motor accident which happened on 13.10.2005 involved the scooter on which the deceased victim and the injured claimant were travelling and the motorcycle which was alleged to have been negligently driven by respondent No.7 and insured by the present appellant. The main contention of the appellant was that the driver of the vehicle did not possess valid driving licence and hence it was required to be exonerated from the liability of satisfying the impugned awards made under section 140 of the Act. It was pointed out from the FA/5379/2007 3/5 JUDGMENT impugned award that, even as judgment of the Supreme Court in Smt. Yalwwa & Ors. v. National Insurance Co. Ltd. [(2007) 6 SCC 657] was cited before the Tribunal, the objection was brushed aside with the observation as under: "The objections raised by the insurance company cannot be decided at this stage and it can be decided later when the main petition is heard on merits. Hence, the submissions made by the opponent No.3 are not accepted and they are rejected." It was, therefore, argued by learned counsel Mr.Shalin Mehta that the impugned awards were contrary to the law laid down by the Apex Court in Smt. Yalwwa (supra) in paragraphs 10 and 11 of the judgment. 2. It was submitted by learned counsel Mr.V.H.Pandya, appearing for the original claimants, that, in view of Three Judge Bench judgment of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh and Others [(2004) 3 SCC 297], although the insurance company was entitled to raise defences in terms of section 149 (2) (a) (ii), mere absence of licence or disqualification of the driver are not themselves defences available to the insurer FA/5379/2007 4/5 JUDGMENT 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 the condition of the policy regarding use of the vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time. Thus, the insurance company was required to establish breach on the part of the owner of the vehicle and the burden of proof was on the insurer. He further submitted that the Claims Tribunal was empowered to adjudicate all claims in respect of the accidents and that included the power to decide the claims inter se between the claimant or claimants on one side and insured, insurer and driver on the other. Therefore, if the appellant had established its defence, the Tribunal could have directed that the insurer was liable to be reimbursed by the insured for the compensation and other amounts. It was, however, fairly conceded that the impugned awards were made without affording to the appellant an opportunity of establishing its case and the Tribunal was, in view of the observations made in Smt. Yalwwa (supra), required to go into the question raised by the insurance company. Therefore, the awards could not be sustained as far as the appellant were concerned. FA/5379/2007 5/5 JUDGMENT 3. However, instead of remanding the matter for appropriate adjudication in accordance with law, it was suggested at the bar that the appeals may be allowed as far as the appellant is concerned with the direction to dispose the main claim applications of the claimants as expeditiously as practicable. Accordingly, the appeals are allowed and the impugned awards and orders dated 29.9.2007 in MACP No.1507 of 2005 and 1508 of 2005 below application Ex.5 are set aside as far as the appellant is concerned with the observation that, with co-operation of the parties, the Tribunal may hear the claim petitions as expeditiously as practicable and dispose them preferably within a period of six months. The amounts deposited under section 173 of the Act for the purpose of appeals, shall be refunded to the appellant by account payee cheque in the name of the appellant through its learned counsel. Sd/- ( D.H.Waghela, J.) (KMG Thilake)