FA/2539/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2539 of 2007 With FIRST APPEAL No. 2540 of 2007 To FIRST APPEAL No. 2542 of 2007 With CIVIL APPLICATION No. 7403 of 2007 In FIRST APPEAL No. 2539 of 2007 To CIVIL APPLICATION No. 7406 of 2007 In FIRST APPEAL No. 2542 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 1 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 ASS.CO.LTD. - Appellant(s) Versus DELETED VIDE ORDER BELOW EXH.23 & 5 - Defendant(s) ========================================================= Appearance : MR SANDIP C SHAH for Appellant(s) : 1, None for Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 5. - for Respondent(s) : 0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 08/04/2008 FA/2539/2007 2/5 JUDGMENT ORAL JUDGMENT 1. These appeals under section 173 of the Motor Vehicles Act, 1988 are preferred from the common award dated 11.03.2004 of Motor Accident Claims Tribunal (Aux.), Dhrangadhra in which various amounts are awarded to the claimants. The appeals were sought to be pressed on the grounds that the Tribunal had erred in holding the driver of the vehicle insured by the appellant to be responsible for the accident to the extent of 20% and that the deceased and the injured persons were travelling as passengers paying fare in the jeep car insured by the appellant. 2. The brief and undisputed facts of the case are that, on 27.11.1997 at around 07.30 p.m. at Dhrangadhra-Viramgam road near Kacholiya village, jeep No.GJ-6A-4772 and truck No.GJ-12U- 8207 dashed with each other from opposite side resulting into death of two passengers and injuries to other passengers in the jeep. There is also no dispute about the facts that a criminal case was registered against the driver of the offending truck and the road at the place of accident was 22 ft. wide. The driver of the truck was not examined and hence the Tribunal was required to heavily rely upon the panchnama of the scene of accident where only the jeep car was FA/2539/2007 3/5 JUDGMENT lying in a damaged condition. Therefore, the actual position of the truck immediately after the accident could not be ascertained. It was, however, clear from the available material that the jeep car was on its correct left-hand side of the road. In view of width of the road and the fact that driver of the offending truck had run away, it could be safely concluded that driver of the truck was negligent and responsible for the accident to a greater extent, although the accident could have been avoided if the jeep had been driven on the extreme left-hand side of the road. Under such circumstances, apportionment of liability by the Tribunal appears be rational and reasonable requiring no interference. 3. As for the plea of the appellant that the jeep was carrying passengers after receipt of fare, it was seen from the impugned award that the appellant had not proved that the passengers were travelling as paid passengers with the knowledge of the owner. The Tribunal applied the ratio of the judgment of this Court in United India Insurance Co. Ltd. v. Chhatrasing Parbatsing Rathod [1999 (2) GLR 1100] wherein it is clearly held that unless the claimants were travelling as passengers with the knowledge of the owner, insurer would be liable to comply with FA/2539/2007 4/5 JUDGMENT the award. It was fairly conceded that ratio of latter judgment of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh and Others [(2004) 2 SCC 297] squarely applied in the facts of the present case. It is held therein in para 110 (iii) and (iv): "(iii) The breach of policy conditions, e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, have to be 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 the condition of the policy regarding use of the vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them." 4. In view of the above clear legal position and the case of the appellant having been squarely covered by the above proposition of law, the appeals are not required to be entertained and hence summarily dismissed. Civil Applications FA/2539/2007 5/5 JUDGMENT for stay do not survive in view of dismissal of the appeals and they are accordingly rejected with no order as to costs. The amount deposited with this court in each appeal shall be transmitted to the Tribunal concerned. Sd/- ( D.H.Waghela, J.) (KMG Thilake)