NEW INDIA ASSURANCE CO. LTD. vs AMRATBEN BHIMABHAI BARVAD
- Court
- Gujarat High Court
C/FA/1067/2014 JUDGMENT DATED: 04/11/2026
(GJHC240403162014)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1067 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE CO. LTD.
Versus
AMRATBEN BHIMABHAI BARVAD & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1.1,1.2,1.3,2,3
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CORAM: HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 04/11/2026
ORAL JUDGMENT
1. The present appeal has been preferred by the appellant -
original opponent no.2 under Section 173 of the Motor Vehicles
Act, 1988 against the judgment and award dated 04.09.2012
passed by the Principal District Judge, Anand in MACP no. 333 of
2007 whereby the Claim Petition has been partly allowed and
directed the original opponent nos. 1 and 2, jointly and severally
to pay the claimants Rs.5,70,000/- with interest at the rate of 7%
p.a. from the date of filing of the Claim Petition till its realization.
2. The brief facts of the present appeal are as under:
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2.1 The present appeal has been preferred by the legal
representative of the deceased – Amratben Bhimabhai Bharvad.
The factual aspect is that on 30.04.2007, Bhimabhai Mohanbhai
Bharvad was riding motorcycle no. GJ-23-F-3248 along with his
minor son Vipul and wife Amratben as pillion rider. When they
reached the outskirts of village: Boriyavi, opponent no.1-driver,
driving tempo bearing registration no. MH-04-TRA-187 came at a
high speed, in a careless manner from the wrong side of the road
and hit the motorcycle thereby causing the accident. In that
accident, wife of Bhimabhai, deceased-Amratben sustained
serious injuries and died on the spot whereas, the minor son
sustained injuries. Hence, a Claim Petition being MACP no. 333 of
2007 was preferred by the legal representative of the deceased
to get compensation whereby the Claim Petition came to be
partly allowed.
3. Being aggrieved and dissatisfied with the above impugned
judgment and award, the present appeal has been preferred.
4. Heard learned advocate Mr. Palak Thakkar for the insurance
company – original opponent no. 2. He has submitted that the
opponent no.1 - driver of the tempo has not produced any
driving licence before the Tribunal. He has submitted that since
the driver of the vehicle was not holding driving licence at the
time of accident, there was a violation of the conditions of the
insurance policy, hence, the insurance company cannot be
fastened with the liability to pay the compensation and in
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absence of any driving licence, the learned Tribunal ought not to
have directed the insurance company and the driver and owner
of the tempo to jointly and severally be liable to pay the amount
of compensation and only on this ground the present appeal has
been preferred and considering that there is a breach of policy of
the insurance company, the insurance company is to be
exonerated. He has submitted that so far as quantum and other
aspect such as negligence are concerned, there is no serious
contest on that aspect. He, therefore, submitted that the present
appeal deserves to be allowed.
5. Despite being duly served, the respondents have failed to
appear.
6. Heard the learned advocate for the appellant.
7. The present appeal has been preferred only on the short
ground that the original opponent no.1 was not holding any valid
driving licence and has violated the conditions of the insurance
policy as the insurance company is to be exonerated. In this
regard, it would be appropriate to peruse the judgment of the
Division Bench of this Court in the case of National Insurance
Company Ltd. Vs. Patel Chandubhai Bhurabhai & Ors. in
First Appeal no. 145 of 2015 dated 29.10.2026 whereby this
Court has observed in paragraph no. 6 as under:
“6. As far as the argument of the insurer regarding the
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licence is concerned, at best, this argument would amount
to there being a breach of the policy conditions. It is
settled law that if the insurer claims that there is a breach
of policy conditions, it would first have to pay the
compensation and thereafter proceed to recover the same
from the owner of the offending vehicle. In that view of
the matter, the award of the Tribunal is modified, and it is
held that the insurer shall pay the compensation and
thereafter recover the same from the owner of the
offending vehicle.”
8. Considering the above, as per the settled law that if the
insurer claims that there is a breach of policy conditions, the
insurance company has to first satisfy the award and thereafter,
proceed to recover the amount of compensation from the owner.
Considering this, in the present appeal also, a dispute has been
raised by the appellant-insurance company that there is a
violation of the conditions of the insurance policy, then in that
circumstance, the order is required to be passed that the
insurance company has to first satisfy the award and then
recover from the owner of the vehicle.
9. In view of the above, the present appeal is partly allowed.
The judgment and award dated 04.09.2012 passed by the
Principal District Judge, Anand in MACP no. 333 of 2017 is hereby
modified to the extent that the original opponent no. 2 – The New
India Insurance Co. Ltd., has to first satisfy the award and pay
the claimant Rs.5,70,000/- less the amount of Rs.50,000/- being
the amount of N.F.L. if paid, together with interest at the rate of
7% p.a. from the date of filing of the Claim Petition till its
realisation and thereafter, the insurance company shall proceed
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to recover the same from the owner of the offending vehicle by
way of preferring an execution petition in accordance with law.
The award is to be modified to the aforesaid extent.
10. As the insurance company has already deposited the
amount before the concerned Tribunal and 20% amount has been
disbursed to the claimants and 80% amount has been invested
in the fixed deposit by the concerned Tribunal thus, the amount
lying in the fixed deposit along with the accrued interest shall be
disbursed to the claimants.
11. The record and proceedings, if any, be sent back to the
concerned Tribunal.
(L. S. PIRZADA, J)
ANUSRI
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