Partly allowed

Icici Lombard General Insurance Company Ltd. v. Ajitsinh Ratansinh Dabhi

Gujarat HC29 Jun 2018FA/1227/2015

Case brief

AI extract

What is this about?

The Gujarat High Court in an oral order held that an insurance company must first pay the awarded compensation to the claimant and then recover the sum from the vehicle owner. The court partly allowed the appeal to modify the impugned award to empower the insurer to execute the award against the owner.

What did the court decide?

Appeal partly allowed; insurance company directed to pay awarded sum to claimant with liberty to recover from owner via execution; no fresh litigation required for recovery.

Icici Lombard General Insurance Company Ltd. Vs Ajitsinh Ratansinh… — Insurance | Gujarat HC (2018)

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C/FA/1227/2015 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 1227 of 2015

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ICICI LOMBARD GENERAL INSURANCE COMPANY LTD Versus AJITSINH RATANSINH DABHI

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Appearance:

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MS VIDHI J BHATT(6155) for the PETITIONER(s) No. 1 RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 29/06/2018

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ORAL ORDER

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Heard learned advocate Ms. Rao for learned advocate Ms. Vidhi J. Bhatt for the appellant. Perused the record. The appellant herein is insurer of the vehicle in question which is involved in the accident. Whereas respondent Nos. 1 and 2 are driver and owner respectively of the vehicle No. GJ 7 VW 7421 who was involved in accident and insurer by the appellant. Respondent No.3 original claimant has preferred Motor Accident Claims Petition No.792 of 2013 before the tribunal at Kheda @ Nadiad claiming an amount of Rs.1,50,000/- toward compensation because of injuries received by him in vehicular accident. It is the case that when he was travelled in such rickshaw on 27.03.2013, the rickshaw was driving rashly and negligently and, therefore, it got topped down whereby claimant has received grievous injuries . The vehicle in question was passenger in auto rickshaw and, therefore, appellant – insurance company has contended that since owner does not have permitted to ply such rickshaw, they are not liable to pay compensation.

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Page 1 of 4

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C/FA/1227/2015 ORDER

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Though dispute is regarding breach of policy condition appellant has also pleaded and challenged the quantum part of the award also. The perusal of impugned judgment and record shows that petitioner has received grivious injuries which resulted into 22.5 % permanent disability which is considered as a 10% for body as a whole and considering Rs.3000/- earning capacity of the victim, tribunal has assessed Rs.36,000/- on different heads. Since all such amount is within limit. It cannot be said that award on any head is excessive when only Rs.10,000/- is awarded for pain, shock and suffering and Rs.44,222/- for medical expenses. Therefore, I do not see any reason to interfere with such award, so far as quantum is concerned. Even if we scrutinize the factual details, when tribunal has not considered prospective income, which calculation of quantum of compensation may not change the total compensation because if at all there may be some deduction on one head and there would be some addition on another head. Therefore, so far as award of quantum of compensation is concerned, there is no reason to interfere with such award.

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Then only issue remains is that driver was not having permission to ply such passenger rickshaw. on the date of accident, which he has got after the date of accident. Though this may be good reason for denying the liability of insurance company considering the settled legal position including following decisions. It is now clear that in such cases when there is an award in favour of the claimants, it would be appropriate to direct the insurance company first to pay the awarded amount with liberty to recover such amount, which it has paid as per the the award, from there insured i.e. owner of the vehicle in question. The principal is now very well known as pay and recover.

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Page 2 of 4

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C/FA/1227/2015 ORDER

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(1)National Insurance Co. Ltd. vs. Challa Bharathamma & Ors. reported in AIR2004 SC 4882;

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(2)National Insurance Co. Ltd. vs. Baljit Kaur & Ors. reported in (2004) 2 SCC 1;

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(3)Judgment dated 06.03.2018 in Civil Appeal No.2103 of 2018 between Singh Ram vs. Nirmala;

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(4)Judgment and order dated 27.03.2018 in Civil Appeal No.3315 of 2018 between U.P.S.R.T.C. vs. National Insurance Co. Ltd.

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(5)Judgment and order dated 17.05.2018 in Civil Appeal No.2253 of 2018 between Amrit Paul Singh & Ors. vs. TATA AIG General Insurance Co. Ltd. & Ors.

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In view of the foregoing discussion, I am of the view that the direction to insurance company of the concerned vehicle – they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing the insurance company to first pay the awarded sum to the appellant (claimant) and then to recover the paid awarded sum from the driver and owner of the vehicle involved in execution proceedings arising in this very case as per the law laid down in para 26 of Manager, National Insurance Co. Ltd. Vs. Saju P. Paul reported in 2013(2) SCC 41 .

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In view of above facts and circumstances and decisions cited herein above, it would be appropriate to allow this appeal partly by modifying the impugned award for as to allow the appellant to recover the amount that might have been paid by it pursuant to such award from owner of the vehicle being respondent No.2 herein. It is made clear that for the purpose insurance company may not have to initiate fresh litigation since owner has failed to come forward both before the tribunal as well as before this Court.

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Page 3 of 4

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C/FA/1227/2015 ORDER

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Therefore, insurance company is free to directly execute such award against owner. Appeal is partly allowed to aforesaid extent and disposed of accordingly. Interim relief, if any, granted earlier shall stand vacated.

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Record and proceedings if any called for be sent back to the tribunal.

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(S.G. SHAH, J)

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DRASHTI K. SHUKLA

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Page 4 of 4

Icici Lombard General Insurance Company Ltd. v. Ajitsinh Ratansinh Dabhi

Case brief

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Icici Lombard General Insurance Company Ltd. v. Ajitsinh Ratansinh Dabhi

Case brief

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