AI Structured Summary
Not yet generated for this judgment
Judgment
M.D. Shah, J.—This appeal has been filed by the original opponent No. 3-United India Insurance Company Ltd. under Sec. 173 of the Motor Vehicles Act 1988 being aggrieved and dissatisfied with the judgment and award dated 11-9-2001 passed by the Motor Accidents Claims Tribunal(Main), Valsad, at Navsari in MACP No. 684 of 1993. The claim petition has been filed by parents of deceased minor Tushar Ravjibhai Patel claiming compensation for death of the deceased which occurred on 21-11-1993 within the local limits of Village Billimora, Bangia Falia, Near Gulam Mansion, Taluka Gandevi, District Navsari. It was inter alia contended that the deceased was playing with other boys near wall of Gulab Mansion when Maruti Car No. GCY-9687 driven rashly and negligently dashed the deceased from behind due to which, front wheel of the car ran over his head causing instantaneous death of the deceased. After hearing the learned counsel appearing for the parties and considering the oral as well as documentary evidence on record, the impugned judgment and award was passed by the Tribunal.
I have heard learned advocates, Mr. Sunil Parikh for Mr. Rajni H. Mehta for the appellant-Insurance Company, Mr. Pinakin B. Raval for the respondent Nos. 1 and 2-original claimants and Mr. Zubin F. Bharda for the respondent Nos. 3 and 4.
It is submitted by learned advocate for the appellant that the driver of the offending vehicle held only a learner''s license and did not hold a valid and effective license to drive the motor vehicle and, therefore, Insurance Company is not liable to pay any compensation. According to him, as per the amended provisions of Motor Vehicles Act, risk of such persons is not covered under the policy and, therefore, the Tribunal has committed error in fastening liability on the appellant. It is further submitted that even if this Hon''ble Court holds that the Insurance Company is liable then Insurance Company should be permitted to recover the said amount from the owner. In this connection, he has relied on a decision of Hon''ble Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others,
It is however submitted by learned advocate, Mr. Bharda that after discussing oral as well as documentary evidence on record, impugned judgment and award has been rendered by the Tribunal by detailed reasons. Relying upon the decision rendered in Swaran Singh(supra), it is submitted that if the vehicle was driven by a person holding learner''s license at the time of accident the insurance company would be liable to satisfy the decree and, therefore, findings arrived at by the Tribunal may not be interfered with by this Court in this appeal
This Court has gone through the impugned judgment and award passed by the Tribunal together with oral as well as documentary evidence on record as also the decisions relied on by the learned advocate for the appellant.
The only issue raised in this appeal is whether the Insurance Company is liable to pay compensation or not when the driver of the vehicle was holding only a learning license.
On perusing the records of the trial court, it appears that although insurance company has filed written statement at Ex. 34, no specific contention regarding driver not holding a valid and effective license and holding only a learner''s license has been raised. Even assuming for the sake of arguments that the driver was holding only a learner''s license, then also, onus is on the Insurance Company to prove that driver was not holding effective and valid license by examining competent authority from RTO or the driver of the offending vehicle. The insurance Company has placed on record only xerox copy of alleged driving license of opponent No. 1. Since only xerox copy of the alleged driving license has been produced on record, question does not arise to look into the same till the said document has been proved by leading cogent evidence. Therefore, this document is not of any help to the appellant Insurance Company especially when the said document has not been exhibited and proved and is only marked as Mark-15/1. Since the document is not exhibited, it has no evidentiary value. As discussed above, since Insurance Company has not raised this contention in the written statement, now the Insurance Company cannot take this contention for the first time in this appeal and, therefore, there is no substance in the argument of Mr. Parikh that driver was not having legal and valid license and, therefore, said submission of Mr. Parikh is hereby negatived. In view of the above, appellant would not be entitled to the benefit of the decision relied on by his counsel.
On the aspects of negligence and quantum, the findings arrived at by the Tribunal are just legal and proper considering all the oral as well as documentary evidence on record and since no error is committed by the Tribunal in the said findings, same are not required to be interfered with in this appeal.
This appeal is dismissed. Office to send back the records and proceedings, if any, forthwith.