The Insurance Company must prove the owner's knowledge of the driver's unlicensed status to escape liability; mere allegations are insufficient.

JUDGMENT :

J.C. DOSHI, J.

1. Since both the First Appeals filed u/s 173 of the Motor Vehicles Act, 1988 (in short “the Act”) arise out of selfsame accident having common judgment and award in M.A.C.P. No.46 of 2013 passed by the learned Motor Accident Claim Tribunal (Aux), Mehsana at Visnagar, they are being disposed of by this common order. First Appeal No.2759 of 2024 is filed by original claimant, whereas First Appeal No.4127 of 2023 is filed by the Insurance Company.

2. The brief facts of the case are as under.

2.1 The deceased Madhuben wife of Rameshbhai Raval was standing nearby the Madhasana DP Bus Station on 15.03.2013 at 15.00 hours. Opponent No.3 driver of the motorcycle bearing Registration No.GJ-090AP-3528 came in rash and negligent manner and dashed his motorcycle with Madhuben and caused the road accident which resulted into death of Madhuben. Hence, the claimants have filed claim petition before the learned Tribunal which came to be partly-allowed. Hence, these appeals.

3. Heard learned advocate Mr.Nishit Bhalodi for the claimants, learned advocate Mr.Nitesh Jain for driver and owner of the offending vehicle and learned advocate Ms.Kirti Pathak for the Insurance Company.

4. Learned advocate Mr.Nishit Bhalodi after arguing to some extent withdraws First Appeal No.2759 of 2024. Accordingly, the appeal stands disposed of as withdrawn.

5. As far as appeal of Insurance Company is concerned, learned advocate Ms.Kirti Pathak submits that the driver of the offending vehicle was not holding any driving licence which could be culled out from the charge-sheet at Exhibit-27. It is also submitted that police authority after investigating into offence charged driver of the offending vehicle with offence under the Act for not holding valid and effective driving licence on the day of accident. Effectively, putting such charge proves that driver of offending vehicle was not holding valid and effective driving licence. She would further submit that the Insurance Company has issued notice to the driver and owner of the of the vehicle to produce driving licence at Exhibit-55 to 59 but it was not complied by the opponent Nos.1 and 3. She would further submit that to support the contention of non holding of the driving licence at the time of accident, the Insurance Company has also examined its officer at Exhibit-45. She would submit that in such a way by leading evidence the Insurance Company has proved its defense that at the time of road accident driver of the offending vehicle was not holding valid and effective driving licence. This factual aspect proved breach of terms and conditions of the policy and as such exonerates Insurance Company from liability to pay compensation for and on behalf of the owner. She would further submit that learned Tribunal has committed error in holding that in application under Section 163-A of the Motor Vehicle Act, 1988 the Insurance Company cannot raise defense available under Section 149 of the Act. Therefore, she submits that learned Tribunal erred in fastening the liability upon the Insurance Company.

5.1 In support of her submissions, learned advocate Ms.Pathak has referred to the following judgments :

(i) Bhuwan Singh vs. Oriental Insurance Company Limited and another – 2009 (5) SCC 136.

(ii) United India Insurance Company Limited vs. Gian Chand and others – 1997 (7) SCC 558.

(iii) United India Insurance Company Limited vs. Rakesh Kumar Arora and others – 2008 (13) SCC 298.

(iv) National Insurance Company Limited vs. Brij Pal Singh and another – 2002 ILR ALL (3) 778.

(v) Mahmad Rafik Munnebhai Ansari vs. Gujarat State Road Transport Corporation, being First Appeal No.3173 of 2021 along with other First Appeal.

5.2 Upon above submissions, she would submit to allow the first appeal filed by the Insurance Company and to exonerate it.

5.3 Alternatively, she submits that for breach of terms and conditions of the policy since claimant is third party, order of pay and recover may be passed.

6. In repl