IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3930 of 2025 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In R/FIRST APPEAL NO. 3930 of 2025 ==========================================================

THE NEW INDIA ASSURANCE COMPANY LTD.

Versus DHANIBEN KESHAVBHAI PATNI (LHS OF DECD. KESHAVBHAI KANJIBHAI PATNI) & ORS.

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Appearance:

MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 27/11/2025

ORAL ORDER

[1.0] This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant–original opponent No.2 – The New India Assurance Company Ltd. against the judgment and award dated 30.04.2025 passed by the Motor Accident Claims Tribunal (Auxi.), Ahmedabad (for short referred to as “learned Tribunal”) in Motor Accident Claim Petition No.1264 of 2013, wherein the learned Tribunal has partly allowed the claim petition of original claimant and awarded compensation of Rs.8,68,800/- with interest at the rate of 9% per annum from the date of the claim petition to be paid by the appellant herein – insurance company and owner of the offending vehicle.

[2.0] Heard learned advocate for the appellant.

[3.0] The brief facts of the present claim petition are that on the date and time of the accident, when the deceased was going on motorcycle of respondent No.5 as a pillion rider and when they reached near Padmanath Cross Road, one cow came across the bike of the respondent No.5 and as a result, the bike was slipped and accident took place. In the said accident, the deceased sustained serious injuries and during the treatment, he died on 11.09.2012. Hence, the claimants preferred claim petition and the Tribunal was pleased to award compensation of Rs.8,68,800/- to the original claimant. Being aggrieved and dissatisfied by the impugned judgment and award, present appeal is filed by the Insurance Company of the offending vehicle.

[4.0] Learned advocate for the appellant has submitted that the Tribunal has committed an error in fastening liability on the Insurance Company despite the evidence produced on record that the driver of motorcycle was not having the driving license. Insurance Company was able to prove willful breach of the policy and terms and conditions under Section 149(2)(a)(ii) of the Act. It is also submitted that, even as per the limited defense available to the Insurance Company under Section 149(2) of the Act, the ground of no valid license is a statutory defense and once proved, it entitles the insurer to avoid liability. Hence, the tribunal has committed an error in applying the principle of “pay and recover”. Once no driving license does exist, then question does not arise to pass an order of pay and recover. Such rule be applied only in the case of technical irregularities, such as expired license or minor deviations, not in completely illegal acts such as allowing an unlicensed person to drive. In view of aforesaid facts, she has requested to allow the present appeal.

[5.0] Having heard learned advocate appearing for the appellant and going through the material placed on record, it appears that the Tribunal has not committed any error and considered all aspects and came to the conclusion that on the date of accident, driver of motorcycle was not holding valid and effective license. To saddle with the liability of the Insurance Company, the Tribunal has assigned reasons in the judgment and award more particularly in para 23. The Tribunal has observed that from the testimony of witness Shri Kuldipkumar Naranbhai Thakkar, Asst. Motor Vehicle Inspector, RTO Patan at Exh:37 and extract of Driving License of respondent No.5 is produced at Exh:40, it appears that on 10.09.2012, the respondent No.5 – driver of Motorcycle was not holding valid and effective license and license of respondent No.5 was issued on 21.05.2015 for motorcycle w