THE UNITED INDIA INSURANCE CO. LTD.versusGIRISHKUMAR ISHWARBHAI MAKWANA

     C/FA/2601/2023                                 ORDER DATED: 08/01/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2601 of 2023

                                   With
                      R/CROSS OBJECTION NO. 68 of 2024
                                     In
                       R/FIRST APPEAL NO. 2601 of 2023
==========================================================
                 THE UNITED INDIA INSURANCE CO. LTD.
                                Versus
              GIRISHKUMAR ISHWARBHAI MAKWANA & ORS.
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR R G DWIVEDI(6601) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2,5
==========================================================

 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                              Date : 08/01/2026

                               ORAL ORDER

1)    Feeling aggrieved by and dissatisfied with the judgment and award
dated 30.11.2022 passed by learned Motor Accident Claims Tribunal at
Ahmedabad Rural, in Motor Accident Claim Petition No.1363 of 2013, the
appellant – Insurance Company has preferred present appeal under Section
173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for
short), whereby, the Tribunal has directed to pay the compensation from
the Insurance Company and then to recover from the owner of the vehicle.
Against the same, the owner of the vehicle has filed Cross-Objection.

2)    Heard Mr. Rathin Raval, learned counsel for the appellant- Insurance
Company and Mr. R.G.Dwivedi, learned counsel for respondent No.3.
Though served, none appears for respondent No.1, 2, 4 and 5.

3)    It is the case of the claimants that on 25.01.2013, the deceased was
going in rickshaw and when the rickshaw reached near the spot of accident,
at that time, one buffalo came in way of rickshaw, due to which immediately
brakes were applied and another rickshaw coming from back side collided



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     C/FA/2601/2023                                 ORDER DATED: 08/01/2026




with the insured rickshaw. As a result, deceased received fatal injuries and
succumbed to it. Hence, claimants were filed claim petition seeking
compensation of Rs.75,00,000/-. The tribunal partly allowed the claim
petition and awarded compensation of Rs.1265800/- along with interest at
the rate of 9 % from the date of filing of claim petition till its realization
from the appellant Insurance Company.

4)    Learned counsel for the appellant has submitted that the Tribunal
has committed an error in passing the order of “pay and recover”. Driver of
rickshaw did not possess any license to ply the rickshaw and said defense is
proved on record by examining RTO ofÏcer below Exh:44, from which it
clearly shows that the license was obtained after the accident. Hence, the
insurance company is required to be exonerated as they having no liability
to indemnify the owner. Hence, he has requested to quash and set aside the
order of pay and recover.

5)    Learned counsel for respondent No.3 – owner of the rickshaw who
has filed Cross-Objection has submitted that the driver of the rickshaw
No.GJ-01-CY-4418 was holding valid and effective license and perusing the
deposition produced at Exh:44, it appears that the license was obtained by
respondent No.3. Hence, he has requested to allow the Cross- Objection as
prayed for.

6)    As only the aspect of liability and the order of “pay and recover” are
challenged, no other issues have been challenged by the parties.

7)    Upon perusal of the complaint, it is evident that respondent No.1 has
been chargesheeted under Sections 279, 304-A, 337 and 338 of the Indian
Penal Code, as well as Sections 177 and 184 of the Motor Vehicles Act. The
Tribunal has considered the evidence produced on record and has found
that respondent No.3, who was driving Piaggio rickshaw bearing
registration No. GJ-01-CY-4418, was not holding a valid and effective
driving licence at the time of the accident, and that this defence has been



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         C/FA/2601/2023                                                    ORDER DATED: 08/01/2026




duly proved. In the written statement, a specific defence to this effect was
raised. The RTO OfÏcer was examined at Exh:42, and an extract of the
driving licence was produced on record, which shows that the licence was
issued subsequent to the alleged accident. The licence was issued on
01.05.2013,         whereas         the      accident        occurred         on      25.01.2013,          i.e.,
approximately four months earlier. Hence, it stands proved that on the date
of the accident, respondent No.1 was not holding a valid and effective
driving licence. As per the insurance policy produced at Exh:47, there was
clear breach of the terms and conditions of the policy. The Tribunal has
accepted this defence and, in view thereof, has exonerated the Insurance
Company. However, so far the claimant is concerned, he is a third party, and
under Section 150 of the Motor Vehicles Act, it is the duty of the Insurance
Company to satisfy the award.

8)        For the foregoing reasons and observations as well as the
observations made by the Supreme Court of India in case of Rama Bai v.
Amit Minerals & Others, 2025 INSC 1162, this Court is of considered view
that the Tribunal has not committed any error in exonerating the insurance
company due to breach of policy and passing an order of “pay and recover”.
Hence, present appeal fails and is hereby dismissed. Cross-Objection stands
also dismissed.



                                                                        (HASMUKH D. SUTHAR,J)
SUCHIT

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: PATEL SUCHIT JAYESHBHAI(HC01083), Private Secretary, at High Court of Gujarat on 12/01/2026 15:42:58




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