Gujarat High Court
United India Insurance Co. Ltd vs Babubhai Lallubhai Vala on 22 June, 2022
C/FA/2278/2008 JUDGMENT DATED: 22/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2278 of 2008
With
R/FIRST APPEAL NO. 1615 of 2013
With
R/FIRST APPEAL NO. 1616 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
================================================================
1 Whether Reporters of Local Papers may be allowed No to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ UNITED INDIA INSURANCE CO. LTD.
Versus BABUBHAI LALLUBHAI VALA & 2 other(s) ================================================================ Appearance:
First Appeal No.2278 of 2008:
MR MAULIK J SHELAT(2500) for the Appellant - Insurance Company RULE SERVED for the Defendant(s) No. 1 - Original Claimant UNSERVED EXPIRED (R) for the Defendant(s) No. 2 - Driver MR RAMKRISHNA B DAVE(3404) for the Defendant No.3 - Owner of the Truck First Appeal No.1615 of 2013:
MR MAULIK J SHELAT(2500) for the Appellant - Insurance Company MR SHAILESH C SHARMA for the Defendant No.3 - Original Claimant No.3 (Mother of deceased) RULE SERVED for the Defendant(s) No. 1 - Original Claimant (Widow) MR RAMKRISHNA B DAVE(3404) for the Defendant No.6 - Owner of the Truck Page 1 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 First Appeal No.1616 of 2013:
MR MAULIK J SHELAT(2500) for the Appellant - Insurance Company RULE SERVED for the Defendant(s) No. 1 - Original Claimant UNSERVED EXPIRED (R) for the Defendant(s) No. 2 - Driver MR RAMKRISHNA B DAVE(3404) for the Defendant No.3 - Owner of the Truck ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 22/06/2022 ORAL COMMON JUDGMENT 1.1 First Appeal No.2278 of 2008, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - insurance company, being aggrieved and dissatisfied with the judgment and award dated 02.01.2007 passed by the Motor Accident Claims Tribunal (Aux.), Nadiad in Motor Accident Claim Petition No.2384 of 1999, by which the Tribunal has awarded compensation of Rs.45,000/- with 9% per annum interest, holding opponent Nos.1 to 3 liable, jointly and severally.
1.2 First Appeal No.1615 of 2013, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - insurance company, being aggrieved and dissatisfied with the judgment and award dated 26.03.2013 passed by the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in Motor Accident Claim Petition No.173 of 2000, by which the Tribunal has awarded compensation of Rs.3,70,600/- with 7.5% per annum interest, holding opponent Nos.1 to 3 liable, jointly and severally.
1.3 First Appeal No.1616 of 2013, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - insurance company, being aggrieved and dissatisfied with the judgment and Page 2 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 award dated 26.03.2013 passed by the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in Motor Accident Claim Petition No.2588 of 1999, by which the Tribunal has awarded compensation of Rs.77,700/- with 7.5% per annum interest, holding opponent Nos.1 to 3 liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 It is the case of the claimant in M.A.C.P. No.2384 of 1999 (First Appeal No.2278 of 2008) that on 15.10.1999, the claimant was going to home in truck bearing registration No.MP.09.KB.3075 along with his goods and he paid fare of the said goods and was travelling in the above referred truck as the owner of the goods.
Whereas, it is the case of the claimants in M.A.C.P. No.173 of 2000 (First Appeal No.1615 of 2013) that deceased - Manharbhai D. Rohit was travelling along with Dharmendrasing and other persons in the above referred truck. It is averred by the claimants in paragraph No.8 of their claim petition that on 14.10.1999, deceased - Dharmendrasing and other persons visited Mahudha and were looking after the administration of Garba programme and after finishing the Garba, they were standing near Mahudha Rest House and were waiting for vehicle. At that point of time, the above referred truck bearing registration No.MP.09.KB.3075 came and deceased along with other persons stopped the said truck and were travelling in the said truck.
Whereas, it is the case of the claimant in M.A.C.P. No.2588 of 1999 (First Appeal No.1616 of 2013) that on 15.10.1999, the claimant was traveling in truck bearing registration Page 3 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 No.MP.09.KB.3075 along with his goods and he paid fare of the said goods and was travelling in the above referred truck as the owner of the goods.
It is the case of all the claimants that above referred truck was being driven by Opponent No.1 in rash and negligent manner and in excessive speed endangering to human life and when opponent No.1 tried to overtake one another truck, he lost his control over his truck, due to that, his truck dashed with the tree as road was wet. In the said accident, Manharbhai sustained serious injuries, whereas claimant - of M.A.C.P. No.2588 of 1999 also sustained serious injuries including fracture.
2.2 Notices were served to the opponents - driver, owner and insurance company of the truck. None were present except Opponent No.3 - insurance company. Opponent No.3 - insurance company has has filed its written statement at Exh.29 in M.A.C.P. No.2384 of 1999 at Exh.22 in M.A.C.P. No.173 of 2000 and at Exh.26 in M.A.C.P. No.2588 of 1999 by disputing all the averments made by the claimant in the claim petition.
2.3 Issues were framed by the Tribunal. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the various documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed all the claim petitions, as noted above.
2.4 Being aggrieved and dissatisfied with the impugned judgments and awards passed by the Tribunal, the present Page 4 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 appeals are preferred by the insurance company before this Court.
Discussion Qua First Appeal No.2278 of 2008:-
3.1 Learned advocate Mr. Maulik J. Shelat appearing for the insurance company has submitted that the Tribunal has committed error in passing the impugned judgment and award by giving direction in para 10 of the impugned judgment that the Tribunal has believed that the insurance policy of the vehicle is for goods carriage but by keeping in mind the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. versus Baljit Kaur & Ors reported in 2004 ACJ 428, the Tribunal has passed order by giving direction to the insurance company to pay first the amount to the claimant and then recover it from the owner of the vehicle i.e. original opponent No.2, which is not proper as per the submission made by learned advocate Mr. Shelat. He has contended that the liability of the insurance company can only be fastened in case where there is breach of Section 149 (4) & (5) of the Motor Vehicles Act, 1988. Therefore, there is no statutory requirement for the insurance company to indemnify the insurer. He has relied upon the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Savitri Devi & Ors reported in (2013) 11 SCC 554, where in that case the persons belonging to marriage party were carried in goods vehicle and the Hon'ble Apex Court has found that there is clear breach of terms and conditions of the insurance policy and therefore, the insurer was not held liable and therefore, he has submitted that the Tribunal has committed error in directing the insurance company to pay first to the claimant and then recover from the owner of the offending vehicle. He has further relied upon the decision of the Page 5 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 Hon'ble Apex Court in the case of National Insurance Co. Ltd. Versus Bommithi Subbhayamma & Ors. reported in (2005) 12 SCC 243 and more particularly para 9 of that judgment and has submitted that in view of Section 147 (i) (b) of the Motor Vehicles Act, 1988, the insurance company cannot be held liable to pay to pay the compensation and therefore, there is no question in passing the order of "Pay and Recover" in the facts and circumstances of the present case. He has further relied upon the recent judgment of the Hon'ble Apex Court in the case of Anu Bhanvara Etc. versus IFFCO Tokio General Insurance Company Ltd. & Ors. reported in AIR 2019 SC 3934, where the Hon'ble Apex Court has passed the order of "Pay and Recover"
but as per the submission of learned advocate Mr. Nanavati that it is passed by exercising power under Article 142 of the Constitution of India and therefore, it cannot be considered legal precedent but it can be considered as order passed in peculiar facts and circumstances of the present case. He has submitted that the present appeal is required to be allowed on that count only.
3.2 He has not submitted any other ground except the ground that the Tribunal has committed error in giving direction of "Pay and Recover" in the present case. He has prayed that this appeal may be allowed by modifying the impugned judgment and award and by exonerating the insurance company from its liability.
4. Per contra, learned advocate Mr. Ramkrishna B. Dave for the respondent No.3 - owner of the Truck has submitted that respondent No.1 has been served but was has not appeared and respondent No.2 - driver of the vehicle was found unversed.Page 6 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022
C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 Learned advocate Mr. Dave has submitted that the Tribunal has not committed any error in passing the impugned award by giving direction of "Pay and Recover" by keeping in view the catena of decisions of the Hon'ble Apex Court more particularly judgments in the case of (i) Anu Bhanvara Etc. (supra) and (ii) Baljit Kaur (supra) and paragraphs 9, 10 & 11 are relevant and has submitted that the Hon'ble Apex Court, after discussing the judgments cited by both the parties, has passed the order of "Pay and Recover"
and therefore, he has submitted that keeping in view the judgment of the Hon'ble Apex Court in the case of Anu Bhanvara Etc. (supra), the order, which is passed by the Tribunal, of "Pay and Recover" is just and proper. He has submitted that as per the catena of judgments of the Hon'ble Apex Court, this Court has considered the aspect of liability of the insurance company where the passenger along with his goods/as a labourer are travelling in the goods vehicle. He has submitted that in view of Section 147 and 149 of the Motor Vehicles Act, 1988, the insurance company cannot shrug off from its liability to pay the amount of compensation as the insurance company has insured the vehicle in question and merely on the technical ground, the insurance company cannot escape from its liability to pay the amount of compensation to the claimant and therefore, he has submitted that the judgment and award passed by the Tribunal is just and proper and in fact, the insurance company should be held jointly and severally liable to pay the compensation along with the respondent No.3.
Discussion Qua First Appeal No.1615 of 2013 & 1616 of 2013:-
5.1 Learned advocate Mr. Maulik J. Shelat appearing for the Page 7 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 insurance company in both the appeals has submitted that the Tribunal has committed gross error in considering the liability since the insurance company has not challenged the order passed under Section 140 of the Motor Vehicles Act, 1988 in both the appeals and when order, which is passed under Section 140 of the Act, attains finality in the eyes of law then it would be binding on the Tribunal while passing the final award under Section 168 of the Act and therefore, the Tribunal has fastened the liability on the insurance company and in the order passed under Section 140 of the Act in both the appeals the liability of the insurance company is fastened by the Tribunal and therefore he has submitted that that findings is not correct and also is not squarely applicable in the facts of the present case in view of the doctrine of res judica under Section 11 of the C.P.C. which reads as under:
" Section 11 of the Code of Civil Prcedure:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Page 8 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022
C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
And the Division Bench of this court has held the issue in the judgment of this Court in the case of New India Assurance Co. Ltd. Vs. Kalabhai Maganbhai Koli & Ors. reported in 2016 (1) GLH 68, paragraph 38 (iv) is relevant and the Division Bench of this Court has stated that there would be no question of res judicata in facts and circumstances of such case. He has further submitted that the claimant was travelling in tractor as a gratuitous passenger and therefore, the insurance company cannot be saddled with liability by keeping in view the the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Savitri Devi & Ors. reported in 2012 (4) Scale 111.
5.2 He has submitted that except the facts are covered in view of Section 149 (4) & (5) of the Motor Vehicles Act, 1988, the Page 9 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 insurance company cannot be held statutory liable to pay the amount of compensation where the person is travelling in goods carrying vehicle. He has further submitted that the Tribunal has not considered the correct position of law and has wrongly saddled with liability of the insurance company and therefore, he has prayed that both the appeals may be allowed by passing appropriate order.
6. Per contra, learned advocate Mr. Ramkrishna B. Dave for the respondent No.6 - owner of the Truck has submitted that the Tribunal has not committed any error in passing the impugned judgment and award and in holding jointly and severally liable. He has submitted that keeping in view the catena of judgments of the Hon'ble Apex Court and of this Court, the insurance company cannot be exonerated from its liability to pay the amount of compensation. He has drawn our attention towards the factum that insurance company has been paid Rs.2,779/- towards 'Liability to Public Risk' and there is additional amount in the premium under IMT-13, IMT-14 and IMT-17, which pertains to legal liability to non- fare paying passengers and pertains to persons in connection with the operation of loading and unloading in motor vehicle and therefore, he has submitted that the Tribunal has not committed any error in fastening liability. Moreover, when the insurance company has accepted the awarded passed under Section 140 of the Motor Vehicles Act, 1988, which was remained unchallenged now then it is not appropriate on the part of the insurance company to challenged the award on the aspect of legal liability which is pass under Section 166 read with Section 168 of the Motor Vehicles Act, 1988. Therefore, he has prayed that both the appeals Page 10 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 are required to be dismissed.
Findings Qua First Appeal No.2278 of 2008:-
7. I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the submissions under the provisions of Section 149 (4) and (5) of the Motor Vehicles Act, 1988. Only in the facts where it is covered under the provisions of Section 149 (4) & (5) of the Motor Vehicles Act, 1988, the Tribunal should direct the insurance company to pay first and then recover. On the contrary, I found that the judgment of the Hon'ble Apex Court in the case of Baljit Kaur (supra) and have considered the aspect of "Pay and Recover" in proper context. Thereafter, learned advocate Mr. Shelat has placed reliance of the judgment of the Hon'ble Apex Court in the case of Savitri Devi (supra) and has submitted that the Court has considered this aspect where it is admitted position that passengers are travelling in the goods vehicle, which are more in number by way of marriage party and therefore, in the facts and circumstances of that case, the Hon'ble Apex Court has found that the direction given for "Pay and Recover" is not proper in the present case and nothing is not found from the record to justify the present case. Further, if we peruse the insurance policy, which is issued by the United India Insurance Corporation Ltd. for the period from 03.08.1999 to 02.08.2000, whereby the premium is paid of Rs.2,779/- towards 'Liability to Public Risk' and there is additional amount in the premium under IMT-13, IMT-14 and IMT-17, which pertains to legal liability to non- fare paying passengers and the premium is also paid under IMT-
Page 11 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 17, which pertains the persons in connection with the operation of loading and unloading in motor vehicle and accordingly, the additional premium is paid. Moreover, in view of the passengers, who are travelling in the goods vehicle and by keeping in view the judgment of the Hon'ble Apex Court in the case of Baljit Kaur (supra), the Tribunal has rightly directed that the amount to pay first to the claimant by the insurance company and then recover from the insurer and this aspect is further verified by keeping in view the judgment of the Hon'ble Apex Court in the case of Anu Bhanvara Etc. (supra), where the Hon'ble Apex Court has considered in para 9 the judgment cited by learned advocate appearing for the claimants, in para 10 the judgment cited at the bar on behalf of insurance company for order of "Pay and Recover", and in para 11 of the judgment of insurer. I find no illegality and infirmity is committed by the Tribunal in passing the order of "Pay and Recover", which is found just and proper, in the facts and circumstances of the present case and in the interest of justice and therefore, I found no merit in the contention raised by learned advocate for the insurance company about aspect that the Tribunal has committed error in directing to pay first and then recover from the owner.
8. In view of aforesaid discussion, following order is passed.
8.1 The present First Appeal No.2278 of 2008 is dismissed, with no order as to costs.
8.2 The Tribunal is directed to disburse the entire amount, which is lying in the FDR and/or with the Tribunal, along with accrued interest thereon if any, to the claimant, by account payee cheque, Page 12 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 after proper verification and after following due procedure.
8.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.
Findings Qua First Appeal No.1615 of 2013 & 1616 of 2013:-
9. I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. I have already considered the submissions under the provisions of Section 149 read with section 147 of the Motor Vehicles Act, 1988, the insurance company cannot be held liable to pay the amount of compensation. I have perused the insurance policy, which is issued by United India Insurance Co. Ltd. for the period from 03.08.1999 to 02.08.2000 whereby the additional premium is paid towards 'Liability to Public Risk' and there is additional premium under IMT-13, IMT-14 and IMT-17, which pertains to legal liability to non-fare paying passengers and pertains to persons in connection with the operation of loading and unloading in motor vehicle. Moreover, I have considered the submissions of the learned advocate for the insurance compensation in abovementioned first appeal, only thing, which is required to be considered in both the appeals, is that the Tribunal has rightly considered that the order is passed under Section 140 of the Motor Vehicles Act, 1988 so the doctrine for bar of res judicata will apply and therefore, insurance company cannot draw my attention under Section 166 of the Motor Vehicles Act, 1988 and that issue is now well settled and also is already decided by this Court in the case of Kalabhai Maganbhai Koli (supra), para Page 13 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 38 (iv) is relevant, which is extracted herein below:
"Para 38 (iv):-
(iv) No other defences including those referred to in section 149(2) of the MV Act would be available to the insurance company at the stage of application under Section 140 of the MV Act. It would therefore, not be necessary, in fact, not permissible for the insurance company to raise such defences at this stage and if raised the Tribunal shall not decide the same at that stage. There would therefore, be no question of any res judicata with respect to such issues at the stage when the Claims Tribunal proceeds to decide the Claim Petition under Section 166 of the MV Act."
And therefore, in view of the settled position of law, the Tribunal has committed error in holding that res judicata will apply in the case where the insurance company has failed to challenge the award passed under Section 140 of the Motor Vehicles Act, 1988 while considering the claim petition under Section 166 of the M.V. Act and this findings is contrary to the settled position of law and therefore, it is required to be interfered with and therefore, the appeal is allowed to the above extent by setting aside the observation made in: Para 9.1 of common judgment and award passed by the Tribunal in both the claim petitions, which would meet the ends of justice.
10. In view of aforesaid discussion, following order is passed.
10.1 The present First Appeal Nos.1615 of 2013 and 1616 of 2013 are partly allowed, to the aforesaid extent.
10.2 The judgment and award dated 26.03.2013 passed by the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in Motor Page 14 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022 C/FA/2278/2008 JUDGMENT DATED: 22/06/2022 Accident Claim Petitions No.173 of 2000 as well as 2588 of 1999 are hereby modified by setting aside the observation made in Para 9.1 of the judgment, regarding aspect of 'Res Judicata'. However, the operative part of the award is not disturbed and remained as it is.
10.3 Since the cognate appeal is arising from the same accident, the Tribunal has directed the insurance company to pay first to the claimant(s) and then recover from the owner, which is upheld by this Court in First appeal No.2278 of 2008 and therefore, it is appropriate to directed in both the appeals that the insurance company will first pay the amount of compensation to the claimant(s) and then recover from the owner of the vehicle with aforesaid modification in the judgment and awarding by granting liberty to the insurance company to "Pay and Recover".
10.4 The Tribunal is directed to disburse the entire amount, which is lying in the FDR and/or with the Tribunal, along with accrued interest thereon if any, to the claimant(s), by account payee cheque, after proper verification and after following due procedure.
10.5 Record and proceedings be sent back to the concerned Tribunal of both the appeals, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 15 of 15 Downloaded on : Sat Dec 24 19:22:06 IST 2022