Gujarat High Court
Oriental Insurance Co Ltd vs Surtaniben Posilyabhai Vasava on 15 July, 2024
NEUTRAL CITATION
C/FA/66/2013 JUDGMENT DATED: 15/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 66 of 2013
With
R/FIRST APPEAL NO. 67 of 2013
With
R/FIRST APPEAL NO. 68 of 2013
With
R/FIRST APPEAL NO. 69 of 2013
With
R/FIRST APPEAL NO. 70 of 2013
With
R/FIRST APPEAL NO. 71 of 2013
With
R/FIRST APPEAL NO. 72 of 2013
With
R/FIRST APPEAL NO. 73 of 2013
With
R/FIRST APPEAL NO. 74 of 2013
With
R/FIRST APPEAL NO. 75 of 2013
With
R/FIRST APPEAL NO. 76 of 2013
With
R/FIRST APPEAL NO. 77 of 2013
With
R/FIRST APPEAL NO. 78 of 2013
With
R/FIRST APPEAL NO. 79 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
Page 1 of 16
Downloaded on : Thu Jul 18 20:50:17 IST 2024
NEUTRAL CITATION
C/FA/66/2013 JUDGMENT DATED: 15/07/2024
undefined
of India or any order made thereunder ?
==========================================================
ORIENTAL INSURANCE CO LTD
Versus
SURTANIBEN POSILYABHAI VASAVA & ORS.
==========================================================
Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 4
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/07/2024
COMMON ORAL JUDGMENT
1. This group of appeals are filed by the appellant- insurance company under Section 173 of the Motor Vehicles Act, 1988 (`MV Act' for short), being aggrieved and dissatisfied with the common judgment and award dated 9.2.2009 passed by the Motor Accident Claims Tribunal (Main), Narmada in MACP No.31 of 2007 and other allied matters, whereby the claim petitions of the opponents- claimants were partly allowed and the appellant-insurance company was ordered to pay the amount of compensation, as ordered in the impugned award, to the original claimants.
2. As all these appeals arise out of the common judgment and award, with the consent of the learned advocates for the parties, they are heard together and decided by this common judgment.
Page 2 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024
NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined
3. The brief facts leading to filing of these appeals are such that the claim petitions were filed by the original claimants claiming compensation by stating that the accident took place on 2.12.2006 at about 7.30 p.m. on Bardoli-Navsari road in the sim of village Nogama-Pardi within the jurisdiction of Bardoli taluka; that all the claimants were going along with luggage in a tempo bearing registration no.GJ7-X-4292 and when the said tempo reached in the sim of village Nogama-Pardi-Navsari road, the original opponent no.1 was driving the tempo with full speed and also in rash and negligent manner which resulted into serious accident wherein the said tempo turned turtle and hence serious accident occurred in which some persons died and some received injuries.
4. On issuance of notice, the original opponent no.1- driver of the vehicle in question did not appear and the appellant-insurance company appeared and resisted the claim petitions. The issues were framed by the learned Tribunal. After considering the oral and documentary evidence produced on the record, the learned Claims Tribunal, passed the impugned common judgment and award, which is challenged by way of these appeals.
5. The only contention raised by the learned advocate Page 3 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined for the appellant is that the deceased and the injured were travelling in the vehicle in question as gratuitous passengers in a goods vehicle. He submitted that the insurance company cannot be held liable to pay the compensation in respect of gratuitous passengers who were neither contemplated at the time of the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. He further submitted that the learned Tribunal has erred in holding the insurance company liable to pay the compensation by failing to consider the FIR, statements of witnesses and investigating report and therefore, the insurance company should be exonerated from the liability to pay the compensation and the order of `pay and recover' be passed. He, therefore, submitted to allow these appeals by modifying the award accordingly.
6. Per contra, learned advocate for the original claimants has submitted that the learned Tribunal has rightly come to the conclusion, after discussing the evidence produced on the record, that it is the duty of the insurance company to examine driver and owner to prove their contention that the deceased and injured were not travelling as owner of the goods and they were travelling as gratuitous passengers, which the insurance company failed to do so and therefore, when the policy was in existence, the insurance company is Page 4 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined also equally liable and responsible for the negligent act committed on account of rash and negligent driving of the vehicle in question. He, therefore, submitted to dismiss these appeals. He relied on the judgment of this Court dated 10.5.2019 passed in First Appeal Nos.1975 of 2005 and allied matters and submitted those appeals were dismissed, after considering the various judgments of the Hon'ble Apex Court and this Court, and therefore, these appeals are also required to be dismissed.
7. Heard learned advocates for the parties and perused the material placed on record including the impugned common judgment and award.
8. It transpires from the record that the factum of accident is not disputed. That all the claimants filed the affidavits in support of their claim petitions and they have been cross-examined by the other side, wherein they have stated that they are not permanent residents of village Vadia of Nandod taluka but except rainy season they reside at Village Vadia; that they went to work at house of Vipulbhai and they were waiting for any vehicle to go and after fixing fare, they sat on tempo with sacks of rice and clothes and in all there were 21 persons sitting on the sacks. Looking to Page 5 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined the complaint and the panchanama of scene of offence as well as the oral testimony of the witnesses, it can be said that the road at the scene of incident was wide and the accident could have been avoided by the care of the driver of the offending tempo, however, due to the rash and negligent driving on the part of the driver of the offending tempo, the accident had occurred.
9. Further, on the ground raised in these appeals as to whether the appellant-insurance company is liable to pay the compensation or not, from the deposition of the claimants themselves, it is stated that they were waiting for a vehicle and when the tempo in question arrived, they sat in the tempo after fixing fare and sat on the sacks of rice and clothes. The FIR and panchanama show that the vehicle was carrying the goods and that there is nothing coming on the record to show that the rice bags and clothes were of the deceased or other passengers. Though the driver of the vehicle is not examined to prove the contention of the insurance company that the deceased and injured were travelling in the tempo in the capacity of gratuitous passengers, the say of the claimants themselves who have sustained injuries and who have been travelling in the said tempo at the time of the accident that they were waiting for a vehicle and they sat in the tempo on the sacks of rice and Page 6 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined clothes cannot be ignored. Therefore, there is nothing contrary coming on the record that the deceased and the injured were travelling in the goods vehicle without goods and the goods which were in the vehicle do not belong to them. The insurance policy was in existence at the time of accident, however, as no premium is paid for the unauthorized passenger, the unauthorized passengers are not covered in the said policy and the deceased and the injured claimants were travelling in the said vehicle as unauthorized passengers, as discussed hereinabove.
10. In this background, if the judgments of the Hon'ble Apex Court are perused, it is observed in the case of National Insurance Co.Ltd. V/s Baljit Kaur and Others reported in 2004 ACJ 429 that if no premium is paid by unauthorized passengers, the insurance company can be directed to satisfy the award and recover the award from the owner in execution proceedings and for that insurance company need not to file a separate suit.
11. Further, in the case of Khenyel V/s New India Assurance Company Limited and others reported in (2015)9 SCC 273, it is held by Hon'ble Supreme Court in paragraph 20 as under:
"20. This Court in Challa Upendra Rao [(2004) 8 SCC 517 :
2005 SCC (Cri) 357] and Nanjappan [(2004) 13 SCC 224 : Page 7 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024
NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined 2005 SCC (Cri) 148] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insured."
12. In the case of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v.
Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] Page 8 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [ Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that :
(SCC p. 226, para 8) Page 9 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined "8. ... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
13. In the case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, it is held in paragraphs 11 to 16 as under:
"11. In reply, the learned counsel for the respondents (insurance companies) supported the impugned order and contended that no case is made out to interfere in the impugned judgment. It was his submission that once it is held and rightly that the insurance company is not liable because the victims were travelling in the offending vehicle as "gratuitous passengers", there did not arise any occasion to pay the awarded sum to the claimants by the insurance company and nor the principle " pay and recover" could be applied against the insurance company in such circumstances thereby making them liable to pay the awarded sum to the claimants.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the Page 10 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined submission of the learned counsel for the appellants (claimants).
13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent
3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.
14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two-Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur [National Insurance Co.
Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] , National Insurance Co. Ltd. v. Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] , National Insurance Co. Ltd. v. Kaushalaya Devi [National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467] , National Insurance Co. v. Roshan Lal [National Insurance Co. Ltd. v. Roshan Lal, (2017) 4 SCC 803] and National Insurance Co. Ltd. v. Parvathneni [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] . Page 11 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024
NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined
15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 :
(2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [ Saju P. Paul v.
National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under : (Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) Page 12 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
***
26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said Page 13 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
14. In the judgment in the case of Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755, the Hon'ble Apex Court has held in paragraph 10 as under:
"10. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the claimant(appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this court in National Insurance Co.Ltd. V.Swaran Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh Kumar Singh, 2017 ACJ 1031 (SC). In other words, the Page 14 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024 NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined High Court should have partly allowed the appeal preferred by the respondent No.2, Appellant may, therefore, succeed in getting relief of direction to respondent No.2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
15. In view of the above discussion and the above referred principles laid down by the Hon'ble Apex Court, when there is breach of the conditions of policy in terms of the deceased and the injured claimants travelling in the tempo involved in the accident as gratuitous passengers and unauthorized passengers, the insurance company cannot be held liable to pay the amount of compensation and therefore, the appellant-insurance company is exonerated from the liability of paying the compensation.
16. However, as the manifest object of the provisions of the MV Act is to ensure that the party, who suffers injuries due to the use of the motor vehicle, and may be able to get the damages for the injuries sustained/death. If the goods vehicle is used for carrying the passengers, against the insurance policy, as is in the case on hand, the claimants cannot suffer for the technicalities of whether the owner/insurance company should pay the amount. Page 15 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024
NEUTRAL CITATION C/FA/66/2013 JUDGMENT DATED: 15/07/2024 undefined As the vehicle involved in the accident is insured with the appellant-insurance company, the appellant-insurance company shall first pay the compensation and it is for the insurance company to recover from the owner, if it so wishes. As stated in the judgment of the Hon'ble Apex Court in the case of Baljit Kaur and others (supra), the appellant-insurance company can recover the award from the owner in execution proceedings and need not file a separate suit for the same.
17. The impugned common judgment and award dated 9.2.2009 passed by the Motor Accident Claims Tribunal (Main), Narmada in MACP No.31 of 2007 and other allied matters is modified to the above extent. Rest of the common judgment and award remains unaltered.
18. The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant/s, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.
19. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 16 of 16 Downloaded on : Thu Jul 18 20:50:17 IST 2024