Gujarat High Court
Oriental Insurance Co. Ltd (Hub) vs Heirs Of Deceased Sanjaybhai ... on 27 January, 2022
C/FA/975/2010 JUDGMENT DATED: 27/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 975 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 of India or any order made
thereunder ?
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ORIENTAL INSURANCE CO. LTD (HUB)
Versus
HEIRS OF DECEASED SANJAYBHAI RANCHHODBHAI @ KALUBHAI
DABHI & 2 other(s)
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Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
(MR SURESHM SHAH)(805) for the Defendant(s) No. 1
MR SAMEE URAIZEE WITH VISHAL MEHTA WITH MR MEHUL S
SHAH(772) for the Defendant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
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C/FA/975/2010 JUDGMENT DATED: 27/01/2022
Date : 27/01/2022
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Rajkot passed in Motor Accident Claims Petition No. 288 of 2008, by which, the learned Tribunal has held and directed the appellant - original opponent no.2 - Insurance Company to pay the compensation to the original claimant, the original opponent no. 2 - insurer has preferred present First Appeal.
2. Brief facts of the present case are that on 13.01.2008, the deceased Sanjaybhai Ranchhodbhai @ Kalubhai Dabhi was going by travelling in Tractor bearing registration No.GJ-13-B-2331 and Trolley bearing registration no.GJ-3-X-7765 as labourer and the driver of the Tractor was driving the same in rash and negligent manner with excessive speed and by flouting the traffic rules, on account of which the deceased having thrown away from the Trolley and the wheel of the Tractor ran over the head of the deceased, as a result of which, the deceased sustained serious injury and succumbed to the injury. Hence, the legal heir of the deceased has filed the aforesaid claim petition claiming Page 2 of 7 Downloaded on : Mon Jan 31 20:26:22 IST 2022 C/FA/975/2010 JUDGMENT DATED: 27/01/2022 compensation of Rs.6,73,000/-.
2.1 After considering the oral as well as documentary evidence led by the parties, the Tribunal has partly allowed the claim petition by awarding Rs.2,06,100/- as compensation in favour of the original claimant.
3. Short question arise in the present appeal is that whether the Insurance Company is liable to pay the compensation or not.
4. The original opponent has relied upon the following documentary evidence.
Sr.No. Particulars Exhibit
/ Marks
1 F.I.R. 29
2 Station Diary entry 30
3 Inquest panchnama wherein the deceased Sanjaybhai's 31
age is mentioned ot be 28 years
4 Report sent by the police with dead body of the deceased 32
for postmortem wherein the deceased's age is mentioned to be 28 years 5 Receipt for handing over dead body of the deceased 33 6 Panchnama of scene of accident 34 7 Certificate issued by R.T.O. Rajkot in respect of ownership 35 of the vehicle No.GJ-3-X-7765 8 Postmortem report wherein the deceased's age is 36 mentioned to be 28 years 9 Charge-sheet filed against Sukhlal Hiralal Patariya for the 37 offences punishable under Sections 279 and 304-A of I.P.C. and under Sections 184 and 177 of the M.V. Act 10 R.C. Book of vehicle No.GJ-13-B-2331 which goes to show 42 that opponent No.1 was the registered owner of the said Page 3 of 7 Downloaded on : Mon Jan 31 20:26:22 IST 2022 C/FA/975/2010 JUDGMENT DATED: 27/01/2022 vehicle since 09-04-2001 11 Police statement of Batuklal Maganlal 22/3 12 Letter written by P.S.I. Kotda Sangani Police Station to 22/3 A.S.I., Shaper Veraval Police Station 13 Janva Jog Entry No.10/2008 dated 13-01-2008 of Kotda 22/5 Sangani Police Station 14 Letter written by Civil Hospital Police Chowki, Rajkot to 22/6 P.S.I., Kotda Sangani Police Station 15 Letter written by Police Head constable of civil Hospital 22/7 Police Chowki, Rajkot to Medical Officer, Civil Hospital, Rajkot 16 Police Station of the applicant - Baluben W/o. 22/12 Ranchhodbhai Popat 17 Police Statement of Sukhlal Hiralal 22/13
18. Police State of the opponent No.1 - Bharat Valjibhai 22/14
5. Heard Mr.Rituraj Meena, learned counsel appearing for the appellant - Insurance Company, Mr.Samee Uraizee, learned counsel appearing with Mr.Vishal Mehta, learned counsel with Mr.Mehul Shah, learned senior counsel for respondent no.1 and Mr.Hemal Shah, learned counsel appearing for respondent no.2.
6. Mr.Meena, learned counsel appearing for the appellant - Insurance Company has submitted that though the deceased was labourer, but he was sitting on mudguard and, therefore, it is clear breach of the conditions of the policy and, therefore, the Insurance Company is not liable to pay the compensation. In fact, he has submitted that while considering the multiplier, the Tribunal has committed an error by considering the age of the Page 4 of 7 Downloaded on : Mon Jan 31 20:26:22 IST 2022 C/FA/975/2010 JUDGMENT DATED: 27/01/2022 mother instead of deceased. He has submitted that since the original claimant has not filed any cross appeal / objection and, therefore, the question would not arise to determine the income.
7. Per contra, Mr.Uraizee, learned counsel appearing for respondent no.1 and Mr.Hemal Shah, learned counsel appearing for respondent no.2 have supported the impugned judgment and award passed by the Tribunal. They have submitted that the Tribunal has not committed any error while passing the impugned judgment and award and, therefore, no interference is called for. They have submitted that the appeal being meritless, deserves to be dismissed.
8. No other or further submissions, grounds or contentions have been raised by the learned counsel appearing for the parties.
9. Having considered the submissions canvassed by the learned counsel appearing for the respective parties, perused the record and proceedings and also perused policy at Exhibit 38 of the offending vehicle i.e. Tractor and more particularly discussion made by the Tribunal in para-19 of the impugned judgment and award, it appears that the Tribunal has rightly Page 5 of 7 Downloaded on : Mon Jan 31 20:26:22 IST 2022 C/FA/975/2010 JUDGMENT DATED: 27/01/2022 considered the submissions made on behalf of the claimant and has not considered the contentions and averments made on behalf of the Insurance Company. It also appears that the Insurance Company has recovered the additional premium towards the liability of the labourer and, therefore, the Tribunal has rightly passed the impugned judgment and award. Considering the fact that merely the deceased was travelling in the Tractor, the Insurance Company cannot resign from its liability and, therefore, the impugned judgment and award is not required to be interfered with. Considering the decisions of the Apex Court in the case of Shivraj Vs. Rajendra and another, (2018) 10 SCC 432, United India Insurance Co. Ltd. Vs. Dalsing Suppral Damor and others, 2013 Law Suit (Gujarat) 1092 and Oriental Insurance Company Limited Vs. Brij Mohan, (2007) 7 SCC 56 and considering admitted fact that the deceased of was sitting as a labourer in the Tractor with the goods, it appears that the Insurance Company has rightly fastened the liability and, therefore, the appeal deserves to be dismissed.
10. For the foregoing reasons, the appeal is hereby dismissed. There shall be no order as to costs. Record and proceedings be Page 6 of 7 Downloaded on : Mon Jan 31 20:26:22 IST 2022 C/FA/975/2010 JUDGMENT DATED: 27/01/2022 sent back to the concerned Tribunal forthwith. Pending civil applications, if any, shall stand disposed of accordingly.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 7 of 7 Downloaded on : Mon Jan 31 20:26:22 IST 2022