Gujarat High Court
New India Assurance Co. Ltd vs Dudabhai Gagjibhai on 7 October, 2022
C/FA/4774/2006 JUDGMENT DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4774 of 2006
With
R/FIRST APPEAL NO. 4775 of 2006
With
R/FIRST APPEAL NO. 4776 of 2006
With
R/FIRST APPEAL NO. 4777 of 2006
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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NEW INDIA ASSURANCE CO. LTD.
Versus
DUDABHAI GAGJIBHAI & 2 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MS AMRITA AJMERA(5204) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/10/2022
ORAL JUDGMENT
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1. The present group of appeal is filed by the New India Assurance Company Limited against the common judgment and award dated 07.08.2006 passed by learned Motor Accident Claims Tribunal (Aux.), 9th Fast Track Court, Rajkot in Motor Accident Claims Petition Nos. 1400 of 1995, 12 of 1996, 72 of 1996 and 70 of 1996 arising from one and same accident. The Tribunal partly allowed the said claim petitions of the original claimants.
2. Since present group of appeal arising from one and same accident and also from the common judgment and award passed by the Tribunal, all these appeals are decided by this common judgment and order.
3. The short facts giving rise to present appeals are that the claimants were travelling in Matador bearing registration No.GJ-
13-T-5438 and the driver has driven the vehicle in rash and negligent manner and in excessive speed and lost control over the steering, due to which, the accident took place on 29.12.1995 at about 5.00 p.m. from Saat Hanuman Temple to Pir Page 2 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022 C/FA/4774/2006 JUDGMENT DATED: 07/10/2022 Dargah on Kuvadva National Highway. In the said accident, the claimant of M.A.C.P No.1400 of 1995 and claimant of M.A.C.P. No.72 of 1996 sustained injuries and the original claimants of M.A.C.P. No.12 of 1995 and M.A.C.P. No.70 of 1996 sustained fatal injuries. Hence, the claimants and legal heirs of the deceased have preferred the said claim petitions respectively.
3. The Tribunal, after evaluating the evidence on record, partly allowed the present claim petitions.
4. Being aggrieved by the said claim petitions, the present appeals preferred by the appellant - Insurance Company.
5. Heard Mr.Palak Thakkar, learned counsel appearing for the appellant - Insurance Company and Ms.Amrita Ajmera, learned counsel appearing for the respondents - original claimants.
6. Mr.Thakkar, learned counsel appearing for the appellant -
Insurance Company has submitted that the vehicle in question is a goods vehicle is used to carry the passengers and, therefore, Page 3 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022 C/FA/4774/2006 JUDGMENT DATED: 07/10/2022 the deceased and the injured were gratuitous passengers and hence, the Insurance Company cannot be held liable for payment of the amount of compensation. He has submitted that there is a breach of condition of the policy and, therefore, the liability cannot be fasten upon the Insurance Company.
6.1 Mr.Thakkar, learned counsel has submitted that the impugned judgment and award passed by the Tribunal is against the evidence on record and merits of the case. He has submitted that there was a clear violation of the condition of the Insurance Policy as the vehicle was used for hire. He has submitted that the deceased and the injured were travelling in the goods vehicle and, therefore, Insurance Company cannot be held liable for compensation and ought to have been exonerated. He has submitted that the appeals deserve to be allowed.
6.2 In support of his arguments, Mr.Thakkar, learned counsel has placed reliance upon the following decisions.
Page 4 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022C/FA/4774/2006 JUDGMENT DATED: 07/10/2022 (1) United India Insurance Company Limited Vs. Lilaben W/o.
Decd. Bhikhabhai Premjibhai Kathirya rendered in First Appeal No. 2121 of 2008 dated 18.11.2013 by this Court (Coram: Hon'ble the Chief Justice Mr.Bhaskar Bhattacharya);
(2) The New India Assurance Company Limited Vs. Sureshkumar Shakralal Darji rendered in First Appeal No.4601 of 2007 to First Appeal No.4602 of 2007 dated 15.06.2017 by the Division Bench of this Court (Coram:
Hon'ble Mr.Justice M. R. Shah and Hon'ble Mr.Justice B. N. Karia);
(3) Shivaraj Vs. Rajendra reported in (2018) 10 SCC 432;
(4) United India Insurance Company Limited Vs. Janubhai Radvabhai Vasava rendered in First Appeal No.1975 of 2005 and allied appeals dated 10.05.2019 by this Court (Coram: Hon'ble Mr.Justice B. N. Karia);
(5) New India Assurance Company Limited Vs. Latifsha Bhachalsha Shaikh rendered in First Appeal Nos.2911 of 2010 to 2913 of 2010 dated 08.12.2021 by this Court.Page 5 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022
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7. Ms.Ajmera, learned counsel appearing for the respondents
- original claimants has supported the impugned judgment and award and has submitted that the Tribunal has not committed any error of facts and law in allowing the claim petitions. She has submitted that the appeals being meritless deserves to be dismissed.
8. I have considered the submissions canvassed by the learned counsel appearing for the respective parties and considered the materials placed on record. I have perused the impugned judgment and award of the Tribunal and record and proceedings of the case. It is an admitted fact that the Tribunal has recorded the findings in favour of the original claimants. The deceased and injured were travelling in the offending vehicle as gratuitous passengers and, therefore, the arguments made by the Insurance Company was turned down by the Tribunal and not accepted. Considering the judgment and order dated 08.12.2021 passed by this Court in First Appeal No.2911 of 2010 and allied appeals and the judgment and order dated 15.06.2017 passed by the Division Bench of this Court in First Appeal No.4601 of Page 6 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022 C/FA/4774/2006 JUDGMENT DATED: 07/10/2022 2007 and First Appeal No.4602 of 2017, the appeals deserve to be allowed and the impugned judgment and award deserves to be modified to the extent.
9. In the case of Latifsha Bhachalsha Shaikh (supra), this Court has held and observed in paragraphs no. 8 to 14 as under:-
"8. Though the notice served upon the other side, no one is presence therefore, the present appeal is to be decided on the basis of the records and proceedings submitted to the Court. It is an admitted fact that the Tribunal has recorded the findings in favour of the original claimant. The deceased was traveling with the goods i.e. cattle in the tempo along with his engaged employee and therefore, the arguments made by the Insurance Company was turned down by the learned Tribunal and not accepted. The Insurance Company held liable while deciding the impugned claim petitions. It is observed by this Court in a case of Oriental Insurance Company Limited Vs. Galbiben Dosajibhai Manjibhai reported in 2009 GLHEL (High Court) 221029 that, though the accident was occurred after the amendment, the liability of the Insurance Company was upheld by this Court. That, no different view taken by this Court. It is further observed in the case of Anu Bhanvara Etc. Vs. IFFCO Tokio General Insurance Company Limited reported in AIR 2019 SC Page-3934 and other unreported decision, considering the peculiar facts of the case, that the accident took place in 1996 and direction should 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. That the claimant cannot be compelled to struggle further for recovery of the amount.
9. In view of the above, I am of the view that the present appeals are required to be allowed. That in the instance case also, the Insurance Company is directed to pay the compensation to the claimants and subsequently recover from the driver and owner of the vehicle in question.Page 7 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022
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10. Having considering the facts of the case and perusing the records of the Tribunal, this Court would like to refer the complaint produced at Exhibit-28 registered by the injured Latifsha Bhachalsha Shaikh and the averments made in the same by the complainant. This complaint was lodged at Taluka Police Station, Bhuj on 24.04.1996. As per the averments made in the complaint, he himself along with the deceased and one another persons returning from the Hajipir after purchasing the cattle i.e. sheep and goats they have hired the tempo of the ownership of the opponent No.2 and the said tempo was driven by the opponent No. 1 and insured by the opponent No. 3. While they were reached near the air- force station at Bhuj, the driver of tempo driving the vehicle in rash and negligent manner and loss control over the vehicle and turned turtled and persons sitting in the tempo were sustained injuries and due to that the deceased was died and the complainant and the other witness got injured in the accident. They were shifted to the hospital for the further treatment. Exhibit-29 is the panchnama of place of accident. It clearly reveals from the fact that, the grass found in the tempo, one sheep was found dead in the tempo and surrounding area of place of accident, on the road, the bloodstains were found. The permit of goods carriage at Exhibit-32 is valid up to 29.08.1996, Exhibit-33 is the cover note of insurance policy, it is also valid for a period from 06.05.1995 to 05.05.1996. It was undisputed fact that the motor vehicle involved in the accident was goods vehicle. As per the complaint, the deceased after purchasing goods from Hajipir was returning to his home along with his attendants and labourers and they are owner of the sheep and goats. It is submission of the Insurance Company that the policy clearly provides use of carrying passengers in the vehicle as except the employees not exceeding six in numbers coming under the purview of the Workmen Compensation Act) use, only for carriage of goods within the meaning of the Motor Vehicles Act. From this condition it cannot be said that any passenger was permitted to travel in the goods vehicle. However, the case of the claimants is accepted that they were traveling as an owner of the goods, the condition imposed by the Insurance Company would not permit to travel any passengers except employees.
11. Considering the fact that the Insurance Company was not held liable as per the provision of Section 147 and 149 of the Motor Vehicles Act and the impugned judgment and award would require to be modified.
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12. An order of pay and recovery of the amount of compensation can be passed against the Insurance Company by exercising the powers under Article 142 of the Constitution of India. This Court, in First Appeal No. 4149 of 2009 and 4150 of 2009 has taken a view relying upon the decision rendered in first appeal that the direction to pay the amount first and then to recover such amount can only be passed by the Hon'ble Apex Court exercising the powers conferred under Article 142 of the Constitution of India to do the complete justice. That pay and recovery cannot be passed by any Court or Tribunal. Thus, it is clear that the pay and recovery order can only be passed by the Hon'ble Apex Court exercising the power under Article 142 of the Constitution of India and no other Court or Tribunal including the High Court can pass such order. Considering the view taken by this Court in different cases, no order of pay and recover can be passed against the appellant as admittedly, the respondents - claimants were traveling as an owner of the goods, in other words as gratuitous passengers.
13. In the case of National Insurance Company Limited Vs. Ratani and Ors. rendered in Civil Application No. 7399 of 2008 the victim of the accident was traveling in the truck as a gratuitous passenger and therefore, the Apex Court viewed that the Insurance Company would not be liable to pay the compensation to the claimants. The effect of the provisions contained in Section 147 with respect to the persons other than the owner of the goods or his authorized representative would remain in the same. Although the owner of the goods or his authorized representative would now be covered under the policy of insurance company and in respect of goods vehicle, it was never the intention of the legislator to provide that the liability of the insurer with respect to the passengers as especially gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into nor was any premium paid to the extent of benefit of insurance to such category of people. Therefore, in the facts and circumstances of the present case, this Court has no hesitation to hold that the claimants were traveling in the tempo as gratuitous passengers and in that view of the matter the appellant herein would not be liable to pay an amount of compensation.
14. In view of the aforesaid observation and discussion, the present appeals succeeds and are allowed accordingly. The impugned judgment and award passed by the learned Page 9 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022 C/FA/4774/2006 JUDGMENT DATED: 07/10/2022 Tribunal is hereby modified to the extent as aforesaid and appellant-Insurance Company is hereby exonerated from paying the compensation to the original claimants, holding liability to pay the compensation of the original opponent No. 1 and 2 only. However, it is clarified that if any amount is withdrawn by the claimants from the Tribunal out of the amount deposited by the appellant-Insurance Company, shall not be recovered from the claimants. The rest of the part of the impugned judgment and award of the Tribunal shall stand satisfied and the amount, which is paid to the claimants at the first instance shall not be recovered from the claimants. It is open for the Insurance Company to recover the amount from the driver and owner of the vehicle in accordance with law. The impugned judgment and award of the Tribunal shall stand modified to the extent and in the terms as directed herein above. Record and proceedings be sent back to the concerned Court, forthwith. The rest of the part of the impugned judgment and award is unaltered.
10. In view of the above facts and circumstances of the case and settled legal position, the present appeals succeed and are allowed in part accordingly. The impugned judgment and award passed by the learned Tribunal is hereby modified to the extent as aforesaid and appellant-Insurance Company is hereby exonerated from paying the compensation to the original claimants, holding liability to pay the compensation of the original opponents No. 1 and 2 only. However, it is clarified that if any amount is withdrawn by the claimants from the Tribunal out of the amount deposited by the appellant-Insurance Company, shall not be recovered from the claimants. The rest of the part of the impugned judgment and award of the Tribunal Page 10 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022 C/FA/4774/2006 JUDGMENT DATED: 07/10/2022 shall stand satisfied and the amount, which is paid to the claimants at the first instance shall not be recovered from the claimants. It is open for the Insurance Company to recover the amount from the driver and owner of the vehicle in accordance with law. The impugned judgment and award of the Tribunal shall stand modified to the extent and in the terms as directed herein above. Record and proceedings be sent back to the concerned Court, forthwith. The rest of the part of the impugned judgment and award is unaltered.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 11 of 11 Downloaded on : Sun Dec 25 03:28:30 IST 2022