Gujarat High Court
National Insurance Company Limited vs Bhudarbhai Sartanbhai Katara on 22 June, 2022
C/FA/866/2014 JUDGMENT DATED: 22/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 866 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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 ?
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NATIONAL INSURANCE COMPANY LIMITED
Versus
BHUDARBHAI SARTANBHAI KATARA & 2 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MEHUL S SHAH(772) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/06/2022
ORAL JUDGMENT
1. The present First Appeal, 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 16.04.2013 passed by the Motor Accident Claims Tribunal (Aux.), Panchmahal at Godhra in Motor Accident Claim Petition No.286 of 2003, by which the Tribunal has awarded compensation of Rs.5,32,698/- with 9% per annum interest to the Page 1 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022 C/FA/866/2014 JUDGMENT DATED: 22/06/2022 claimants, holding Opponents i.e. driver, owner and insurance company liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 24.02.2002, the claimant was travelling in offending vehicle as labourer for doing agriculture labour work. The opponent No.1 - driver of the offending vehicle has driven the vehicle in rash and negligent manner, in excessive speed and has lost control over the vehicle and thereafter, tractor trolley turned turtle on the side of the road. As a result, accident occurred and the claimant and and other co-passengers sustained serious injuries and fracture injury as shown in column 6 of the applicant as well as shown in medical certificate. He was admitted in J.S. Chauhan Hospital, Devgadh Baria and treat as indoor patient for 15 days and thereafter, discharged. He reached to home but his urine problem came in knowledge and he was treated in private Hospital, Dahod for 8 days as indoor patient. After discharge, he was not survived, he was again admitted in S.S.G. Hospital at Baroda and treated as indoor patient from 26.07.2002 to 21.08.2002 and treated as indoor patient and still continues.
Rubber tube was put for passing urine. Due to injuries, he could not perform his normal avocation of life for long time. Due to injuries of abdomen and both legs, he is unable to walk. Therefore, the claim petition is filed by the claimant to get the compensation of Rs.5 lakhs with interest.
2.2 Notices were served to the opponents. Opponent Nos.1 and 2 have appeared and filed its written statement at Exh.42 by admitted the occurrence of accident and also claimant was Page 2 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022 C/FA/866/2014 JUDGMENT DATED: 22/06/2022 travelling as labourer and by denying the responsibility and negligence. Opponent No.3 - insurance company has filed its written statement at Exh.22 by disputing all the averments made by the claimant(s) in the claim petition and also disputed.
2.3 The Tribunal has framed the issues at Exh.11 The oral as well as documentary evidence, which is mentioned in: Para 8 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 the claim petition by awarding compensation as noted above.
2.4 Hence, the present appeal by the insurance company.
3. Learned advocate Mr. Vibhuti Nanavati for the appellant - insurance company has submitted that the Tribunal has committed gross error in considering the liability of the insurance company for payment of compensation as admittedly, the claimant was sitting on mudguard of the tractor as per oral evidence of the claimant, which is recorded at Exh.38 and the legal liability of the insurance company of tractor - trolley bearing registration No.GJ-20-B-696 is not in accordance with law. He has further submitted that Regulation 20 of the Rules of Road Regulation, 1989 also prescribes that no passenger can be carried in good carriage vehicle and therefore, he has submitted that the Tribunal has committed error in fastening the liability in the present appeal to the insurance company as the Tribunal has held all the opponents jointly and severally liable in its impugned judgment and award. 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) Page 3 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022 C/FA/866/2014 JUDGMENT DATED: 22/06/2022 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 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 Page 4 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022 C/FA/866/2014 JUDGMENT DATED: 22/06/2022 present appeal is required to be allowed on that count only.
4. Per contra, learned advocate Mr. Jenil Shah for learned advocate Mr. Mehul S. Shah for the claimant has submitted that the Tribunal has rightly found that it is the duty of the insurance company to prove its case and insurance company cannot pick and chose any word from the deposition of the claimant. He has further submitted that the Tribunal has found that the insurance policy of the tractor is valid and is in existence on the date of accident and considering the contents of the insurance policy, the Tribunal has rightly held all the tortfeasor(s) jointly and severally liable to pay the amount of compensation with interest. He has submitted that in view of submission of insurance company at the best, the person, who is already sitting on the mudguard, is claimant and as per the case of the insurance company and also considering the judgment of this Court in similar matter as well as considering the judgments of the Hon'ble Apex Court in the case of
(i) Anu Bhanvara Etc. (supra) (ii) National Insurance Company Ltd. Vs. Baljit Kaur & Ors. reported in 2004 ACJ 428, then also appropriate order of "Pay and Recover" can be passed but otherwise the claimant should not be suffered on such technical ground as practically it is a dispute between the owner of the vehicle and insured. He prays that this appeal should be dismissed as it is merit less meritless and if requires with appropriate direction may be given by this Court.
5.1 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 Page 5 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022 C/FA/866/2014 JUDGMENT DATED: 22/06/2022 Tribunal. It is the case of the insurance company before the Tribunal that the driver of the tractor-trolley is alone not liable for occurrence of accident and considering this submissions of learned advocate for the insurance company about the liability of payment, the Tribunal has considered the judgments of the Hon'ble M.P. High Court Court reported in 2011 (1) TAC 660 and 2011 (2) TAC 777, where the deceased was travelling on mudguard of the tractor-trolley, who fell down and it was held by M.P. High Court that the insurance company could not held liable to pay compensation but the Tribunal has rightly held the "evidence as a whole" by keeping in view the decision of the Hon'ble Apex Court in the case of Bhupender Sharma Vs. State of H.P. reported in 2004 (1) GLR 761 (SC) and further the Tribunal has considered the averments made in the claim petition at Exh.1 where in para 10 under the head brief particular of accident of claimant had mentioned, which was occurred on 24.02.2002, the claimant was travelling in offending tractor trolley as a labourer for doing agriculture labour work and this fact is supported by opponent Nos.1 and 2 in written statement filed at Exh.42 where in para 5 they have categorically admitted that the claimant was travelling as a labourer in tractor-trolley, which is owned by original opponent No.2 and therefore, by merely putting question that you were travelling on tractor and merely getting the reply in affirmative, insurance company cannot escape from its liability of payment of compensation without proving that there is breach of insurance policy, which insurance company has failed to prove by producing cogent and convincing evidence in view of specific defence of insurance company about the liability for payment of compensation and the accident is caused by insured vehicle is by Page 6 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022 C/FA/866/2014 JUDGMENT DATED: 22/06/2022 looking to the finding of fact which is supported by copy of claim petition as well as copy of written statement, which is filed by opponent Nos.1 and 2, it is found that the claimant was travelling as a labourer in the tractor - trolley and therefore, insurance company cannot escape from its liability to pay the amount of compensation. The judgment cited by insurance company is not helpful to appellant in abovementioned facts of the present case. Therefore, I found that there is no merit in the contention raised by learned advocate for the insurance company for exonerating the insurance company from its liability to pay the amount of compensation and I found that no illegality or infirmity is committed in the findings given by the Tribunal.
6. In view of aforesaid discussion, following order is passed.
6.1 The present appeal is dismissed, with no order as to costs.
6.2 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, after proper verification and after following due procedure.
6.3 Thereafter, it is open for the appellant - insurance company to recover the amount of compensation from the other tortfeasor(s), in accordance with law.
6.4 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 7 of 7 Downloaded on : Sat Dec 24 19:22:09 IST 2022