Gujarat High Court
Hdfc Ergo General Insurance Co. Ltd vs Kishorbhai Ramjibhai Kalariya on 7 February, 2025
NEUTRAL CITATION
C/FA/245/2025 ORDER DATED: 07/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 245 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 245 of 2025
==========================================================
HDFC ERGO GENERAL INSURANCE CO. LTD.
Versus
KISHORBHAI RAMJIBHAI KALARIYA & ORS.
==========================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/02/2025
ORAL ORDER
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 18.04.2024 passed by the Motor Accident Claims Tribunal, Morbi in Motor Accident Claim Petition No.7 of 2020.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 28.10.2019, deceased Meet was going from Morbi to Lajjai by driving Car No.GJ-36-L-5371 of grandfather of his friend and when he reached the place of accident, construction work of bridge was going on and deceased took turn and due to that car turned turtle. As a result, the accident took place and deceased sustained severe injuries and succumbed to the injuries.
Therefore, offence to that effect is registered before the Tankara Page 1 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025 NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined Police Station vide FIR being I-C.R.No.64 of 2019. The legal heirs of the deceased have filed aforestated claim petition under Section 163-A of the Motor Vehicle Act, 1988 claiming compensation of Rs.5,25,000/-. The learned Tribunal vide impugned judgment and award dated 18.04.2024 has granted compensation to the tune of Rs.5,00,000/-. Hence, the present appeal.
3. Learned advocate Ms.Pathak mainly argued that deceased Meet was not paid driver of the errant vehicle. He would further submit that deceased was driving the vehicle owned by grandfather of his friend and met with an accident and lost his life. Thus, it could not be said that deceased was a paid driver to meet with legal liability of paid driver of Rs.150/- taken up in the insurance policy. Therefore, he would submit that learned Tribunal erred in fastening liability upon the Insurance Company despite there being breach of terms and conditions of the policy. Upon above submissions, he would submit to admit this appeal.
4. On perusal of the impugned judgment and award, what could be noticed that legal heirs of deceased have filed claim petition under Section 163-A of the Motor Vehicle Act, 1988 for getting compensation of Rs.5,25,000/- on structured formula. That fact which could be noticed from impugned judgment is that on 28.10.2019, deceased Meet was going from Morbi to Lajjai by driving Car No.GJ-36-L-5371 owned by grandfather of his friend and when he reached the place of accident, construction work of bridge was going on and deceased took turn and due to that car was capsized. As a result, the accident Page 2 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025 NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined took place and deceased sustained severe injuries and succumbed to the injuries. What could be gathered from the discussion made by the learned Tribunal under the head of liability is that it is believed by the learned Tribunal that Insurance Company has taken up premium of Rs.150/- for legal liability of paid driver. Upon such consideration, learned Tribunal fastened liability upon the Insurance Company.
5. Let me refer relevant discussion made by the learned Tribunal which is reproduced as under :
"(14) So far as liability is concerned, the learned advocate for opponent no. 2-Insurance Company has vehemently argued before the Tribunal that on the ground that policy of the offending offending vehicle Hyundai Car No.GJ-36L-5371 is a Private Car Policy-
Bundled policy and at the time of accident, driver of offending vehicle Hyundai Car is not an employee of owner of Hyundai car and he is also not a paid driver, the deceased was driving car of his friend Arjun's grand- father, Hyundai car, and hence, there is a breach of terms and conditions of Insurance policy of offending vehicle Hyundai car i.e. deceased is not entitled to get any amount of compensation. L.A. for the opponent no.2 has further contended that deceased/Meet i.e. driver of Hyundai Car met with an accident, as deceased stepped into the shoe of the owner claim for his death cannot be considered as claim of third party. Under such circumstances, this claim petition is not tenable at law against the insurance co. i.e. opponent no.2. In support of his arguments L.A. for the opponent no.2 has submitted his written arguments at Exh.41, which is perused by this Tribunal. In support of his defence, L.A. for the opponent no.2 has relied upon the following case- laws;
(1) Special Civil Application No.15533/2016, decided on 08/12/2016- Bajaj Alliance General Insurance Co. Ltd. V/s. Jitendrabhai Thakarsibhai Vadhaiya, Guj.H.C..
Page 3 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined (2) 2017 ACJ 1800, Gujarat H.C. United India Insurance Co. Ltd. V/s. Legal heir of deceased Barot Bharatbhai Arvindbhai & Anr. Above, both scited case-laws are perused by this Tribunal.
(15) The applicant - Kishorbhai Ramjibhai Kalariya has produced his affidavit in support of his claim vide Exh.22, wherein he contended that at the time of accident, his deceased son Meet was doing job as a driver of car no.GJ-36L-5371, which is of grandfather of Arjubhai, who is friends of deceased Meet. The L.A. for the opponent no.1 had taken cross-examination of the applicant. In his cross-examination he admitted that at the time of accident his deceased son was doing job as a driver in the car of Hamirbhai Rajabhai and he was paying salary thereof. So, not only that in examination- in-chief of applicant, but in crossexamination of applicant by the opponent no.1, also it is proved that at the time of accident deceased Meet was a driver of offending vehicle Hyundai Car of Hamirbhai Rajabhai.
(16) As against this, L.A. for the applicants has argued before the Tribunal that there is no any breach of terms and conditions of Insurance Policy of offending vehicles Hyundai Car No.GJ-36L5371. The insured of Hyundai Car i.e. owner of Car has paid extra premium for legal liability to paid driver of Rs.150/-. He further argued before the Tribunal that owner of the Hyundai car is not examined by the Insurance Co. The L.A. for the applicants has also argued that at the time of accident, policy of offending vehicle was in force, and hence, insurance Co. is liable to pay amount of compensation to the applicants. Under the above facts and circumstances, Insurance Co. cannot escape from its liability to pay amount of compensation to the applicants."
6. In identical fact situation, this Court in case of Bajaj Allianz General Insurance Company Limited Vs. Batuksinh Fatehsinh Jadeja Since Decd. Thru Heirs and others, being First Appeal No.5362 of 2008, has held as under :
Page 4 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined "9. It is apparent that premium of Rs.25/- has been charged towards the legal liability of the driver. The driver has been defined in the policy itself which reads thus:
"DRIVER: Any person including the insured Provided that a person driving holds an effective driving licence at the time of the accident and is hot disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989."
10. The definition which the appellant has itself given in the policy start with the word "any person including the insured". The use of the word "including" in the definition shows the nature as inclusive definition. It does not de-mark the nature and status of the driver. The driver may be real brother of the owner of the vehicle; but condition is that he should possess the effective driving licence on the date of road accident to fasten of the liability on the insurance company. The licence of the deceased was produced at Exh.43 which shows that he was possessing LMV licence upto the period 07/11/2006 whilst the accident took place on 15/06/2005. Thus, admittedly, on the date of road accident he was authorized to drive the LMV including the Maruti Car.
11. In Road Traffic Act, 1988, ap1 applicable in UK but the term "driver" has been defined as.
"driver", where a separate person acts as a steersman of a motor vehicle, includes (except for the purposes of section 1 of this Act) that person as well as any other person engaged in the driving of the vehicle, and "drive" is to be interpreted accordingly,"
12. In Black's Law Dictionary, the term driver is defined as under:
"driver. A person who steers and propels a vehicle."Page 5 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025
NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined
13. In Shorter Oxford English Dictionary, Deluxe edition, the term driver defines as under:
"driver A person who drives a vehicle."
14. Section 2(9) of the Motor Vehicles Act, 1988 provides the definition of driver as under:
"driver" includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle;"
15. Thus, from the above, it is clear that the person who act as steered man of the drawn vehicle or the person who propel the vehicle and sit on the steering as driver includes within the meaning of driver. Therefore, the submission of learned advocate for the appellant that deceased cannot be said to be driver has no legs to stand.
16. Another submissions of learned advocate for the appellant that deceased being brother of the owner of the errant car stepped into the shoes of the owner; hence not entitled to claim compensation. In regard to this submission and for that purpose let refer to the definition of "owner" as prescribed in Section 2(30) of the MV Act.
"owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;"
17. On plain reading of the above provision, abundantly it would be clear that a person in whose name the vehicle stands registered is the person who can be said to be owner of the vehicle. Any other reading of the term "owner" and term "driver" would defeat purpose of the legislative intent. Merely, because the deceased was real Page 6 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025 NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined brother of the owner of the maruti car and driving it at the relevant time could not be treated him as owner of the vehicle. The driver means the person who propels the vehicle and in the present case the deceased was propelling the vehicle at the relevant time and was sitting on the steering and thus he should be treated as driver. Admittedly, the owner who is respondent no.4, his name stands in the record of the RTO as owner of the vehicle involved in the road accident. This Court fails to understand as to under which proportion learned advocate for the appellant submitting that since the deceased was riding the car owned by his brother, he has stepped into the shoes of the owner. Such an argument on the part of learned advocate for the appellant is completely in contrast to the legal definition of "driver" and "owner" and therefore cannot be sustained in the eye of law.
18. In Valiben Laxmanbhai Thakore (Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) vs. Kandla Dock Labour Board [2022 (1) GLR 440], three Judge Bench of this Court has held that in paragraph 13 and 15 as under:
"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium Page 7 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025 NEUTRAL CITATION C/FA/245/2025 ORDER DATED: 07/02/2025 undefined is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles.
xxx xxx xxx
15. In our opinion, by accepting additional premium, the Insurance Company indemnifies the owners for paid Driver and / or Conductor and risk of Driver / Conductor is covered under it. Upon death or injury caused to the paid Driver and / or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the observations made by the Division Bench in the case of Saberabibi Hisammiya Umarvmiya & Anr (supra) lays down the correct law. Reference is thus, red accordingly."
7. In view of above, since Insurance Company has taken up premium for legal liability of the driver, Insurance Company cannot escape from the liability to pay the compensation. Since the appeal deserves no merit at the admission stage, it is dismissed in limine at admission stage under Order 41 Rule 11 of Code of Civil Procedure, 1908. Consequently, connected Civil Application does not survive and it also stands disposed of.
(J. C. DOSHI, J) GAURAV J THAKER Page 8 of 8 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:42 IST 2025