Gujarat High Court
Heris Of Deceased Akbar Sulemanbhai ... vs Sureshbhai Karnabhai Ragiya on 2 July, 2024
NEUTRAL CITATION
C/FA/3298/2010 ORDER DATED: 02/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3298 of 2010
With
R/FIRST APPEAL NO. 3299 of 2010
With
R/FIRST APPEAL NO. 3300 of 2010
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HERIS OF DECEASED AKBAR SULEMANBHAI MIYANA, MUMTAZBEN
WD/O & ORS.
Versus
SURESHBHAI KARNABHAI RAGIYA & ANR.
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Appearance:
MR HRIDAY BUCH(2372) for the Appellant(s) No. 1,2,3,4,5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/07/2024
ORAL ORDER
1. Since the prayers and issues involved in the present petitions are identical in nature, which are arising out of the same common judgment, hence, at the request of learned advocates for the parties, the matters are taken up for final consideration and First Appeal No.3298 of 2010 is considered as lead matter and the facts are taken from First Appeal No.3298 of 2010. Therefore, all the matters are heard together.
2. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant/s - claimant/ Page 1 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined s, being aggrieved and dissatisfied with the judgment and award dated 27.07.2010 passed by the Motor Accident Claims Tribunal (Aux.), Fast Tract Court No.3, Morbi in Motor Accident Claim Petition Nos.149 of 2005, 150 of 2005 and 151 of 2005, by which the Tribunal has awarded compensation of Rs.2,25,500/-, Rs.2,20,500/- and Rs.2,20,500/- with 7.5% per annum interest to the claimant/s, holding Opponent No.1 i.e. driver liable, jointly and severally.
3. The facts of the present appeal are as under :
3.1 On 18.11.2005, the deceased along with other 15 to 17 labourers were travelling in a Matador vehicle, bearing Regn.
No. GJ-3-X-3380 towards a construction site along with the instruments of construction for the purpose of constructing a slab, the driver of the said Matador, lost control over the vehicle and got turtled. Due to the accident, the deceased and two other masons died. The said tempo was owned by the present respondent No.1 and the respondent No.2 was the insurer on the date of the accident.
3.2 Notices were served to the opponents. Opponent No.1 did not chose to appear. Opponent No.2 - insurance company has filed its written statement at Exh.11 by disputing all the averments made by the claimant in the claim petition and Page 2 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined also disputed the liability.
3.3 The Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the 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.
3.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant/s for enhancement. 4.1 Learned advocate for the appellant has submitted that the Tribunal has passed the impugned award without appreciating the facts and circumstances of the case, pleadings of the parties, evidence on record, provisions of law and settled legal position by overlooking the oral and documentary evidence on record. The first documents in the form of FIR registered with regard to the occurrence of the incident as well as the Panchnama of the scene of offence which proved and produced below Exhibits 41 and 42 during the proceedings of the claim petition clearly establishes the facts of happening of accident, negligence, etc. Thus, in view of the aforesaid documents, the fact that the deceased was a Page 3 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined mason - labourer and going along with the construction instruments at the construction site is established. Thus, the conclusion of the learned Tribunal that the deceased was an illegal passenger/gratuitous passenger, is completely false and contrary to the record. It is submitted that the Tribunal has misread the FIR as well as the panchnama, though, the learned Tribunal specifically refers to the said documents, still, overlooks the material part about the construction material including the huge concrete mixture machine at the place of incident and arrived at an erroneous and illegal conclusion that the deceased and others were gratuitous passengers. Thus, this finding suffers from the vice of misreading and misinterpreting of the documentary evidence. Hence, the impugned award deserves to be quashed and set aside, solely on this ground.
4.2 It is also submitted that the Tribunal has further erred in overlooking the oral evidence in this regard produced by the appellants, specific case has been put forwarded in the claim petition by the appellants that the deceased was travelling along with the construction material in the matador-tempo. Further, in the oral evidence, such fact is pleaded. In the cross-examination, the suggestion on behalf of respondent No.2 Insurance company has been specifically denied that the deceased was not travelling with the Page 4 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined construction material. Under the circumstances, there was no reason for the Tribunal to disbelieve such an oral evidence. Furthermore, the Tribunal further erred in dwelling into the fact as to whether the deceased was a gratuitous passenger or not as the appellants did not prefer the claim petition under Section 166 of the Act. The claim petition was filed under Section 163-A of the Act. It is the settled legal position that in view of the benevolent scheme of giving a statutory liability of the insurer in response to the terms and conditions of the policy and any other move to make the defence that the deceased was a gratuitous passenger, would not be available to the insurer for avoiding or defeating its liability, but to pay compensation in accordance with the Structured Formula.
4.3 Furthermore, it is submitted that without prejudice to the foregoing grounds, the learned Tribunal ought to have directed the respondent No.2 Insurance Company to satisfy the award by paying the amount of compensation and thereby permitted the respondent No.2-Insurance Company to recover the entire amount from respondent No.1 - owner or the driver. This course ought to have been adopted by the Tribunal, in the interest of justice so that the appellants could get proper compensation at least after five years of the unfortunate incident. Furthermore, the Tribunal has erred in Page 5 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined disbelieving the amount of the income of the deceased at Rs. 3,000/- per month. The deceased was a mason-labourer. Thus, even in 2005, a mason would be easily earning an amount of Rs.3,000/- per month. Furthermore, the Tribunal has erred in applying the multiplier. Undisputedly, looking to the age of the deceased, the multiplier of 17 or 18 ought to have been applied in view of the Second Schedule of the Act. However, the multiplier of only 15 is applied which substantially reduces the amount of compensation. Furthermore, it is submitted that the Tribunal has failed in reducing the 1/3rd amount from the income without any basis. Looking to the fact that the deceased is belonging to poor strata of the society and in the minimum income, the deceased would have never spent 1/3rd of the income for himself. Therefore, this reduction is also excessive.
4.4 He has relied upon the decision of this Court in (i) First Appeal No.2027 of 2011 dated 20.06.2017, more particularly, paragraphs 2 and 11 are relevant (ii) First Appeal No.521 of 2016 dated 24.09.2018, paragraph 64 is relevant, and (iii) First Appeal No.2668 of 2019 dated 29.09.2023, more particularly, paragraphs 16 and 17 are relevant.
4.5 Therefore, it is submitted that even otherwise, the Page 6 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined impugned judgment and award passed by the learned Tribunal is erroneous, perverse and contrary to the evidence on record. Additionally, learned advocate for the appellant has fairly submitted at this stage that since the application is filed before the Tribunal under Section 163-A, he is not in a position to press point of quantum to any further extent and, therefore, it is submitted that in view of the aforesaid facts and circumstances as well as the grounds mentioned here-in- above, the present appeal filed by the appellants may be allowed and the impugned award may kindly be interfered with.
5.1 Per contra, learned advocate for the respondent No.2 - insurance company has submitted that thought Co-ordinate Bench of this Court has in First Appeal No.2027 of 2011, which is arising from the same matter, decided the matter, that decision will not cause any prejudice to the rights and contentions of the present appellants. Furthermore, it is submitted that the appellants have relied on the count of principle of res-judicata and has submitted that this principle is applicable to the facts of the present case. Mr. Nanavati has also submitted that the contention of the appellants is misconceived as the facts of that case are different from the averments made in the claim petition of the respective claim petitions. In the present case, the averments is that the Page 7 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined passengers were also travelling as labourer in the aforesaid matter, and in that case, the Co-ordinate Bench of this Court has in First Appeal No.2027 of 2011 has decided by affirming the decision of the Tribunal and in that case, the case of the claimant was that the claimant was travelling along with goods in said vehicle for carrying out construction work. Furthermore, it is submitted that the facts remain that in Metador, more than 15 persons were travelling and the facts of the present case clearly indicates that insurance company is not liable to pay any amount and even order of pay and recover cannot be passed against the insurance company, though in the claim petitions, the Tribunal has awarded Rs.2,25,500/-, Rs.2,20,500/- and Rs.2,20,500/- with 7.5% per annum interest to the claimant/s and odd amount, which are directed to be recovered from the opponent No.1 and insurance company is exonerated by considering various judgments of the Hon'ble Apex Court.
5.2 He has drawn attention of this Court towards para 22 of the impugned judgment and award, whereby the insurance company has relied upon the decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd. vs. Rattani and others reported in 2009 ACJ 925, as well as National Insurance Co. Ltd vs Cholleti Bharatamma & Ors. reported in 2007 SAR (Civil) 921, and also referred to Sections 147 Page 8 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined and 149 of the Motor Vehicles Act and has submitted that the Tribunal has rightly found that 15 persons cannot travel as a labourer, and can be considered as travelling as unauthorized passenger travelling in goods vehicle. Therefore, it is submitted that by considering Section 147 and 149 of the Motor Vehicles Act, the risk is not required to be considered. He has relied on the decision of the Hon'ble Apex Court in the case of Sanjeev Kumar Samrat vs. National Insurance Company Ltd. reported in AIR 2013 SC 1125, more particularly, paras 10, 24 and 25 are relevant. In view of above, he has submitted that appeal lacks merits as the Tribunal has rightly exonerated the insurance company from its liability.
6.1 I have considered the rival submissions made at the bar. I have gone through the impugned judgment and award. I have also perused the judgments cited at the bar by the respective parties. It is necessary to consider that it is undisputed fact that at the time accident, there were 15 persons travelling in the goods vehicle. The case of the claimant/s is that they were travelling as labourer/s for the construction work along with the material of construction, which is also found in metador. Two different Tribunals have taken two different views in two sets of claim petitions which are arising out of same accident. In one claim petition, one Page 9 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined Tribunal has allowed the claim petition by exonerating the insurance company from the liability, and against which the present appeal has been preferred. In other claim petition, the other Tribunal has fasten the liability on the insurance company along with the other tror-feasor, jointly and severally, and against that, the insurance company has preferred First Appeal No.2027 of 2011, which was decided by the Co-ordinate Bench of this Court vide judgment and order dated 20.06.2011. It is relevant to refer paragraphs 3, 5 to 7, and 9 to 12 of the judgment, as under:
"3. The appellantInsurance Company by way of present appeal has interalia contended that the claimant was travelling in a goods vehicle as illegal passenger. It is further contended that the the learned Tribunal has wrongly fastened the liability upon the appellantInsurance Company and the learned Tribunal has completely overlooked the fact that out of the same accident, some other petitions being MACP No.149 of 2005 to 159 of 2005 were filed and in that petitions, the very Tribunal recorded finding that the said claimants were gratuitous passengers in the goods vehicle and the appellant Insurance Company was exonerated in the said claim petitions. It is further contented that the very Tribunal has recorded contrary finding arising from the same accident. It is further contended that the vehicle in question was admittedly goods vehicle and was having capacity of carrying two passengers only, whereas several Page 10 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined passengers were travelling upon the said goods vehicle which resulted in breach of terms and conditions of the insurance policy and therefore, Insurance Company could not have been held liable to pay compensation.
5. Mr.Anal Shah, learned advocate appearing for the appellantInsurance Company has reiterated the facts and grounds urged in the memo of appeal and vehemently contended that the complainant and 15 other persons were travelling in the goods vehicle and three different claim petitions were filed before the very Tribunal and the same came to be dismissed holding that they were illegal passengers. However, contrary findings are recorded in present claim petition which requires to be reversed as such. The learned Tribunal could have recorded that the present respondent injured were travelling as an illegal passenger as such. To buttress his point, the Learned advocate for the applicant has relied upon the judgments of Hon'ble Apex Court in the cases of National Insurance Company Ltd. vs. Cholleti Bharatamma and others, reported in (2008) 1 SCC 423 and National Insurance Company Ltd. vs. Savitri Devi and others, reported in (2013) 11 SCC 554.
6. In the case of Cholleti Bharatamma (supra), the Hon'ble Supreme Court has held in para 8 and 9, as under:
"8.The Act does not contemplate that a goods carriage Page 11 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative.
19.It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle."
7. In the case of National Insurance Company Versus Savitri Devi and Others reported in (2003) 11 SCC 554, the Hon'ble Supreme Court has in para 5, 9 and 12, held as under:
"5.In the light of this, the Claims Tribunal awarded compensation to the claimants and thereby holding the appellant Insurance Company liable to pay the compensation to them but liability of the appellant Insurance Company in each case was fixed only to Rs.70,000/ "6.The specific case of the claimants was that the barat was being taken in the said open truck on 12.11.1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy.
12.In the light of the aforesaid judgment, we have no doubt in our minds that the impugned judgment and order of the learned Single Judge dated 28.7.2005 cannot be sustained. The same is hereby set aside and quashed. No liability can be fastened on the Page 12 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined appellant Insurance Company. The appeals of the appellant Insurance Company are allowed to this extent."
9. Per contra, Mr.Patel, learned advocate for the respondentoriginal claimant has submitted that in fact, MACP No.149 of 2005 to MACP No.159 of 2005 as well as present claim petition are different. In other claim petitions, averments were made that the passengers were travelling as labourer upon the aforesaid Matador, whereas, in the present claim petition, it is pleaded that the claimant was travelling along with goods in the said vehicle for carrying out construction work and therefore, the learned Tribunal after appreciating documentary as well as oral evidence on record has rightly recorded the finding which may not be disturbed as such.
10. As regards to the decision relied upon by the learned advocate for the appellant, it is noticed that the ratio laid down in both the judgment relied upon by the learned advocate for the appellant is taken into consideration, the fact that emerges out from the present appeal is that the injured were travelling upon the aforesaid goods vehicle as owner of goods. Moreover, the decision of this Court in First Appeal No.2673 of 2011 relates to interim awards passed by the learned Tribunal, wherein the vehicle involved in the accident was having "act only" policy. Therefore, risk of the occupant over such vehicle is not covered in view of the decision of the Hon'ble Supreme Court in the case of Page 13 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined Bhagyalaxmi & Others Vs. United Insurance Corporation Ltd., reported in (2009) 7 SCC 148 and United India Insurance Company Ltd. Vs. Tilaksingh, reported in (2006) 4 SCC 404 and therefore, the liability could not have been fastened upon the Insurance Company. The facts of present appeal and the decision of this Court relied upon by the learned advocate for the appellant are different.
11. Having heard the learned counsel for the respective parties and having perused the judgment and award passed by the learned Tribunal, the claimant has pleaded that he was travelling along with tools of construction work for carrying out construction and that fact was proved during the course of depositions and testimonies and even it is recorded by the learned Tribunal that the injuredclaimant was travelling upon the said vehicle along with goods and that fact is also getting corroboration from other decisions produced before this Court and the goods relating to the construction work was also found and in that view of the matter, it becomes clear that he was travelling along with goods and that finding is recorded by the learned Tribunal. Therefore, the finding recorded by the learned Tribunal is in accordance with evidence available on record which calls for no interference.
12. In view of the above stated reasons, this appeal is dismissed. R & P be sent back to the learned Tribunal forthwith. No order as to costs." Page 14 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined It transpires that this Court has also dismissed the appeal of the insurance company in First Appeal No.2027 of 2011. There is no dispute about the fact that all the passengers were travelling in goods vehicles. In one set of the claim petition, the Tribunal has fastened the liability on the insurance company and in the present set of claim petition, the Tribunal has not fastended the liability on the insurance company. Thereafter, the insurance company has challenged that order by preferring First Appeal No.2027 of 2011, which was dismissed. On inquiry during the course of argument, learned advocate for the respondent No.2 - insurance company has fairly submitted that that judgment and order dated 20.06.2011 passed by the Co-ordinate Bench of this Court in First Appeal No.2027 of 2011 is not challenged any further before the Hon'ble Apex Court. Therefore, it is evident that the insurance company has accepted that order. The finding of that order is also required to be considered as the facts of every claimant/s are almost similar and the common factor is that they were travelling in goods vehicle and, therefore, it cannot be said that the insurance company cannot be held liable to pay the amount of compensation, in view of the fact that one Tribunal has already held against the insurance company by negativing the contentions raised by the insurance company and that was affirmed vide order dated 20.06.2011 passed by Page 15 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined the Co-ordinate Bench of this Court in First Appeal No.2027 of 2011. Therefore, to that extent, the principle of res-judicata cannot strictly be applicable, but at the same point of time, that is relevant consideration for deciding that whether the insurance company should be held liable or not. 6.2.1 Additionally, it is fruitful to refer the decision of this Court relied upon by learned advocate for the appellants in First Appeal No.2027 of 2011 dated 20.06.2017, more particularly, paragraphs 2 and 11 are relevant, as under:
"2. The brief facts of the case are that the accident occurred on 18.11.2005 at 11:50 a.m. near Mandal Village under the jurisdiction of Morbi Police Stanton. At the time of accident, the claimant was going for santing (construction) work in the farm of Akbar Suleman Miya. He was travelling in the Madtador of the original opponent No.1 with equipment for santing (construction) work alongwith other labourers. At that time, the driver of said Matador bearing No.GJ3X3380 was driving his vehicle recklessly, endangering human life and the said Matador turned turtle and thereby caused the accident. A FIR bearing No.138/2005 for the offences punishable under Section 279, 337 and 338 of the Indian Penal Code and Section 177 and 184 of the Motor Vehicles Act was registered. The claimant suffered fracture on his left leg which caused permanent disability.Page 16 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
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11. Having heard the learned counsel for the respective parties and having perused the judgment and award passed by the learned Tribunal, the claimant has pleaded that he was travelling along with tools of construction work for carrying out construction and that fact was proved during the course of depositions and testimonies and even it is recorded by the learned Tribunal that the injuredclaimant was travelling upon the said vehicle along with goods and that fact is also getting corroboration from other decisions produced before this Court and the goods relating to the construction work was also found and in that view of the matter, it becomes clear that he was travelling along with goods and that finding is recorded by the learned Tribunal. Therefore, the finding recorded by the learned Tribunal is in accordance with evidence available on record which calls for no interference."
6.2.2 It is also fruitful to refer the decision of this Court relied upon by learned advocate for the appellants in First Appeal No.521 of 2016 dated 24.09.2018, paragraph 64 is relevant, as under:
"64. Therefore, considering the above discussion, I hold that the Insurance Company is certainly liable to compensate the occupant of the private vehicle irrespective of nature of policy because there is nothing like different type of policy Page 17 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined in the Statute and the liability of the Insurance Company is certainly statutory and, therefore, they cannot escape from such liability."
6.2.3 It is also fruitful to refer the decision of this Court relied upon by learned advocate for the appellants in First Appeal No.2668 of 2019 dated 29.09.2023, more particularly, paragraphs 16 and 17 are relevant, as under:
"16. The above Rule specifies that no person can be carried in the goods carriage, provided the owner or hirer or bonafide employee of the owner or hirer of the vehicle, carried free of charge. Even the Rule permits the police officer in uniform travelling on duty to be carried in goods vehicle. Thus, the Rule permits a bonafide employee of the owner to travel on the goods carriage. The 1st proviso to sub-Rule (1) therefore, does not deal with any seating capacity. The 2nd proviso deals with permissibly of total number of persons to be carried in the vehicles as noted. Further, the proviso to the sub-Rule shows that it would not be applicable in case where integral seating arrangements providing a reasonable comfortable seating space for each person has been made in the goods carriage for more than the number specified in the second proviso. In view of the proviso made in Rule 122, the sitting capacity would have no bearing to the Policy placed on record as the Rules permits the persons to travel in a good vehicle. As noted, the deceased was a bonafide employee of the owner and he was sitting beside the driver in the tractor.Page 18 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
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17. In view of the same and to the reasons given above, the observations of the learned Tribunal exonerating the Insurance Company would become erroneous on the face of the record in light of provisions of Rule 122 of the Gujarat Motor Vehicle Rules, 1989. Thus, this Court is of the view that the Insurance Company would be liable to pay the compensation amount."
6.3 Furthermore, it is relevant of refer the judgment of the Hon'ble Apex Court relied by learned advocate for the respondent in support of his submission in the case of Sanjeev Kumar Samrat (supra), more particularly, paras 10, 24 and 25 are relevant, as under:
"10. To appreciate the controversy, it is necessary to refer to certain statutory provisions. Section 146 of the Act provides for the necessity for injuries against third party risk. On a reading of the said provision, there can be no trace of doubt that the owner of the vehicle is statutorily obliged to obtain an insurance for the vehicle to cover the third party risk, apart from the exceptions which have been carved out in the said provision. Section 147 of the Act deals with requirements of policies and limits of liability. The relevant part of Section 147 (1) is reproduced below:-
"147. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-Page 19 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
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(a) is issued by a person who is an authorised insurer; or
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability."
24. It is worthy to note that sub-clause (i)(c) refers to an employee who is being carried in the vehicle covered by the policy. Such vehicle being a goods carriage, an employee has Page 20 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined to be covered by the statutory policy. On an apposite reading of Sections 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorised representative carried in a vehicle and an employee who is carried in the said vehicle. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the 1923 Act, it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorised agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy and to hold otherwise would tantamount to causing violence to the language employed in the Statute. Therefore, we conclude that the insurer would not be liable to indemnify the insured.
25. Presently, for the sake of completeness, we shall refer to the policy. The policy, exhibit R-2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language used in the policy reads as follows:- Page 21 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined "The Policy does not cover :
1. Use for organized racing, pace-making reliability trial or speed testing
2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle.
3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen's Compensation Act, 1923." On a bare reading of the aforesaid policy, there can be no iota of doubt that the policy relates to the insured and it covers six employees (other than the driver, not exceeding six in number) and it is statutory in nature. It neither covers any other category of person nor does it increase any further liability in relation to quantum."
6.4 There is no quarrel about the proposition of law laid down by the Hon'ble Apex Court in the facts of that case, but considering the subsequent judgments of the Hon'ble Apex Court, this Court as well as various High Courts, whereby the challenge has been made by the insurance company on similar contention, which is negatived and the said decisions are not carried further by the insurance company by challenging before the Apex Court, hence, the said decision is having binding effect to the present case and, therefore, the ratio of that judgment is also required to be considered in the facts of the present case. Therefore, it Page 22 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined cannot be said that the view taken by the Tribunal in present group of matters are correct view in the facts and circumstances of the present case. The present claim petitions are filed under Sections 163-A, which are subsequently considered as under Section 166 of the Motor Vehicles Act.
The contention raised by the parties are dealt with by the Tribunal, and the findings given by the another Tribunal in another group of petitions are contradictory to each other. Therefore, for the propriety and in the interest of justice also, the view taken by one Tribunal, which is affirmed vide judgment and order dated 20.06.2011 passed by the Co- ordinate Bench of this Court in First Appeal No.2027 of 2011 is required to be taken into consideration. Moreover, the judgments cited by learned advocate for the appellants are also helpful in the facts and circumstances of the present case. The insurance company cannot shrug off from its liability by resorting the provisions of Sections 147 and 149 of the Motor Vehicles Act in the facts and circumstances of the present case, whereby the specific case has been pleaded that they are travelling as a labourer in Metador for construction.
6.5 At this stage, it is fruitful to refer provisions of Sections 147 and 149 of the Motor Vehicles Act, as under:
"Section 147 in The Motor Vehicles Act, 1988:-Page 23 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
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147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place.
Explanation. - For the removal of doubts, it is hereby clarified that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Notwithstanding anything contained under any other law for the time being in force, for the purposes of third party insurance related to either death of a person or grievous hurt to a person, the Central Government shall prescribe a base premium and the liability of an insurer in relation to Page 24 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined such premium for an insurance policy under sub-section (1) in consultation with the Insurance Regulatory and Development Authority.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected, a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Notwithstanding anything contained in this Act, a policy of Insurance issued before the commencement of the Motor Vehicles (Amendment) Act, 2019 shall be continued on the existing terms under the contract and the provisions of this Act shall apply as if this Act had not been amended by the said Act.
(5) Where a cover note issued by the insurer under the provisions of this Chapter or the rules or regulations made thereunder is not followed by a policy of insurance within the specified time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority or to such other authority as the State Government may prescribe. (6) Notwithstanding anything contained in any other law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. Page 25 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined Section 149 in The Motor Vehicles Act, 1988:-
149. Settlement by insurance company and procedure therefor. - (1) The insurance company shall, upon receiving information of the accident, either from claimant or through accident information report or otherwise, designate an officer to settle the claims relating to such accident.
(2) An officer designated by the insurance company for processing the settlement of claim of compensation may make an offer to the claimant for settlement before the Claims Tribunal giving such details, within thirty days and after following such procedure as may be prescribed by the Central Government.
(3) If, the claimant to whom the offer is made under sub- ection (2), - (a) accepts such offer, - (i) the Claims Tribunal shall make a record of such settlement, and such claim shall be deemed to be settled by consent; and
(ii) the payment shall be made by the insurance company within a maximum period of thirty days from the date of receipt of such record of settlement;
(b) rejects such offer, a date of hearing shall be fixed by the Claims Tribunal to adjudicate such claim on merits." 6.6 In light of the above discussions and in the totality of the facts and circumstances of the present case, I am of the opinion that the impugned judgment and award dated 27.07.2010 passed by the Motor Accident Claims Tribunal (Aux.), Fast Tract Court No.3, Morbi in Motor Accident Claim Petition Nos.149 of 2005, 150 of 2005 and 151 of 2005 are Page 26 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024 NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined required to be interfered with to the aforesaid extent.
7. Accordingly, the present captioned First Appeals are allowed to the aforesaid extent.
8. The impugned judgment and award dated 27.07.2010 passed by the Motor Accident Claims Tribunal (Aux.), Fast Tract Court No.3, Morbi in Motor Accident Claim Petition Nos.149 of 2005, 150 of 2005 and 151 of 2005 are required to be interfered with by modifying to the extent that the findings regarding exonerating the insurance company from liability is erroneous.
9. Opponent Nos.1 and 2 i.e. owner and insurance company is liable jointly and severally liable to pay the amount of compensation in respective appeals.
10. The Insurance Company is directed to pay the entire awarded amount with the interest before the concerned Tribunal, within a period of six weeks from the date of receipt of this order in respective appeals. 7.4 The Tribunal shall do needful to disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimant, by account payee cheque, after proper verification and after following due procedure in respective appeals. Page 27 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024
NEUTRAL CITATION C/FA/3298/2010 ORDER DATED: 02/07/2024 undefined 7.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law in respective appeals.
7.6 Record and proceedings be sent back to the concerned Tribunal, forthwith in respective appeals.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 28 of 28 Downloaded on : Fri Jul 12 21:56:49 IST 2024