Gujarat High Court
Oriental Insurance Co Ltd vs Jamnaben Parshottam Patel on 16 February, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2209/2010 JUDGMENT DATED: 16/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2209 of 2010
With
R/FIRST APPEAL NO. 2210 of 2010
With
R/FIRST APPEAL NO. 2211 of 2010
With
R/FIRST APPEAL NO. 2212 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
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,
Versus
JAMNABEN PARSHOTTAM PATEL & 7 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR P P MAJMUDAR(5284) for the Defendant(s) No. 1
MR SP MAJMUDAR(3456) for the Defendant(s) No. 1
MR VIMAL A PUROHIT(5049) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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C/FA/2209/2010 JUDGMENT DATED: 16/02/2022
Date : 16/02/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the common judgment and award dated 08.01.2010 rendered by the Motor Accident Claims Tribunal No. 639 of 1998, MACP No. 640 of 1998, MACP No. 641 of 1998 and MACP No.660 of 1998, the insurance company has preferred these appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act').
2. Evidence was led in all the claim petitions and common issues were raised by the learned Tribunal and by common judgment and award dated 08.01.2010, the claim petitions were partly allowed against which four First Appeals are filed by the insurance company. All the appeals were heard together and are disposed of by this common judgment and order.
3. The following facts emerge from the record of the appeals -
3.1 That the accident took place on 02.03.1998 at about 8.15 pm between Barvala - Vallabhipur Highway Road near Panvi Village. The accident took place between Maruti car bearing registration no. GJ-1-PP- 2953 and a stationary truck. The FIR was lodged with the jurisdictional police station at exhibit 78A and four claim petitions were filed claiming compensation as under -
Page 2 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 MACP No.639/98 - Rs.25,50,000/- MACP No.640/98 - Rs. 5,00,000/- MACP No.641/98 - Rs. 5,00,000/- MACP No.660/98 - Rs.40,00,000/-
3.2 Oral as well as documentary evidences such as FIR at exhibit 78A, panchnama at exhibit 79 and other documents were relied upon before the Tribunal in each claim petitions such as -
MACP No. 639 of 1998 Affidavit of Jamnaben Parshottambhai Patel at exhibit 53, Birth certificate issued by Bandharda Primary School at exhibit 81, documentary evidence to prove income at exhibit 46, business assessment statement for the year 1997-98 at mark 46/9, certificate issued by Sarpanch, Piparva Gram Panchayat at mark 46/10, village form no. 7/12 for agriculture land situated at village Piparva survey nos. 228/3, 229, 230/2 at exhibits 82, 83 and 84, village form no. 8A at exhibit 85, agriculture income certificate issued by Sarpanch, Isadra Gram Panchayat at mark 46/15, village form no. 7/12 for the agriculture filed situated at Isadra village, Survey No. 26 at exhibit 86, village form no.6 regarding purchase of land by the claimant at village Isadra, Survey No. 27 at exhibit 87, village form no. 8A regarding ownership of land at village Isadra Survey no. 26 at exhibit 88, receipt regarding land revenue at exhibit 89, Letter written by Dr. Jarmarwala to the Ellisbridge Page 3 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 Police Station at mark 69/2, injury certificate issued by Dr. Jarmarwala at exhibit 70, disability certificate issued by Dr. Kishor Solanki at mark 20/7, disability certificate issued by Dr. Ashit Shah at mark 20/8, disability certificate issued by Dr. Manoj Tank at exhibit 56, Letter of Dr. Apurva Madia at mark 46/20, letter of Dr. Mukesh Patel, Vrundavan Neurosurgical hospital, Ahmedabad at mark 46/21, x- ray report by Dr. Narendra Patel, at mark 46/22, 46/24, bills for medicines at exhibit 74 and exhibit
57. MACP No. 640 of 1998 The claimant in this petition has deposed at exhibit
51. The birth date certificate issued by the Pipalva Primary School, Khambha at exhibit 38, Injury Certificate issued by Dr. Jarmarwala at exhibit 72, examination letter by Dr. Apurva Madia at mark 42/6, examination letter by Dr. Apurva Madia at mark 42/6, Letter of of Vrundavan Hospital, Ahmedabad at mark 42/7, report of Dr. Narendra Patel at exhibit 42/9/1, 42/9/3 and 42/9/4, report of diagnostic centre and research institute at mark 42/9/2, certificate of Vrundavan Hospital, Ahmedabad at mark 42/10, disability certificate at exhibit 58, bills of medicines at exhibit 75 and exhibit 59.
MACP No.641 of 1998 The claimant in this petition has deposed at exhibit
50. Certificate issued by proprietor of Monali Ladies Tailor, Ahmedabad at exhibit 63, deposition Page 4 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 of Mr. Kalyan Dudrejia Mathurdaws working in Monali Tailor at exhibit 62, injury certificate issued by Dr. Jarmarwala, at exhibit 71, certificate of Vrundavan Neurosurgical Hospital at makr 40/8, x-ray letter at mark 40/9 report f Dr. Narendra Patel at mark 40/10, examination certificate by Vrundavan Neurosurgical Hospital at mark 40/11, disability certificate at exhibit 60, bills of medicines at exhibit 76 and exhibit 61.
MACP No.660 of 1998 Deposition of Ghanshyambhai Dhirubhai Patel at exhibit 52, order below exhibit 32 deleting claimant no.1 and claimant no.3 as they have died during the pendency of the petition. Death certificate of Vilasben at exhibit 34, death certificate of Alpaben at exhibit 35, death certificate of Dhirubhai at exhibit 101, inquest panchnama at exhibit 99, PM note of deceased Dhirubhai at exhibit 100, IT return of deceased Dhirubhai for the year 1997-98 at mark 44/9, certificate issued by Sarpanch, Pipalva Gram Panchayat at mark 44/10, certificate issued by Talati-cum-Mantri of Pipalva Gram Panchayat at Mark 91/2, village form no. 7/12, abstract of 7/12, village form no. 8/A in the name of father of the deceased at exhibit 104, 105 and mark 44/14.
3.3 The Tribunal upon appreciating the evidence on record, came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the motor car. The Tribunal also Page 5 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 considered the panchnama in particular and came to the conclusion that the driver of the Maruti car bearing registration no. GJ-1-PP-2953 was negligent. As far as quantum is concerned, the evidence adduced in each claim petitions were individually considered and while partly allowing the claim petitions awarded compensation as under -
MACP No. 639 of 1998 Rs.5,40,000/- - Future loss of income Rs. 25,000/- - Pain, shock and suffering Rs. 10,000/- - attendant, transportation, rich diet Rs. 30,000/- - medical bills and hospital charges Rs. 15,000/- - actual loss of income
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Rs.6,20,000/-
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MACP No. 640 of 1998 Rs.1,72,800/- - Future loss of income Rs. 25,000/- - Pain, shock and suffering Rs. 10,000/- - attendant, transportation, rich diet Rs. 20,000/- - medical bills and hospital charges Rs. 4,500/- - actual loss of income
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Rs.2,32,000/-
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MACP No.641 of 1998 Rs.2,16,000/- - Future loss of income Rs. 25,000/- - Pain, shock and suffering Rs. 10,000/- - attendant, transportation, rich diet Rs. 40,000/- - medical bills and hospital charges Rs. 6,000/- - actual loss of income
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Rs.2,97,000/-
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Page 6 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 MACP No.660 of 1998 Rs.9,00,000/- - Loss of dependency benefit Rs. 20,000/- - conventional amount for loss of estate Rs. 2,500/- - Funeral expenses
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Rs.9,22,500/-
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Feeling aggrieved by the same, the present appeals are filed by the insurance company.
4. Heard Mr. Vibhuti Nanavati, learned advocate for the appellant in all the appeals and Mr. MTM Hakim, learned advocate with Mr.Kaushal Patel, learned advocate for Mr. S.P. Majmudar for the original claimants in all the appeals.
5. Mr. Nanavati, learned counsel appearing for the appellant contended that the Tribunal has failed to consider the important aspect as regards insurance policy. Referring the policy at exhibit 25 as well as the written arguments at exhibit 113, it was contended that the policy of the Maruti car which was a private car was 'Act only' policy and therefore, the risk of the occupants was not covered. Mr. Nanavati contended that the policy being an 'Act only' policy, and that too a private car, would not cover the risk of the occupants who sustained injuries and either succumbed to such injuries in the accident in question and therefore, the Tribunal has committed an error in holding the insurance company liable to satisfy the award. Mr. Nanavati contended Page 7 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 that referring to the policy at exhibit 25 as well as the written arguments at exhibit 113, Mr. Nanavati contended that as the premium for CSI to the tune of Rs.1 lakh for four occupants was paid, each of the occupants would be entitled to Rs. 1 Lakh. On the aforesaid ground, Mr. Nanavati contended that the impugned judgment and award is erroneous and the same deserves to be modified.
6. Mr. Nanavati has relied upon the Division Bench judgment of this court in First Appeal No. 3735 of 2009 as well as the judgment of the learned Single Judge in First Appeal No. 505 of 2015 to buttress his arguments. Referring to Section 147 of the Act, as it existed on the date of the accident, it was also contended by Mr. Nanavati that as the vehicle in question was a private car, even otherwise, the risk of the occupant, except the liability upto Rs.1 lakh, is not covered. Mr. Nanavati therefore contended that the appeals be allowed as prayed for.
7. Per contra, Mr. MTM Hakim, learned advocate appearing for the original claimants have opposed this appeal. Mr. Hakim candidly submitted that it is a matter of fact that the policy exhibit 25 is an Act only policy. However, according to Mr. Hakim, risk of the occupants is also covered. Mr. Hakim therefore submitted that the appeals being misconceived, deserves to be dismissed.
8. Mr. Hakim however raised a technical issue that the issue raised in these appeals was not raised in Page 8 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 the written statement at exhibit 16, it is raised for the first time in written arguments at exhibit
113.
9. No other or further submissions or contentions or grounds have been raised by the learned counsel appearing for the respective parties.
10. Upon re-appreciation of the evidence on record, it deserves to be noted that the insurance policy of the Maruti car involved in the accident was valid from 13.02.1998 to 12.02.1999 and the said policy was for private car (Zone A), policy A Act only. The policy also further indicates that the owner had paid premium for CSI upto Rs.1 lakh for four occupants. Thus, it is an admitted position that the policy of the vehicle involved in the accident, i.e., the Maruti car bearing registration no. GJ-1-PP-2953 is an 'Act only' policy and hence, the risk of the claimants who were occupants in the car would not be covered except to the limited liability of Rs. 1 lakh each as CSI premium is paid. To appreciate the aforesaid contention, it would be apt to refer to the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. (supra) in cases where the coverage was by an Act only policy, has observed thus -
"22. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was travelling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other Page 9 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 relative. In the sense of the term which is used in common parlance, she might not be even a passenger. In view of the terms of the contract of insurance, however, she would not be covered thereby.
23. It is not necessary for us to deal with large number of precedents operating in this behalf as the question appears to be covered by a few recent decisions of this Court. In United India Insurance Company Ltd. v. Serjerao & Ors. [2007 (13) SCALE 80], it was held as under:
"16....When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefor.
17. In a given case, the statutory liability of an insurance company, therefore,either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus,when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all.
18. Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been Page 10 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 substantiated, which is the basis for making an award.
19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter-X of the Act must as of necessity, in the event of non- compliance of directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to it liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be any award within the meaning of Section 173 of the Act."
It was furthermore held as under:
"6. So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007) 7 SCALE 753 and it was held that the Insurance Company has no liability...""
25. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle."
Similar view is taken by this Court in First Appeal No. 3735/09 with First Appeal No. 786 of 2009.
11. Again coming back to the case on hand, as the Page 11 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 policy is an 'Act only' policy with CSI cover limited to Rs. 1 lakh for four occupants, the appellant insurance company cannot be saddled with the liability as if it is a comprehensive policy. Thus, we hold that the insurance company is not liable to indemnify the award as awarded by the Tribunal, except to the limit of Rs. 1 lakh each. Even the technical issue raised by Mr. Hakim does not deserve any merits as the very backbone of the contention is, the policy in question and the said question can be considered by this Court in this appeal as well.
12. Considering the binding decisions of the Apex court as well as the judgment of this Court in First Appeal No. 3735 of 2009 and allied appeal, the Insurance Company cannot be held to be liable and stands exonerated. On the aforesaid grounds, the impugned judgment and award stands modified. The appellant insurance company shall pay Rs. 1 lakh in each case along with interest at the rate of 7.5% p.a. from the date of filing of the claim petition till its realisation. The Tribunal shall refund the additional amount, if any, deposited by the appellant insurance company in each of the appeal/claim petition forthwith. Record and proceedings be transmitted back to the Tribunal.
The Tribunal shall consider the order dated 28.10.2010 passed by this Court in Civil Application for stay in each appeal and shall refund the amount to the insurance company accordingly, taking into consideration the disbursement if any already made in Page 12 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022 C/FA/2209/2010 JUDGMENT DATED: 16/02/2022 favour of the original claimants. However, it is provided that if the amount paid is in excess than what is to be paid, the same shall not be recovered from the original claimants.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) BIJOY B. PILLAI Page 13 of 13 Downloaded on : Fri Feb 18 21:12:41 IST 2022