Gujarat High Court
United India Insurance Company Limited vs Shivaben Mafabhai Thakor & 7 on 22 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2131/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2131 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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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UNITED INDIA INSURANCE COMPANY LIMITED.....Appellant(s)
Versus
SHIVABEN MAFABHAI THAKOR & 7....Defendant(s)
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Appearance:
MR RATHIN P RAVAL, ADVOCATE for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1 2 , 4 , 7
SERVED BY RPAD (N) for the Defendant(s) No. 1,3,6,8
UNSERVEDEXPIRED (N) for the Defendant(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/09/2017
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment and award dated 30.09.2016 passed in MACP No.43/11 by Motor Accident Claims Tribunal (Main) Banaskantha at Palanpur, the present appeal is filed under section Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act".
2. The following facts reveal from the record of the appeal 2.1 That on 16.12.2010, deceased Mafabhai Mehabhai Thakor was travelling in jeep bearing registration No. GJ8V1095. The record also indicates that one Hakimsha was driving the said jeep and both were returning from Tharad. The accident took place near village Mesara when suddenly a blue bull (Nil Gai) came on the road and the driver of the jeep had to apply sudden brake because of which, he lost the control and dashed with the tree on the road side and because of which the deceased succumbed to the injuries on the spot.
The respondents claimants filed a petition under section 163A of the Act and claimed compensation of Rs.4,63,500/. On notice being issued, the insurance company appeared and filed its written statement at Exhibit 29. The respondents claimants examined one of the claimant at Exhibit 19 and also relied upon documentary evidence being Certified copy of complaint at Exhibit 20, Certified copy of panchnama at Exhibit 21, Certified copy of Inquest at Exhibit 20, Certified copy of PM Note at Exhibit 26, Copy of driving license at Exhibit 23 and Copy of RC Book at Exhibit 22. The Tribunal considering the FIR and panchnama, came to the conclusion that the accident had occurred and assessed the income of Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT the deceased at Rs.40,000/ per year and considering the age of the deceased as 35 years, awarded Rs.3,93,500/ along with 9% interest. Being aggrieved by the said award, the present appeal is filed.
3. The record indicates that respondent no.5 Samirsha Rahusha Juneja has expired and he is permitted to be deleted from the array of this appeal as respondents no.6 to 8, the other heirs of deceased respondent no.5 are already on record. The record further indicates that though served, none of the respondents have appeared. Thus, notice for final disposal was issued by this Court vide order dated 22.06.2017. The record also indicates that initially there was delay of 55 days in preferring this appeal for which the appellant had preferred an application for condonation of delay being CA No.3776/17. In the said application also, no one appeared for the claimants. The record also shows that the claimants have been served. Still however, no one appears. Record and Proceedings were called for. In light of the aforesaid facts, this Court had no option but to hear the learned counsel appearing for the appellant. Perused the Record & Proceedings.
4. Mr. Rathin Raval, learned counsel appearing for the appellant has contended as under
1) That the deceased was travelling as gratuitous passenger in the vehicle and even though specific contention is raised, the same is not dealt with by the Tribunal and therefore, the impugned Page 3 of 10 HC-NIC Page 3 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT judgment and award deserves to be quashed and set aside.
2) It was also contended that even as per the panchnama at Exhibit 21, no evidence is there on record to show that the deceased was carrying any goods.
3) It was contended that the owner himself was travelling in the vehicle without any goods and therefore, the deceased who was allegedly an employee is not required to travel in the vehicle as a representative of owner of the goods.
4) Mr. Raval further contended that in the claim petition itself and more particularly in para 7 thereof, the claimants have contended that the deceased was going with Hakimsha for household work. It is not even the case of the claimants that the deceased was travelling as a representative of owner of the goods.
5) It was contended that the owner himself was travelling in the vehicle without any goods. It was further contended that a specific contention has been raised in the written statement Exhibit 29, more particularly paras 10 to 12 by the insurance company that the deceased was travelling as a gratuitous passenger and therefore, the risk is not covered.
6) Mr. Raval further contended that considering the insurance policy, the said policy is an "Act only policy" and hence, the risk of the passenger is not covered and as the deceased was not Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT travelling as owner of the goods, he was merely a passenger who is not covered under the "Act only policy".
7) Mr. Raval has relied upon the judgment of the Apex Court in the case of General Manager, United India v. M. Laxmi reported in (2009) 17 SCC 301 and the judgment of this Court in First Appeal No.356 and 357/10 dated 27.08.2010 to buttress his argument.
8) Mr. Raval further contended that even in the crossexamination, the claimants have admitted that the deceased was not working as a labourer which is also noted by the Tribunal, however, the Tribunal has come to the erroneous conclusion that the insurance company is liable.
Based on aforesaid contentions therefore, it was contended that the appeal be allowed as prayed for.
5. Upon considering the averments made and on perusal of the Record & Proceedings and reappreciating the evidence on record, from the panchnama it cannot be culled out that the deceased was travelling with any goods. In para 7 of the claim petition filed before the Tribunal, the claimants have contended as under "That on 16.12.2010, the deceased and Hakimsha both persons had gone in jeep No. GJ8V1095 for household work to Tharad and were returning back home after the said work....."
(translated from Gujarati to English)
6. Therefore, from the record, it clearly appears that the deceased was travelling without any goods and Page 5 of 10 HC-NIC Page 5 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT the other evidence on record also shows including the crossexamination of the claimants establishes the fact that the deceased was not working as a labourer. Upon reappreciation of the aforesaid evidence therefore, it is established that the deceased was travelling as a gratuitous passenger.
7. The Apex Court in the case of General Manager, United India v. M. Laxmi (supra), has observed thus "4. Learned counsel for the appellant submitted that the High Court has misread the Circular of the Tariff Advisory Committee dated 2.6.1986. The same referred to compensation payable to pillion riders in case of comprehensive policy. The Clarification/Circular has no relevance so far as Act Policy Cases are concerned and it related to only Comprehensive Policy.
6. There is no dispute that the Circular dated 2.6.1986 refers to Comprehensive Policy. It categorically states that standard form for motorcycle should cover liability to pillion passengers in case of Comprehensive Policy. As noted by the MACT, the policy in the instant case was an Act Policy.
7. In New India Assurance Co. Ltd. v. Asha Rani and Ors. (2003 (2) SCC 223), it has been noted as follows:
"Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle".
Proviso ap pended thereto categorically states that compulsory cover age in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT Workmen's Compensation Act. It does not speak of any passenger in a "goods carriage".
In view of the changes in the relevant provisions in the 1988 Act visavis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provi sions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. Furthermore, subclause (i) of clause (b) of subsection (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas subclause (ii) thereof deals with liability which may be incurred by the owner of a vehicle 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."
8. In United India Assurance Co. Ltd., Shimla v. Tilak Singh and Ors. (2006 (4) SCC
404), it has been noted as follows:
"In our view, although the observations made in Asha Rani case (supra) were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appel lant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT cover the risk of death of or bodily injury to a gratuitous passenger.
9. In view of what has been stated by this Court in Asha Rani and Tilak Singh cases (supra), the order of the High Court is clearly unsustainable and is set aside and that of the MACT is restored."
The evidence on record also indicates that the policy was only "Act only policy" and therefore, the risk of the deceased who was travelling merely as a passenger is not covered.
8. This Court (Coram : R. R. Tripathi, J., as their Lordships then were) referring to the judgment of the Apex Court in the case of General Manager, United India Insurance Co. Ltd. (supra) has observed thus "2. The learned advocate Mr. Mazmudar appearing for the appellant Insurance Company contended that the policy of the vehicle involved in the accident Government vehicle was only Act Policy and he submitted that in light of the law laid down by the Hon'ble the Apex Court in the matter of General Manager, United India Insurance Co. Ltd. Vs M. Laxmi and others reported in 2009 ACJ 104, if policy is an Act Policy, the Insurance Company cannot be held liable for compensation to be paid to the employees who are travelling in the vehicle in question. The learned advocate for the appellant invited attention of the Court to the relevant part of the judgment, which reads as under:
8. In United India Insurance Co. Ltd.
v. Tilak Singh, 2006 ACJ 1441 (SC), it has been noted as follows:
Page 8 of 10HC-NIC Page 8 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT (21) In our view, althoug the observations made in Asha Rani's case, 2003 ACJ 1 (SC), were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of appellant insurance company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.
3. In light of the aforesaid submission, the Government authorities were asked to deposit the amount before the Tribunal. Today, the learned Assistant Government Pleader stated that the amount is deposited before this Court, which by a separate order is ordered to be transmitted to the Tribunal for its disbursement. That being so, nothing further survives in the First Appeals and, therefore, these First Appeals are taken up for final hearing at the joint request of the learned advocates for the parties.
4. The matter is covered by the decision of the Hon'ble the Supreme Court in the case of General Manager, United India Insurance Company Ltd. (supra), the First Appeals are allowed. The judgment and award is modified to the extent that the appellant United India Insurance Company is not liable to pay any compensation, instead of that, the Government Executive Engineer, Rajkot is held responsible, who has already deposited that amount."
9. It is also found from the record that even though specific contention has been raised, the same is not Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Oct 07 05:30:15 IST 2017 C/FA/2131/2017 JUDGMENT dealt with by the Tribunal. It is also not the case of the claimant that any extra premium is paid to cover the risk of the passenger and evidence on record does not disclose the same. Considering even the crossexamination of the claimants therefore, the deceased was not travelling in the vehicle in question as a labourer of the owner and therefore, the Tribunal has wrongly held the insurance company liable.
10. In light of the aforesaid therefore, the appeal is allowed. The appellant insurance company stands exonerated. The impugned judgment and award is hereby quashed and set aside. The amount deposited, if any, by the insurance company before the Tribunal shall be refunded to the insurance company forthwith along with accrued interest.
(R.M.CHHAYA, J.) bjoy Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Oct 07 05:30:15 IST 2017