Gujarat High Court
United India Insurance Co Ltd Through ... vs Bakulkumar Prabhudas Patel on 9 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/3735/2009 JUDGMENT DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3735 of 2009
With
R/FIRST APPEAL NO. 786 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 CO LTD THROUGH AUTHORISE SIGNATORY
Versus
BAKULKUMAR PRABHUDAS PATEL & 5 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Defendant(s) No. 3
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1
MR RAHUL K DAVE(3978) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2,4,6
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 09/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021
1. Feeling aggrieved and dissatisfied by the judgment and award dated 31.01.2008 passed by the Motor Accident Claims Tribunal (Aux), Viramgam, Dist. Ahmedabad in MACP No. 1257 of 2001, the insurance company has preferred First Appeal No. 3735 of 2009, whereas the original claimant has preferred First Appeal No. 786 of 2009 for enhancement under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
2. Following facts emerge from the record of the appeal -
2.1 That on 29.01.2001, present claimant Patel Bakulkumar Prabhudas and claimant of MACP No. 1258 of 2001 were going on motorcycle Kavasaki Bajaj bearing registration no.GJ-1-AE-1958 and the same was driven by the claimant of MACP No. 1258 of 2001 and the present claimant was sitting as pillion rider in the said motorcycle. They both were going to distribute invitation cards of the marriage ceremony of the brother of the present claimant. At about 2.45 PM when they reached near village Kaliyana, at that time, S.T. bus bearing registration no. GJ-18V-6461 , being driven in rash and negligent manner, with full speed, collided with the motorcycle and both driver and the pillion rider, i.e., the original claimant, sustained grievous injuries. FIR came to be registered with the jurisdictional police station, exhibit 32. The injuries were such that the right leg of the original claimant was required to be amputated. Claim Petition under Section 166 of the Page 2 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 came to be filed being MACP no.1257 of 2001 claiming compensation of Rs.25,00,00/- by the original claimant. The claimant had deposed at exhibit 31. Various documentary evidences were relied upon such as FIR at exhibit 32, panchnama of the place of incident at exhibit 33, RC Book of the motorcycle at exhibit 35, school leaving certificate of the original claimant at exhibit 40, village forms no. 8A and 7/12 at exhibits 37 and 38, ration card at exhibit 39, education certificate at exhibit 53 to 55, MLC certificate of the original claimant issued by the Dr. Dinesh N. Thakkar of orthopaedic hospital of Sanand, at exhibit 43, medical certificate issued by Dr. Ashvin Lakhani at exhibit 46, bills of the treatment at exhibit 44, disability certificate at exhibit 49, charge-sheet at exhibit 75. The Tribunal after appreciating the evidence on record was pleased to award compensation as under -
Future loss of income - Rs.1,83,600/-
Actual loss of income - Rs. 12,000/-
Medical expenses - Rs. 30,000/-
Pain, shock and suff. - Rs. 25,000/-
Transport and other exp.- Rs. 10,000/-
Future Expenses - Rs. 40,000/-
--------------
Total Rs.3,00,600/-
==============
Thus, the Tribunal was pleased to award
compensation of Rs.3,00,00/- with interest at the
rate of 7.5% from the date of filing of the claim petition till its realisation. The claim petition was thus partly allowed and being aggrieved by the same, the present appeals are filed as observed Page 3 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 hereinabove.
3. Heard Mr. Maulik Shelat, learned advocate for the insurance company and Mr. Rahul Dave, learned advocate for the original claimants, Mr. Devang Bhatt, learned advocate for Mr. H.S. Munshaw for ST Corporation and Mr. Hardik C. Raval, learned advocate for ST Corporation in First Appeal No. 786 of 2009. We have also perused the original Record and Proceedings.
4. Mr. Shelat, learned counsel appearing for the insurance company has contended that the original claimant was a pillion rider of the motorcycle involved in the accident. Mr. Shelat further relying upon the policy of the Bajaj Scooter, contended that it was an "Act only" policy and therefore, the insurance company is not liable for the claim raised of pillion rider as the risk was not covered. Mr. Shelat further contended that even the Tribunal has noted the said fact, the same has not been dealt with at all. Mr. Shelat in order to buttress his arguments, relied upon the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. reported in (2008) 7 SCC 428 and the judgment in the case of National Insurance Co. Ltd. Vs. Balakrishnan reported in (2013) 1 SCC 731 as well as the judgment of the learned Single Judge (Coram :
N.V. Anjaria, J.) in FA No. 505 of 2015 dated 22.01.2021. Mr. Shelat further contended that the insurance policy in question was renewed in the name of Bhavanbhai K. Patel, exhibit 36, the original Page 4 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 owner of the scooter, who expired in the year 1996.
Relying upon the Division Bench judgment of this Court reported in the case of The United India Insurance Co. vs. Manjulaben Purshottamdas Patel reported in 1994(1) GLR 269, it was contended by Mr. Shelat that as the policy exhibit 36 was renewed in the name of a dead person, no valid contract exist and therefore, the insurance company is not liable. On the aforesaid two grounds, it was contended by Mr. Shelat that the appeal deserves to be allowed.
5. Per contra Mr. Rahul Dave, learned counsel appearing for the original claimant contended that the contention as regards "Act only" policy was not taken before the Tribunal and therefore, even though the same is point of law, the same cannot be raised in this appeal for the first time. Mr. Dave contended that the judgments relied upon by Mr. Shelat would not apply to the present case. As far as the other contention as regards the policy exhibit 36 being renewed in the name of dead person is concerned, Mr. Rahul Dave contended that once the premium is accepted by the insurance company, the same would amount to a valid contract and therefore, the contention that it is not a valid contract is a misnomer on the part of the insurance company. Mr. Rahul Dave, learned counsel appearing for the appellant has relied upon the judgment of the Apex court in the case of United India Insurance Co. Ltd. Vs. Santro Devi and Ors. reported in 2009(1) SCC 558 to buttress the said argument. Mr. Rahul Dave Page 5 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 further contended that the Tribunal has also committed an error in determining the income of the claimant. Referring to the documentary evidence in form of village form no.7/12, exhibits 37 and 38, it was contended by Mr. Dave, learned advocate for the original claimant that only because the agricultural lands were in name of father of the original claimant, the Tribunal has committed an error in disbelieving the income of the deceased at Rs.10,000/-. Mr. Dave also contended that the Tribunal has committed an error in not granting any prospective income. Mr. Dave contended that the injury is severe in nature and the original claimant had to undergo amputation of right leg, which has impaired his future life and its prospects. Mr. Dave also further contended that the Tribunal has awarded a meagre amount of Rs. 25,000/- as compensation under the head of pain, shock and suffering and Rs.10,000/- under the head of Special Diet and attendant and transportation, which deserves to be enhanced. Mr. Dave also contended that considering the degree of disability, as determined by the Tribunal at 30% is misreading of the medical evidence on record. According to Mr. Dave, though the evidence shows that after the accident, the original claimant studied further and is now doing a job of teacher, because of the amputation of right leg, the claimant suffers from permanent disability of the body as a whole, i.e, much greater than what is determined by the Tribunal. Mr. Dave also contended that considering the grievous permanent injuries sustained Page 6 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 in the accident, the Tribunal ought to have granted some compensation for future medical expenses. On the aforesaid grounds, Mr. Rahul Dave contended that the appeal filed by the insurance company being meritless, deserves to be dismissed and the appeal filed by the original claimant deserves to be allowed in toto as prayed for.
6. Mr. Hardik Raval as well as Mr. Devang Bhatt, learned counsels appearing for the ST Corporation in the respective appeals has submitted that this Court may pass appropriate order.
7. No other or further submissions have been made by the learned counsel appearing for the respective parties.
8. Upon re-appreciation of the evidence at exhibit 36, which is the policy, the same clearly reveals that it was renewed from 18.04.2000 to 17.04.2001 and the same was in the name of Bhavanbhai K. Patel. The insurance policy at exhibit 36 clearly mentions that it is an Act only policy. Sections 146 and 147 of the Act provides as under -
"146. Necessity for insurance against third party risks.--(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force, in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter:Page 7 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022
C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).
(2) The provisions of sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for purposes not connected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1), any vehicle owned by any of the following authorities, namely:--
(a) the Central Government or a State Government, if the vehicle is used for purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State Transport Undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in such manner as may be prescribed by appropriate Government."
"147. Requirement 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) insurers 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 Page 8 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 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 a 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."
9. It is an admitted position that the policy in question is Act only policy. The contention raised by Mr.Dave that the said contention was not raised before the Tribunal is of no avail. We find from the judgment that the said question was raised but the same has not been dealt with by the learned Tribunal. The Hon'ble 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 -
Page 9 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 "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 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 Page 10 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 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 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."
Page 11 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022C/FA/3735/2009 JUDGMENT DATED: 09/12/2021
10. Similarly in the the case of National Insurance Co. Ltd. Vs. Balakrishnan (supra), the Hon'ble Apex Court considering the provisions of Section 147 of the Act, has also considered the IRDA Circular and has taken a similar view. The learned Single Judge in First Appeal No. 505 of 2015, has very lucidly considered the distinction between the Act only policy and has held that the liability of the insurance company to compensate the victim of the accident under the Act shall be limited to the nature of the policy and the terms and conditions of the contract of the insurance. Hence, in the case on hand, as the policy in question exhibit 36 is Act only policy, the risk of the pillion rider would not be covered. Thus, the insurance company is exonerated from its liability to pay compensation. As far as the next limb of argument put forward by Mr. Shelat for the insurance company is concerned, the same is covered by the judgment of the Apex Court in the case of Santro Devi (supra) wherein, in para 26, the Hon'ble Apex Court has observed thus-
"In this case, the statute itself takes care of validity of the contract. It is mandatory. Once a valid contract is entered into, only because of a mistake or otherwise, the name of the original owner has not been mentioned in the certificate of registration and/or the documents of hypothecation of the vehicle with the bank had still been continuing in his name, it cannot be said that the contract itself is void unless it was shown that in obtaining the said contract a fraud had been practised. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. It cannot, thus, be said that a case of fraud in the matter of entering into the Page 12 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 contract of insurance had been made out by the appellant."
11.Though the insurance policy is in the name of a dead person, following the ratio laid down by the Apex Court in the case of Santro Devi (supra), it cannot be said that there is no valid contract. It is not the case of the insurance company that no premium has been paid by the owner of the vehicle and that the same has not been received.
12. Upon considering the evidence of the medical certificate and other medical papers as well as photographs at exhibit 52, the original claimant has passed through much pain and agony. The photographs at exhibit 42 shows that his right leg below the knee was required to be amputated. Considering the degree of the serious injuries caused because of the accident, we quantify the disability of the body as a whole as 50%. As far as the income is concerned, it is an admitted position that the claimant was just 22 years old and was studying and was not serving anywhere. The extracts of the village form no. 7/12 at exhibits 37 and 38 does not inspire any confidence in the contention raised by Mr. Dave that the income of the deceased-original claimant at the age of 22 who was studying and was staying with the parents would be Rs.10,000/- per month. Hence, the income determined by the Tribunal at Rs.3,000/- considering the date of the accident to be 29.01.2001, is reasonable and proper to arrive at just compensation. Upon re-appreciation of the evidence on record, this Court is of the opinion that Page 13 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 the original claimant is entitled to enhanced compensation for pain, shock and suffering, special diet, attendance and transportation. Considering the fact that the original claimant had to get his right leg below the knee amputated because of the injury he sustained in the accident, the claimant would be entitled to reasonable amount for future medical expenses. We hasten to add that while determining the amount for future medical expenses, we have also taken into consideration the fact that after the accident, the original claimant had studied further and was doing the job of Vidhya Sahayak/teacher. Having come to the aforesaid conclusion therefore, we hold that as it is an Act only policy, the risk of the claimant as pillion rider would not be covered. However, as already held by the Tribunal, the drivers of both the vehicles are composite negligent. Keeping the income of the original claimant as it is as determined by the Tribunal at Rs.3,000/-, we are of the considered opinion that the considering the degree of injury sustained by the original claimant, the original claimant would be entitled to increase in income by way of prospective income to the tune of 40%. Upon re-appreciation of the evidence on record, we quantify the amount of compensation under the head of pain, shock and suffering at Rs.50,000/-, special diet and attendant at Rs.15,000/-. On the same grounds, we deem it fit to award Rs.40,000/- as future medical expense. However, such amount shall not bear any interest as held by the Hon'ble Apex Court in the the case of R.D. Hattangadi Vs. M/s.
Page 14 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 Pest Control (India) Pvt. Ltd. reported in AIR 1995 SC 755.
13. Having come to the aforesaid conclusion therefore, the original claimants would be entitled to compensation as under -
Rs.3,000/- (income) + Rs.1,200/- (40% prospective income) = Rs.4,200/- - Rs.2100/- (50% disability) = Rs.2,100/- X 12 X 18 (multiplier) = Rs.4,53,600/- (Future Loss of Income) Future Loss of income - Rs.4,53,600/- Pain, shock and suffering - Rs. 50,000/-
Sp.diet, attendant and
transportation - Rs. 15,000/-
Medical expenses - Rs. 30,000/-
Actual loss of income
(4 months) - Rs. 3,000/-
Future medical exp. - Rs. 40,000/-
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Total compensation Rs.6,00,600/-
==============
14. Thus, the original claimant, i.e., appellant of First Appeal No.786 of 2009 would be entitled to total compensation of Rs.6,00,600/-. As the Tribunal has awarded Rs.3,00,000/-, the original claimant would be entitled to additional amount of Rs.3,00,600/-. However, as the accident has occurred two decades ago, the additional amount of Rs.3,00,600/- would bear interest of 6% from the date of filing of the claim petition till its realisation. The appeal filed by the insurance company is partly allowed and the appeal filed by the original claimant Page 15 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022 C/FA/3735/2009 JUDGMENT DATED: 09/12/2021 also stands partly allowed. The impugned judgment and award stands modified as per this judgment and award.
15. The additional amount shall be paid by the joint tortfeasers within a period of 8 weeks from the date of receipt of the copy of this judgment and order. The record and proceedings be transmitted back to the Tribunal. The amount which is deposited by the insurance company lying in FDR shall be refunded to the insurance company with proportionate interest and cost. The joint tortfeasers shall deposit the amount as per this judgment and order within a period of two weeks from the date of the receipt of the present judgment and order and the Tribunal shall refund the amount as deposited by the insurance company accordingly.
(R.M.CHHAYA,J) (MAUNA M. BHATT,J) BIJOY B. PILLAI Page 16 of 16 Downloaded on : Wed Jan 12 08:37:37 IST 2022