Gujarat High Court
Kalavatiben Motisinh Divera vs Kamalsinh Chandrasinh Parmar on 29 September, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2668/2019 JUDGMENT DATED: 29/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2668 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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KALAVATIBEN MOTISINH DIVERA
Versus
KAMALSINH CHANDRASINH PARMAR
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Appearance:
MR RG DWIVEDI with MS POOJA H HOTCHANDANI(7765) for the
Appellant(s) No. 1,2,3,4
for the Defendant(s) No. 2
MR HARDIK P MEHTA(6943) for the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 2.1
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/09/2023
ORAL JUDGMENT
1. By way of this Appeal, the Appellants-claimants have Page 1 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined challenged the judgment and award dated 07.09.2018 passed by the learned Motor Accident Claims Tribunal (Main), Chhota Udepur in M.A.C.P. No.498 of 2017 (Old M.A.C.P. No.186 of 2006) wherein the Oriental Insurance Company Limited has been exonerated from the liability to pay the compensation amount to the claimants.
2. Learned Advocate for the appellants - claimants Mr. R.G. Dwivedi submitted that the learned Tribunal has exonerated the Insurance Company from the above liability considering the deceased as a gratuitous passenger while infact he was a labourer on the Tractor. The claimants have also challenged the compensation assessed on the ground that the income has not been assessed in its right perspective and the prospective rise in income has not been considered taking into account the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in 2017 16 SCC 680 and learned Advocate Mr. R.G. Dwivedi would submit that the above decision was to be appreciated. The claimants have raised another contention about the loss of consortium. Learned Page 2 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined Advocate Mr. R.G. Dwivedi submitted that the learned Tribunal has not taken into consideration the decision of the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram reported in 2018 ACJ 2782.
3. The facts of the case as can be succinctly laid down are that on 19.11.2005, the deceased was on the Tractor bearing Registration No.GJ-6-HH-7659, and the respondent No.1 was driving the Tractor in a rash and negligent manner and in full speed; hence, the deceased fell down and the wheel of the Tractor ran over the deceased causing grievous injuries. The deceased was thereafter, taken to Sankheda Government Hospital, but he expired on the way.
4. Learned Advocate for the appellants - claimants submits that the Insurance Company was exonerated observing that there was breach of terms and conditions of the Insurance Policy since the Tractor was insured under the 'Kisan Package Policy' and it was held that except the driver, no other person could be permitted to sit. It is further submitted that it was the specific case of the claimants that the Page 3 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined deceased was sitting beside the driver, the driver was driving the tractor in a rash and negligent manner and the deceased fell down from the tractor and the wheel ran over the deceased. The observations of the learned Tribunal were to the effect that the deceased was sitting on the mud guard of the tractor and was travelling as an unauthorized passenger and thus, it was held that there was breach of the terms and conditions of the above Policy.
5. Referring to the 'Kisan Package Policy', it is submitted that the said Policy has been devised keeping in mind the diverse needs of the farmers engaged in Agriculture and Allied activities. Learned Advocate for the appellants has also referred to Rule 122 of the Gujarat Motor Vehicle Rules, 1989 to submit that the deceased being a bonafide employee of the owner, he could be carried in the goods carriage. The Rule clarifies the permissibility of the carriage of the persons in goods carriage and one person in a light motor vehicle having gross vehicle weight less than 900 Kgs. is a permissible limit. The above Rule permits seven persons to be carried in case of heavy goods carriage. Further reliance is also Page 4 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined placed on the decision of this Court in First Appeal No.3551 of 2017 with Cross Objection No.13 of 2018 in First Appeal No.3551 of 2017 (Reliance General Insurance Company Ltd. v. Bhagvanbhai Kamabhai Ulva and Others) to submit that the said Rule has been appreciated in the said decision, observing that the Insurance Company cannot absolve itself of its liability.
6. Countering the above arguments, learned Advocate appearing for the respondent No.3 - the Oriental Insurance Company Ltd., Mr. Hardik P. Mehta submitted that the Policy issued by the Insurance Company is a 'Kisan Package Policy' which clearly mentions that it is enforceable when the vehicle was used for agricultural purpose only. Here in this case, it is submitted, that the tractor involved was used for purpose other than agriculture and more specifically the passengers were going for the function of 'Swadhyay Parivar' which has been noted in the First Information Report (FIR) at Village Sajanpura. As per the complaint, about 5-6 persons were travelling in the trolley attached with the tractor which was driven by the respondent No.1, the sitting Page 5 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined capacity of the tractor is only one, hence, more than one person travelling in the tractor would amount to breach of terms and conditions of the Insurance Policy and hence, it is submitted that the Insurance Company cannot be made liable to pay the compensation.
7. Further, reliance is also placed by learned Advocate Mr. Hardik P. Mehta on the statement dated 20.11.2005 given to the police authority by the claimant No.1, to submit that she has admitted that about 5 persons were travelling in the vehicle and going for the function of 'Swadhyay Parivar' at Village Sajanpura and the statements before the police authority shows that about six persons were travelling. In addition, the FIR and the statement at Exhibit 33 and chargesheet at Exhibit 38 establishes that the tractor was not used for agricultural purpose and more than one person was travelling in the vehicle at the time of the accident. Hence, there is a specific breach of terms and conditions of the Policy. It is further submitted that the sitting capacity is for only one person, i.e. the driver and therefore more than one person cannot travel in the Page 6 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined vehicle without approval of the seating arrangements from the RTO. It is also submitted that once statement has been given to the Police, the claimant cannot turn around and put up a new case, to make a prayer for compensation.
8. Learned Advocate Mr. Hardik P. Mehta submitted that the learned Tribunal has vividly found that there was breach of terms and conditions of the Policy and has justly exonerated the Insurance Company. Referring to the decision of the Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Ajit Kumar reported in 2003 (9) SCC 668, it is submitted that the Hon'ble Apex Court has held that a person travelling in a goods vehicle when found as passenger, then the insurer is not liable and thus, the 'Agriculture Package Policy' would not cover the risk of those passengers unauthorizedly travelling in the vehicle. Learned Advocate Mr. Hardik P. Mehta has also referred to the decision of the Division Bench of this Court in the case of Mahmad Rafik Mannebhai Ansari v. Gujarat State Road Transport Corporation in First Appeal No.3173 of 2017 and submitted that the Insurance Company was not liable Page 7 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined to honor the claim, as it was found that there was breach of the conditions since the driver was not holding a valid license. Referring to the decision of this Court in the case of New India Assurance Company Limited v. Pruthvisinh Mangalsinh Parmar in First Appeal No.4415 of 2006, it is submitted that the Insurance Company was exonerated as the deceased was travelling on the tractor as an extra passenger, and in consideration of all the above, it was urged that this Court may not exercise its discretion in favour of the claimants.
9. Having heard learned Advocates for the respective parties, perused the records of the case. The cause title before the learned Tribunal shows that the driver and the owner of the vehicle had been made party respondent Nos.1 and 2. Though served, it appears from the record that they have not filed their written statements. The deposition of the claimant No.1 recorded at Exhibit 29 (the widow of the deceased) reflects that her husband was travelling in a Truck bearing Registration No.GJ-6-HH-7659 and because of the rash and negligent driving by the respondent No.1, her husband fell down from the Tractor No. Page 8 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined GJ-6-HH-7659 of the ownership of the respondent No.2 and the wheel of the Tractor went over the deceased causing grievous injuries; the cause of the death has been noted in the post mortem report. The claimant No.1 further states that her husband was working on the said tractor with the respondent No.2 as a labourer and was earning Rs.80/- per day and monthly income @ Rs.2,400/- per month. It was deposed that as the income was not sufficient for the maintenance of the family, the deceased was cultivating agricultural land on a tenancy basis and therefore, was earning a yearly income of Rs.12,000/-. In the cross examination, the evidence of this claimant has not been challenged by the respondents No.1 and 2. From the side of the Insurance Company, questions were put to the claimant, but since she had not seen the accident, she had denied of knowing the fact that her husband (the deceased) was sitting beside the tractor driver. The claimant had confirmed that her husband was sitting on the tractor, as the tractor turned, the accident had occurred. The claimant had also shown her ignorance to the suggestion that her Page 9 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined husband and 4-5 people from their street on that day, had gone on the tractor for the function of 'Swadhyay Parivar'. The owner of the tractor is also from the same village. The claimant No.1 has affirmed that she has no document to show that her husband was working as a labourer on the said tractor nor has produced any evidence to show the income of her husband.
10. Apart from this suggestion, no other fact was brought on record to contradict the say of the claimant that her husband was travelling on the tractor, the owner of the tractor has also not denied and not challenged the deposition of the claimant, there is no denial to the fact that the tractor belongs to respondent No.2 and nothing has come on record to contradict the say of the claimant of her husband being the labourer on the tractor. The complaint was given by Dileep Bharatsinh Diwera and the claimant has admitted that he is residing in the same street. The complaint on 19.11.2005 names No.1 - Virendrasinh Parmar, No.2- Vikramsinh Chandubhai Diwera, No.3 - Sunilsinh, No.4 - Fatehsinh Waghela and No.5 - Motisinh Raisinh Diwera and as per the Page 10 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined complaint, they had gone in the Tractor No. GJ-6- HH-7659 with the Trolley No.GJ-6-W-4449 in the evening at about 6.00 to 6.30, to attend the Programme of 'Swadhyay Parivar' at Village Sajanpura. The tractor was driven by Kamleshwar Chandrasinh Parmar of the same village. It is stated in the complaint that the deceased - Motisinh Raisinh Diwera was sitting in the front on the right side of the driver. While driving, the driver lost control on the tractor and suddenly Motisinh Raisinh Diwera who was sitting on the right side of the driver fell down and the wheel of the tractor ran over him. The fact that the deceased was travelling on the tractor can be verified from the complaint.
11. The 'Kisan Package Policy' is produced on record. Pravinkumar Andresh Jadav from the Oriental Insurance Company has been examined at Exhibit 59. According to his deposition, the Tractor No.GJ-6-HH-7659 was insured and the Policy No.171300 2006 605 was the 'Kissan Package Policy' for the Tractor in the name of Chandrasinh P. Parmar, At : Saradia, PO Gudicha, Ta. Sankheda, District Baroda for the period between 09.11.2005 to Page 11 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined 08.11.2006. It was stated that it is a special type of Policy and had accepted the premium to cover the risk mentioned in the policy. Further the Officer has deposed that the vehicle was a Tractor and as per the Rules only one person, i.e. a driver was allowed to travel on the vehicle. According to the witness, the police papers say that the deceased was travelling by sitting near the Driver and thus, the act on part of the deceased and owner of the vehicle can be termed as illegal as he was travelling in the capacity of a passenger which does not cover the risk of the deceased and it was in violation of the policy conditions. Thus, the Vehicle was used for hire and reward and other persons were going to attend the religious function. The deposition also notes that other vehicle was attached with the tractor and the policy was issued accordingly. Thus, according to the Insurance Company, it is not liable to pay the compensation.
12. The policy produced at Mark 55/1 shows the following details :-
Page 12 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined Section S.I. Rate Basic Loading/ Ld.Disc Ld/Disc Net Details (in %) Premium Discount Rt (in Amount Premium %) (Rs.) .., BULD 50000 05 25 0 0 25 .., JPA 25000 .06 15 0 0 15 .., BAGG 1000 .8 8 0 0 8 SWARAJ 15000 1.48 2220 0 0 2220 TRACTOR, GJ6HH/7659, GJ6W/4449 PREMIUM DETAILS :
Sum Insured : Rs.226,000.00 Basic Premium : Rs.2,268.00 Net Premium : Rs.2,268.00 Total Loading/Extn.: Rs.0.00 Service Tax : Rs. 231.00 Total Discount : Rs.0.00 Stamp Duty : Rs. 1.00 Stamp Duty Chargeable : Yes Total Collection: Rs.2,500.00
13. Thus, as per the say of Pravinkumar Andresh Jadav qua the Kissan Package Policy, it covers the risk as per the premium paid by the insured and the Company would not be liable to pay the amount. It was further stated therein that the vehicle was a tractor and as per Rules, only the driver was allowed to travel in the vehicle. The deceased was travelling with the driver and was sitting near the driver and hence, this act was illegal on part of the owner and the deceased as the deceased was travelling as a passenger. Further, the policy was for exclusive use Page 13 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined for agriculture purpose and when the usage of the vehicle is other than, for what it has been insured, it is submitted that no liability can be laid down on the Insurance Company.
14. The admitted fact is that the deceased was travelling on the tractor. The evidence of the claimant is that her husband was working on the Tractor of the respondent No.2, who was the owner of the tractor, the deceased was sitting on the tractor beside the driver, while rest of the others were there in the trolley attached with the tractor. This fact differentiates the rest of the persons travelling in the trolley and the deceased on the tractor. The respondent No.2 has not denied the fact of the deceased being a labourer.
15. Rule 122 of the Gujarat Motor Vehicle Rules, 1989 requires specific mention since it specifies the carriage of persons in the goods carriage. Relevant part of Rule 122 is reproduced as under :-
"122. Carriage of persons in goods carriages.- (1) Subject to the provisions of this rule, no person shall be carried in a goods carriage:Page 14 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023
NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined Provided that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge, or a police officer in uniform, traveling on duty, may be carried in a goods carriage:
Provided further that the total number of persons so carried shall not be more than -
(i) one, in case of a light motor vehicle having gross vehicle weight less than 900 kilograms;
(ii) three, in case of any other light motor vehicle;
(iii) five, in case of any medium goods vehicle;
(iv) seven, in case of any heavy goods vehicle.
Provided further that the provision of second proviso to this sub-rule shall not apply in case where integral seating arrangements providing a reasonably comfortable seating space for each person has been made in the goods carriage for more than the number specified in the second proviso.
(2) ....
(3) ....
(4) ....
(5) ....
(6) No person shall travel in a goods carriage in contravention of the provisions of this rule."
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 Page 15 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined 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.
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 Page 16 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined the Insurance Company would be liable to pay the compensation amount.
18. At this stage, it is specifically submitted by learned Advocate for the appellants - claimants Mr. R.G. Dwivedi that the claimant has specifically given her evidence about the deceased's daily income. The claimant has also given her evidence that her husband was earning from the land which was under
tenancy. The said fact has not been proven by way of any documentary evidence but at the same time, the owner has not denied the evidence of the claimant. Admittedly, no income from agricultural work has been proven but the consideration can be given to the skill of managing the agricultural land. The date of accident is 19.11.2005, therefore, the Minimum Wages Schedule would be Rs.2,400/- per month and adding the managerial skill, the learned Tribunal has rightly assessed the income of the deceased as Rs.3,000/- per month which is just and proper. The claimant/s could not specifically prove the age of the deceased by way of documentary evidence; the learned Tribunal has considered the age of the deceased as 40 years relying on the post Page 17 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined mortem report and the inquest panchnama. There is no reason to take a contrary view. Considering the age of the deceased as 40 years, relying on the decision of the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in 2017 16 SCC 680, 25% rise in income is required to be assessed. Therefore, the monthly income is assessed @ Rs.3,750/-. ¼ deduction is required to be made towards personal expenses, hence, ¼ of Rs.3,750 is Rs.937.50. Therefore, Rs.3,750/- minus Rs.937.50 comes to Rs.2,812.50 rounding up, Rs.2,813/- is the monthly dependency. Thus considering the annual income by applying the multiplier, the future loss of income can be considered as Rs.2,813/- per month x 12 months x 15 multiplier, which comes to Rs.5,06,340/-.
19. The learned Tribunal has Rs.15,000/- each under the heads of loss of estate and towards funeral expenses. However, the loss of consortium has not been granted. There are 4 dependents, i.e. the widow, the minor children and the aged mother. Hence, Rs.40,000 x 4 dependents would come to Page 18 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined Rs.1,60,000/- under the head of loss of consortium following the decision of the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. (supra).
20. Thus, the computation can be made as under :-
Details Amount (Rs.)
Dependency loss 5,06,340/-
Loss of Estate 15,000/-
Funeral Expenses 15,000/-
Loss of Consortium 1,60,000/-
TOTAL 6,96,340/-
21. The learned Tribunal has awarded an amount of Rs.5,76,250/- with rate of interest @ 7.5% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.1,20,090/- (Rs.6,96,340/- minus Rs.5,76,250/-). In the result, the present respondent/s are directed to deposit the amount within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ Page 19 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined 7.5% per annum from the date of the application and the disbursement of the compensation amount be made in the following manner from their respective share in the ratio of 60 : 10 : 10 : 20 to the claimants - widow, two sons and mother, from the amount as per their share, the amount to be paid in cash on verification of identity :-
Claimant No.1 (the widow) : 80% Claimant No.2 (son) : 60% Claimant No.3 (son) : 60% Claimant No.4 (mother) : 100%
22. Rest of the amount be deposited in a Fixed Deposit Receipt (FDR), with any nationalized Bank, in the name of the claimant/s, initially, for a period of one year, without any reference to this Court. The FDR shall be given to the claimant/s. However, no any advance, loan or encashment against the Fixed Deposit/s be permitted by anyone.
23. In view of the above, the Appeal is allowed and the judgment and award dated 07.09.2018 passed by the learned Motor Accident Claims Tribunal (Main), Page 20 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023 NEUTRAL CITATION C/FA/2668/2019 JUDGMENT DATED: 29/09/2023 undefined Chhota Udepur in M.A.C.P. No.498 of 2017 (Old M.A.C.P. No.186 of 2006) stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J) CAROLINE Page 21 of 21 Downloaded on : Fri Oct 06 20:31:28 IST 2023